Law in Times of Crisis.: Festschrift for Yoram Danziger. [1 ed.] 3428189418, 9783428189410

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Law in Times of Crisis

Festschrift for Yoram Danziger

Edited by

Eric Hilgendorf

Duncker & Humblot . Berlin

ERIC HILGENDORF (Ed.)

Law in Times of Crisis

Schriften zum Strafrechtsvergleich Herausgegeben von Prof. Dr. Dr. Eric Hilgendorf, Würzburg und Prof. Dr. Brian Valerius, Passau

Band 20

Law in Times of Crisis Festschrift for Yoram Danziger

Edited by

Eric Hilgendorf

Duncker & Humblot · Berlin

Bibliographic information of the German national library The German national library registers this publication in the German national bibliography; specified bibliographic data are retrievable on the Internet about http://dnb.d-nb.de.

All rights reserved. No part of this book may be reproduced, translated, or utilized in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. © 2024 Duncker & Humblot GmbH, Berlin Typesetting: 3w+p GmbH, Rimpar Printing: Beltz Grafische Betriebe GmbH, Bad Langensalza Printed in Germany ISSN 2364-8155 ISBN 978-3-428-18941-0 (Print) ISBN 978-3-428-58941-8 (E-Book) Printed in no aging resistant (non-acid) paper according to ISO 9706

Internet: http://www.duncker-humblot.de

Message from the Dean As Dean of the Faculty of Law, University of Würzburg, I very much welcome the initiative to publish a Festschrift for former Israeli Supreme Court Justice Yoram Danziger, who is now a professor at the renowned Tel Aviv University. In these difficult times, when the Israeli constitutional system is under more pressure than ever before, it is extremely important to send a signal of solidarity to our Israeli colleagues. Our faculty’s collaboration with Yoram Danziger dates back many years. Danziger has participated several times in international summer schools at our faculty and has given widely acclaimed lectures. His son organized a highly appreciated exhibition of his paintings in the faculty’s Max Stern Cellar, dedicated to the memory of Max Stern, a Jewish wine merchant who emigrated to the United States in 1938. Time and again, colleagues from our faculty have visited Israel. I am especially grateful to Yoram Danziger for receiving and generously hosting alumni of our faculty at the Israeli Supreme Court. May this commemorative publication illustrate our gratitude and support to the honored jubilarian in difficult times! Ad multos annos! Würzburg, May 2023

Christof Kerwer

Foreword On November 26, 2023, Yoram Danziger, professor at Tel Aviv University and former judge of the Supreme Court of Israel, celebrated his 70th birthday. Colleagues, students, friends and companions of Justice Danziger have taken this as an opportunity to compile a volume that is intended both to relate to various issues concerning the Israeli legal system and to reflect the broad spectrum of Danziger’s thought and work. Yoram Danziger was born in Tel Aviv in 1953. He graduated from the Herzliya Hebrew Gymnasium in 1971. From 1972 to 1975 he served in the Israeli army. In 1980 he graduated with a law degree (LL.B.) from Tel Aviv University. The same university also awarded him the Master of Laws (LL.M.) the following year. In 1983 he was awarded a doctorate in law. His thesis was entitled “The Duties of Directors of Target Companies in Takeover Bids”. Danziger wrote it at the London School of Economics under the supervision of Professor Lord Wedderburn, the former Dean of the faculty. After his return, Danziger founded the law firm “Danziger, Klagsbald & Co.” in Tel Aviv (Ramat Gan) in 1984, in which he served as managing partner and head of the corporate department of the firm until 2007. Danziger’s main area of work was commercial law. Moreover, he was an active member (as well as a board member for a few years) of the Israeli Association of Civil Rights and the founder of the Tel Aviv branch (back in 1980). In 2000 he published a book entitled “The Right to Information about the Company”. Danziger’s other publications are also mainly related to business and corporate law. In 2007, Danziger was appointed as a justice on the Israeli Supreme Court. The appointment of a lawyer practicing in the private sector was then, and still is, very unusual. Many of his decisions were marked by their clear orientation toward secular liberalism and human rights, including freedom of expression. In 2018, Danziger resigned from his judgeship almost six years before his official retirement, with private but probably also political reasons playing a role. At the time, the liberal newspaper Haaretz ran the headline “Israeli Supreme Court Loses Most Liberal Justice.” After his retirement, Danziger was appointed as chairman of the Public Committee for the Prevention and Correction of Wrongful Convictions. He also serves as a member and a board member of the Council of the Israeli Science Foundation. In 2022 he was appointed by the President of Israel, Mr. Isaac Herzog, as chairman

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Foreword

of the Advisory Committee to the President for the awarding of the President’s medal of honor. In addition to his highly successful legal and judicial activities, Danziger became active in academics at an early stage. In 1983 he became a lecturer on the law faculty at the Tel Aviv University, specializing in corporate law. From 1984 to 1988, he also taught at the School of Management of the same university. In addition, Danziger served as an adjunct lecturer at the College of Management (Rishon LeZion) from 2011 to 2018. In 2018, after retiring from the bench, Danziger was appointed professor at Tel Aviv University. Since then, he has headed the LL.M. program of the Faculty of Law. In 2021 he was awarded the Order of Merit of the Federal Republic of Germany. In the dispute over the curtailment of the powers of the Israeli Supreme Court in favor of the government, which has been going on since 2022, Danziger has been actively engaged as a defender of the separation of powers and the rule of law. In May 2023, he spoke at one of the “Saturday demonstrations” in Tel Aviv in front of more than 200,000 people. Danziger’s family has German roots, which may be one of the reasons why Yoram Danziger has traveled to Germany a number of times. A special connection exists to the old town of Würzburg, where Danziger has lectured several times at the JuliusMaximilians-University and participated in conferences and workshops. Yoram Danziger has been married to Mrs. Ronit Danziger since 1977. The couple has three children (Yonathan, Daniela and Yoav) and three grandchildren (Cyan, Noga and Maya). It is not easy to characterize in just a few words a person as multifaceted and active in many areas as Yoram Danziger. Four qualities that characterize Danziger are vigor, acumen, practical understanding, and optimism – all of which make the most appropriate combination for a lawyer and judge. Danziger belongs to Israel’s most respected and important jurists. This Festschrift is acclaimed at making his work and thought even better known beyond the borders of Israel. Ad multos annos!

* I would like to thank Mrs. Sina Tenbrock-Ingenhorst, Mr. Roger Fabry, Mrs. Leonora Qerimi and Mrs. Amelie Pauly very much for their help in editing the texts. In addition, I would like to thank Mrs. Larissa Szews from Duncker & Humblot for her excellent work. I would also like to express my sincere thanks to the Schulze-FielitzStiftung Berlin for a generous printing grant. Veitshöchheim, July 2023

Eric Hilgendorf

Jewish Lawyers in Germany – an Asset for the Liberal Constitutional State By Brigitte Zypries* On 21st February 2021, President Frank-Walter Steinmeier opened the year of celebration “1700 years of Jewish life in Germany” at a ceremony in Cologne, Germany’s oldest Jewish community. In 2021, Jews had been living on the territory of present-day Germany for 1700 years. The year of celebration was the occasion for an enormous number of events in all disciplines throughout Germany. Germany reaffirmed: in literature, philosophy, painting or music, in science, medicine, in business – Jews have helped write and shape our history, Jewish people have made a decisive contribution to Germany’s awakening to modernity. For some years now, Germany’s lawyers have been increasingly concerned with the question of the extent to which the National Socialist past of judges at the highest federal courts had an impact on the jurisprudence of those courts after 1945. Of the highest federal courts, the Federal Supreme Court, the Federal Labour Court and the Federal Social Court have issued orders to research the National Socialist past of their judges. The Supreme Federal Finance Court provides information about its history on its website without such a reference, and the Federal Administrative Court, together with the University of Leipzig, launched a project some time ago with the task of coming to terms with the past of its first generations of judges. The 26th Annual Conference of the German-Israeli (DIJV) and the Israeli-German (IDJV) Lawyers’ Associations in May 2022 in Bonn, at which Professor Danziger thankfully provided important ideas for the whole conference in his keynote speech, also dealt with the topic. Dr Rainer Schlegel, the President of the Federal Social Court, and Dr Peter Frank, the Federal Public Prosecutor at the Federal Supreme Court, spoke about projects to come to terms with the history of their institutions and sparked a lively discussion among the participants. For years, the DIJV has been calling for lawyers of the post-war period to come to terms with the National Socialist past. We demand and support academic reappraisal by the highest federal courts and have also been involved in the campaign: “Rename Palandt”. This commitment is based on the realisation that only those who have come to terms with their past and learned lessons from it can shape the future. * Brigitte Zypries was German Federal Minister of Justice and is the President of the Israeli-German and German-Israeli Lawyers Association.

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An honest look at the 1700 years of Jewish life in Germany was the goal of the Year of Celebration. For “only in this way can we draw lessons for the present and for the future. That is and remains our responsibility!” (Federal President Frank-Walter Steinmeier in his opening speech). As part of the Year of Celebration, the Ministry of Justice and Equality of SaxonyAnhalt organised an exciting event on 1st September 2021 entitled “Jewish jurists on the territory of present-day Saxony-Anhalt: shapers of international history and German legal culture”. For example, Arthur Ruppin, a founder of Tel Aviv, was a legal trainee at the Magdeburg Regional Court. I took part in that conference. While preparing the welcoming address, I noticed that the German-Israeli and the Israeli-German Lawyers’ Associations, of which I am president, had not yet dealt with the importance and the necessity of a culture of remembrance of the Jewish heritage and Jewish faith with regard to the interpretation of law for us lawyers working today. We were and are primarily interested in a judiciary, a public prosecutor’s office and a legal profession that braves neo-Nazi hostility and is determined to stand up against the right. The question of whether religion influences the interpretation of law by lawyers of the past or present has not yet been the subject of a conference. But, could that be a theme? Would that be important in Germany today? Regardless of whether lawyers work as lawyers, judges, public prosecutors, administrative or association lawyers or whatever – all of them, regardless of whether they are Christians, Muslims, Jews or atheists – all lawyers must apply the law that is applicable in Germany and Europe. During the 19th century, the modern state consistently asserted its exclusive claim to lawmaking and thus increasingly withdrew the right of religious communities to legislate. That applied to Jewish law just as much as it did to the Canon Law of the Catholic Church. In Germany, this was most evident in respect of family law issues. For example, on 1st January 1876, civil marriage was introduced in the German Reich and exclusively church-based marriage was abolished. The fact is that the Catholic Church to this day does not consider a state marriage to be a valid marriage – it lacks an essential element: the administration of the sacrament of marriage – but that does not affect the validity of state marriage. The state makes the law and the religious faith of those applying the law should not matter in a democratic constitutional state. Faith is a private matter. But we all know that the interpretation of legal texts depends decisively on the prior understanding of the users. This pre-conception is essentially shaped by upbringing – in the parental home, in kindergarten, at school, in dealings with the peer group.

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And of course religious upbringing also shapes a person. Depending on which doctrines or basic attitudes the religion advocates, the people – and thus also legal practitioners – will be shaped by it. Thus also those who apply the law – the judges – will be more lenient and understanding or harsh and implacable. Regardless of whether it is a matter of dealing with oneself or others or of interpreting the applicable law. Jewish law has some special features. It is not the law of a state, but of a people: the people of Israel. In its more than 3,000-year history, the people of Israel have lived predominantly under foreign rule and, most importantly, in the Diaspora: Jews have lived and continue to live in many different countries and cultures, under very different systems of rule and law. Although these systems have always had an influence on the development of Jewish law, Jewish law has nevertheless been able to retain its independence over the centuries. The fact that Jewish communities often enjoyed – to varying degrees – autonomy in legal matters contributed significantly to that. For religious Jews, however, the real reason that Jewish law has retained its independence and distinctiveness to this day is the fact that it is not based on the authority of an elected legislature, but is founded on the covenant of the people of Israel with God. Its original source and its very core is therefore divine revelation as expressed in the Torah and the other books of the Hebrew Bible. Jewish law is linked back to God – with the substantive consequence of a harmonious combination of severity and leniency. Jewish law seeks to find the middle way between strict demands and benevolent indulgence – a middle way that the more formal, so to speak ethically distant secular state law is not necessarily able to find in the same way. According to Rabbi Professor Walter Homolka, the most important consequence of the combination of religion, ethics and law that is typical of Judaism is an ever vigilant sense of social justice. This influence of ethical considerations on Jewish law is also reflected in the view that one should not insist on claims based on a strict interpretation of the Torah, but should rather exercise leniency and restraint. With such a general understanding, Jewish legal practitioners may come to different conclusions when interpreting, for example, the German Civil Code (BGB), in contractual matters than someone who grew up in a strict Protestant or Catholic family. It is therefore not surprising that lawyers of the Jewish faith were among the liberals during the German Empire and the Weimar years. As liberal legal policymakers, they made fundamental contributions to the unification of the German legal systems in the empire. In 1873, for example, the national liberal lawyer Eduard Lasker, together with Johannes von Miquel, succeeded in hav-

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ing the Reich Constitution amended and the Reich given legislative responsibility for all civil law. In doing so, they created the preconditions for the drafting of the Civil Code, in the development of which, in turn, the Jewish jurist Prof. Levin Goldschmidt played a decisive role. There were several Jewish ministers and secretaries of state in the Weimar Republic. For example, the secretary of state in the Reich Office of the Interior, Hugo Preuß, who was in charge of the first draft of the Weimar Reich Constitution, or the longserving secretary of state for justice, Curt Joel, who was certainly the most politically influential lawyer of Jewish origin in the Weimar Republic. The professional importance of lawyers in the Empire and the Weimar Republic lay – in addition to political and legislative activity – in the founding of institutes, scientific journals and as editors and authors of seminal publications. One example is the internationally renowned Professor Ernst Rabel, who founded the Kaiser Wilhelm Institute for Foreign and International Private Law in 1926, the second oldest of today’s Max Planck Institutes for Law. In 1927 he founded the celebrated Zeitschrift für ausländisches und internationales Privatrecht. Many Jewish lawyers were involved as publishers and editors of legal journals. The Deutsche Juristen-Zeitung (German Lawyers’ Newspaper) was published from 1896 by the Jewish publisher Otto Liebmann, who was known above all for supplementing the major academic commentaries with short commentaries more suitable for practical use. Liebmann’s most important short commentary was on the BGB, written by three lawyers, two of whom were Jewish. From 1939 they were replaced by the Palandt. Otto Palandt was president of the National Socialist Reich Examination Office – he consistently ignored his predecessor. Only last year, Beck Verlag – which had bought the publishing house from Liebmann in December 1933 – announced that the Palandt commentary would be renamed – it is now called Grüneberg, after the judge at the Federal Supreme Court Christian Grüneberg. The initiative “#Palandt umbenennen”, founded in 2016, was successful! Have you noticed that so far you have only read the names of men? That is of course because in the German Empire women were denied access to the administration of justice (i. e. the professions of judge, lawyer, public prosecutor, administrative lawyer). It was not until the Weimar Republic that women were admitted to the state law examinations. As one of the first women in Germany, the Jewish Marie Munk was admitted to the bar in 1924, and in 1930 she had the title of Landgerichtsrätin (district court councillor). Today, Marie Munk is considered one of the most important marriage and family law experts of the Weimar period. In addition to her proposals on the law of children born outside of wedlock, divorce law and marriage law, together with Margarete Berent, she drew up proposals for reforming the law on matrimonial property, which much later formed the basis for the introduction of the community of ac-

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crued gains. Marie Munk was dismissed from the judiciary in 1933 and emigrated to the USA. Jewish lawyers have thus had a considerable influence on the legal development of today’s Germany. It would be interesting to see what the situation is like for lawyers of the Jewish faith working in Germany today. Is there a significant group that is involved in legal policy? Do they themselves have the impression that their upbringing in the Jewish faith influences their application of the law? The DIJV and the IDJV will not run out of topics and we look forward to many more events with our honoured jubilarian.

Contents

I. Constitutional Law and Legal Theory Daphne Barak-Erez Reparations for Holocaust Survivors – Searching for Justice in Israel and Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Leandro Dias and Ezequiel Heffes New Typologies of Non-International Armed Conflict? An Analysis of Article 8(2)(f) of the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Avigdor Klagsbald Justice Danziger’s Judgment on the Boycott Law. H.C.J. 5239/11 Uri Avneri v. The Knesset (Reported in Nevo, 15 April 2015) . . . . . . . . . . . . . . . . . . . . . . . . .

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Karl Kreuzer Is Islamic Shariah Law Applicable under German Constitutional Law? . . . . . . .

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Clemens Lückemann Large-Scale Disasters in Germany and Israel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Yoram Rabin and Alon Rodas The Role of the State Comptroller of Israel in Combating Government Corruption and Promoting Moral Integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Stefanie Schmahl Erosion of the Rule of Law: Curtailing the Powers of Constitutional Courts . . . 133 Kyrill-A. Schwarz How the Law Deals with Troublemakers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Alex Stein Probabilism in Legal Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Christoph Weber and Caroline S. Rapatz Restoring Stolen Dignity. Reappraisal of the National Socialist Unlawful Revocation of Doctoral Degrees at the University of Würzburg . . . . . . . . . . . . . . . . . 187

II. Criminal Law and Criminal Justice Susanne Beck Criminal Law in Intercultural Dialogue. On the Method of Culture-Based Comparative Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

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Mordechai Kremnitzer and Khalid Ghanayim On the Elements of the Offence of Homicide with Intention to Facilitate the Commission of Another Offence or Escape Justice, According to Section 301 A(a)(2) of the Israeli Penal Code (Amendment 137, 2019) . . . . . . . 231 Anat Meyassed Cnaan and Talia Eva Goldshtain Legal Realism and Forensics: Why the Legal System Won’t Go All the Way in Limiting Forensic Evidence to its Actual Capacity . . . . . . . . . . . . . . . . . . . . . . . 245 Justin Monsenepwo OHADA’s Balancing Act Between the Community’s Need for a Harmonized Criminal Law and the Member States’ Hold on National Sovereignty . . . . . . . . 277 Rottem Rosenberg Rubins Eyewitness Identification in Israel: A Theoretical and Comparative Perspective 293 Yaniv Vaki Condign Punishment Appropriate to the Extent of Proof . . . . . . . . . . . . . . . . . . . 317 Brian Valerius Legal Measures Against Hate Speech and Hate Crime . . . . . . . . . . . . . . . . . . . . 335 Shizhou Wang On the Characteristics of Joint Crime in Chinese Criminal Law . . . . . . . . . . . . . 351 John Zuluaga Confronting the Past Through Criminal Courts. Critical Reflections on the Colombian Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381

III. Corporate Law and Financial Regulation Winfried Bausback Future Whistleblower Protection in Germany Caught Between the Conflicting Demands of Bureaucratic Burden and Law Enforcement . . . . . . . . . . . . . . . . . . 397 Orit Fischman Afori The Evolving Concept of Minority Shareholders as Controllers – The Israeli Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415 Asaf Eckstein and Gideon Parchomovsky Rethinking Oversight Duties and Responsibilities in Conglomerates . . . . . . . . . 425 Assaf Hamdani and Sharon Hannes Institutional Investor Activism: Lessons from Israel . . . . . . . . . . . . . . . . . . . . . . 445 Tamir Shanan Taxation of “Stateless” Individual Taxpayers in the 21st Century . . . . . . . . . . . . 469 Iris Soroker Regulation of Franchise Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489

Contents

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IV. Legal Challenges in Digital Transformation and Technology Berthold Haustein Through the Thicket of Law to the Stars of Technology Transfer . . . . . . . . . . . . 517 Eric Hilgendorf “The High Dignity of the Office of Judge” in the Age of Artificial Intelligence 533 Carsten Kusche Platform Crime as a Challenge for Criminal Law Doctrine and (Criminal) Law Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 555 David Roth-Isigkeit Towards Methodological Experimentalism in Digital Transformation Research

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Paul Vogel The Sanctions Regime in EU Data Protection Law . . . . . . . . . . . . . . . . . . . . . . . 585 Bernd Weiß Digitalisation and the Right to the Lawful Judge – Human Being or “Automated Judging Machine”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607 V. Ethics, Health, and Law Frauke Rostalski Life and Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 635 María Lucila Tuñón Corti Age, Fair Innings, and Triage in the Time of Coronavirus . . . . . . . . . . . . . . . . . 665 List of Publications by Yoram Danziger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 685 List of Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 689

I. Constitutional Law and Legal Theory

Reparations for Holocaust Survivors – Searching for Justice in Israel and Germany By Daphne Barak-Erez*

I. Introduction Should the law recognize the right to sue monetary reparations for wrongs that, in many ways, cannot be corrected? This is one of the perennial questions of law. Queries regarding how to correct injustice and whether such reparations should be deemed possible are not new, and were addressed as early as the final chapters of the Book of Job.1 After Job suffered the loss of his family, and his fortune, the biblical narrator tells us that God blessed him with great fortunes and a new family. This is a challenging and question-begging ending, much like the Book of Job in its entirety. Is it at all possible to correct an injustice as great as the one suffered by Job? Is it possible to correct such a wrong? In many ways, this is a recurring dilemma in tort law. In some contexts this dilemma is, however, intensified. A major example of this dilemma is the law applicable to the reparations given to Holocaust survivors for their unparalleled loss, which in fact can never be fully corrected. This article seeks to analyze the reparations awarded to Holocaust survivors as a distinct case-study both in corrective justice, as well as in transitional justice. It does so by examining the legal dilemma through the lenses of the complex relationship between the newly established State of Israel, founded shortly the Holocaust, and the Federal Republic of Germany, established around the same time, which represented a “New Germany”. It also does so by telling a story of comparative law, taking into consideration the influence that German law had on Israeli law in this area, as well the limitations entangled with such an influence.

* Prof. Dr. Daphne Barak-Erez is a Justice at the Supreme Court of Israel. The article is dedicated with friendship and admiration to my friend Prof. Yoram Danziger, whose family emigrated from Germany to then Palestine before World War II, and devoted a chapter of his fruitful career to building the bridge between the State of Israel and Modern Germany. An earlier version of this study was published in Hebrew – Barak-Erez, in: Levin/Rubinstein/ Stauber (eds.), Memory and Justice – Israel’s Supreme Court Judges Write about the Holocaust. 1 Barak-Erez, in: Levin/Rubinstein/Stauber (eds.), Memory and Justice – Israel’s Supreme Court Judges Write about the Holocaust, pp. 269 – 288.

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More specifically, the article focuses on the regulation of the reparations awarded to Holocaust survivors by Israeli law, and in that context addresses the role played by the Israeli courts in legal proceedings initiated by individuals who claimed that they should be recognized as Holocaust survivors and receive reparations accordingly. While doing so, the Israeli courts had to both uncover the history which served as the background for the litigation and pursue just decisions.2 Their efforts reveal and exemplify the shortcomings of law in confronting personal and national tragedies, as well as expose its significant contributions in this area. Following this introduction, the article opens by outlining the history of the socalled Reparations Agreement (known also as the Luxembourg Agreement)3 of 1952, between the State of Israel and the Claims Conference on the one side, representing the Jewish people, and the Federal Republic of Germany, on the other. The article then illustrates the various oppositions to this agreement and the arguments that were made to confront them. Later on, the article clarifies the scope of the Israeli legislation regarding this matter, which in fact adopted the rules of entitlement set by German legislation for paying individuals who brought forth their claims within Germany. Accordingly, the Israeli law was lacking in how it reflected the full history of the Holocaust. In addition, the article describes later developments in the international arena, which broadened, at least partially, the scope of the reparations awarded to Holocaust survivors, as well as to other victims of Nazi Germany. The article then highlights the complex social challenges posed by the reality of the reparations paid to Holocaust survivors, including their contribution to socio-economic disparities in Israel, and the results of their incomplete coverage (leading to some Holocaust survivors living in poverty to this day, and enabling only limited application to Middle Eastern Jewish communities). The article then concludes by focusing on current issues faced by the Israeli courts, which have to decide on legal actions brought forth by Holocaust survivors, in circumstances in which these actions are not only aimed at obtaining monetary reparations, but rather also at securing recognition and acknowledgement.4 2

For the narration of history by courts, see also Barak-Erez, Collective Memory and Judicial Legitimacy: The Historical Narrative of the Israeli Supreme Court, Canadian Journal of Law and Society 16 (2001), pp. 93 – 112; Barak-Erez, The Law of Historical Films: In the Aftermath of Jenin, Southern California Interdisciplinary Law Journal 16 (2007), pp. 495 – 522; Barak-Erez, History and Memory in Constitutional Adjudication, Federal Law Review 45 (2017), pp. 1 – 16. 3 It is worthwhile to note that the term “Luxemburg Agreement” carries with it a more neutral meaning. The Hebrew term “shilumim” is interesting in the sense that it expresses both a meaning of “payment” and a meaning of correction and retribution. The German term, “Wiedergutmachungsabkommen”, also does not seem to be neutral, in the sense that it refers to the correction of a wrong. 4 For the meaning of recognition of this nature, see Taylor, in: Gutmann (ed.), Multiculturalism Examining the politics of recognition, pp. 25 – 73; Dixon, in: De Vos/Kendall/Stahn (eds.), Contested Justice: The Politics and Practice of International Criminal Court Interventions, pp. 326 – 351.

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1. The Reparations Agreement and Israeli Legislation The story of the legal regulation of reparations awarded to Holocaust survivors started as early as Israel’s formative years. In a nutshell, its portrayal should open by describing the negotiations between the Israeli government, led by Prime Minister David Ben-Gurion and the Minister of Foreign Affairs Moshe Sharet, and the Government of West Germany, led by the Federal Chancellor Konrad Adenauer, who also served as Foreign Minister at the time.5 Those negotiations were conducted with the intention of signing a comprehensive agreement that would supposedly promote reconciliation between the two nations. The agreement was designed to include reparations,6 both to the State of Israel and to the individual survivors who lived within its borders.7 The agreement that was eventually signed was comprised of two “layers” which were designed to complement one another. The State of Israel was awarded a large sum of money for the purpose of supporting its initial development and constructing infrastructure. An inseparable part of that was the understanding that Holocaust survivors who immigrated to Israel before the agreement was finalized would not be entitled to any additional reparations from Germany. The rationale behind this limitation was that the support given to the State of Israel would, in and of itself, secure and ensure aid and monetary support for those individual survivors residing within its borders. Meaning in fact, that Israel conceded, on behalf of its citizens at the time, their individual rights to sue for reparations in Germany, an act that was not applicable to individuals who would immigrate to the country after the conclusion of the agreement. At the same time, Germany (at the time, West Germany) took it upon itself to guarantee the individual entitlement of (other) survivors to sue for reparations. Thus, the agreement resulted in a distinction between “old” immigrants,

5 In fact, the source of the idea of a collective demand for receiving reparations from Germany can be traced back to the internal deliberations within the Zionist organizations back in the 1940s, before the end of World War II, in the context of meetings dedicated to the organization of mass immigration to the land of Israel. See HaCohen, The One Million Plan: David Ben-Gurion’s Plan for Mass Immigration in the Years 1942 – 1945, pp. 180 – 204 (Hebrew). 6 For more background on the early negotiations regarding this matter, see Diner, in: Engelhardt/Zepp (eds.), Sprache, Erkenntnis und Bedeutung – Deutsch in der jüdischen Wissenskultur, pp. 280, 281. 7 It has been pointed out that the Reparations Agreement signed between Israel and Germany is unique in its kind – giving remedy by a state that was not in existence when the wrongs were committed, to a new state that was not in existence at the time as well. See Rosenne, The Perplexities of Modern International Law, p. 435 (Hebrew). The negotiations also involved the Claims Conference, an American Jewish organization bringing together several Jewish bodies active in the area of reparations, restitution and assistance to holocaust survivors. See Sagi, German Reparations: A History of the Negotiations (Dafna Alon trans.); Blumenthal, Right to Reparations: The Claims Conference and Holocaust Survivors, 1951 – 1964.

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who already resided in Israel, and those who would immigrate to Israel later on, granting only the latter a right to sue for reparations under German law. The first German federal law on reparations was enacted in 1953.8 Later on, in 1956 an updated new law substituted the original one.9 In fact, the legislation was rooted in principles adopted in a previous law enacted in 1949, which applied only to the parts of Germany under the influence of US authorities. Generally speaking, the reparations awarded by the German legislation did not apply to all those who had been harmed by the Nazi regime, but were rather more focused, applying to certain groups, and subject to conditions and exemptions. Accordingly, the German legislation was directed towards entitling individuals with some kind of German affiliation, either as residents of Germany or as individuals who were harmed in territory subject to Nazi rule.10 Citizens of countries which had signed specific agreements with Germany (as was the case with Israel), and in addition – reflecting the politics of the time – citizens of countries of the Communist bloc, were excluded from the group of potential plaintiffs. Accordingly, Jews who had the required connection to Germany and did not fall into the contours of the abovementioned exemptions, could sue and be awarded reparations under that German legislation. Due to the large numbers of Jewish victims of the Nazi regime, the de-facto outcome was that many of those awarded reparations within the framework of that legislation were Jewish holocaust survivors (although the legislation was in no way limited to them).11 Alongside those developments, in order to give a concrete remedy to Israeli citizens whose entitlement to sue in Germany was waived under the Reparations Agreement, in 1957 Israel enacted a special law which awarded a right to claim state provided monetary support to anyone who could have sued for reparations under the German legislation, but was barred from doing so by the Reparations Agreement.12 This Israeli law served as an almost technical “mirror” reflection of the German legislation which granted entitlement to reparations, without demonstrating any independent Is8

The first federal German law – Bundesergänzungsgesetz zur Entschädigung für Opfer der nationalsozialistischen Verfolgung, known as the BErG. 9 The second Federal German law – Bundesgesetz zur Entschädigung für Opfer der nationalsozialistischen Verfolgung, known also as BEG. See also Hockerts, in: Diner/Wunberg (eds.), Restitution and Memory: Material Restoration in Europe, pp. 335 – 341. 10 See Brunner/Nachum, On the German Legislation and the Israeli Examination Practice Regarding the Germanness of Holocaust Survivors, Law and Business Journal 10 (2009), pp. 279 – 303 (Hebrew); Brunner/Nachum, in: Frei/Brunner/Goschler (eds.), Die Praxis der Wiedergutmachung. Geschichte, Erfahrung und Wirkung in Deutschland und Israel, pp. 387 – 424. 11 For a comparison of the relatively effective use of this legislation by Jewish holocaust survivors and the Roma people who were also covered by it, see Woolford/Wolejsczo, Collecting on Moral Debts: Reparations for the Holocaust and Porajmos, Law and Society Review 40 (2006), pp. 871 – 901. 12 Nazi Persecution Disability Law, 1957.

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raeli policy on the matter. In other words, it did not take a stand on the question of which principles ought to guide the awarding of reparations to Holocaust survivors.13 In fact, when the bill was originally presented to the Knesset, it was even narrower in comparison to the German law, since it was designed to accord the right to sue only to survivors of concentration camps.14 Parliamentary deliberations on the bill, including those in a sub-committee of the Finance Committee, led to the drafting of the model which was eventually enacted.15 This model focused on mirroring the German legislation in place, and therefore was broader than the initial draft, but still limited in scope. Two highly important distinctions emerge from the background described above. The first concerns the difference between the reparations awarded by Germany and the reparations awarded by the State of Israel. The second concerns the difference between the reparations awarded by the German government directly to victims, based on recognition of their individual entitlements, and the general reparations transferred to the State of Israel. By accepting the latter, the State of Israel established itself as the representative of the Jewish people and as the homeland for Jewish refugees after the Holocaust. From a more general perspective, it is worth adding that the individual and public aspects of the reparations question are inseparable. Indeed, every survivor brings forward a claim based on his or her individual loss, but at the same time, the individual claim is limited by the collective regulation of the matter, as reflected in the Reparations Agreement. 2. The Moral and Political Controversy over the Reparations Agreement Analyzing the legislative arrangements on the matter is deemed to be incomplete without addressing the historical background to their enactment, and particularly the strong controversies which surrounded the signing of the Reparations Agreement. Decades have passed since then, and still it would be fair to say that those controversies were among the most bitter and difficult ones in the Israeli public arena. The right wing of the political map, led by the “Herut” party, which at the time was in the par13 Accordingly, the basic conditions set by the Nazi Persecution Disability Law were: having a disability (of at least 25 %); meeting the conditions of the German Law unless one’s entitlement was taken by the Reparations Agreement, and in addition, immigration to Israel prior to October 1st 1953, and living in it after April 1st 1957. See sections 1(a) and 3 to the Nazi Persecution Disability Law. See also Halperin, Disability Allowances by Dint of Nazi Persecution and Israeli Society’s Perception of the Holocaust: An Analysis from the Standpoint of Disability Studies’ Critique, Ma’asei Mishpat 5 (2013), pp. 81 – 99 (Hebrew). 14 See Nazi Concentration Camps Disability Bill, 1956. 15 See Knesset Protocol on Nazi Concentration Camps Disability Bill, 1956 (First Call), 21 Knesset Protocols, 600 – 612 (31 December 1956); Knesset Protocol on Nazi Concentration Camps Disability Bill, 1956 (Second and Third Calls); 22 Knesset Protocols 1772 – 1774 (10. 4. 1957).

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liamentary opposition, presented principled and harsh criticism against the willingness to receive money from those responsible for the murder of Jews (or their descendants). This readiness was presented as an undignified surrender and even as an inclination to sell blood for money. The terminology repeated by Menachem Begin, the leader of Herut (who became Prime Minister years later, in 1977) included phrases such as “eternal shame”, “crime”, and “dishonor”. In contrast, the government, led by Ben-Gurion, wished to adopt a “pragmatist” approach, recognizing the importance of the financial support to the future of Israel. In addition it presented a principled view supporting the moral aspect of the reparations, emphasizing that the money should be used by the descendants of those murdered, rather than by the murderers (“We shall not let the murderers of our people be their heirs”).16 Very quickly the debate went from words to actions, and the harsh demonstrations against the reparations agreement turned violent. One of the most prominent, yet negative, peaks in those events took place on January 7, 1952, when the debate over the negotiations with Germany commenced in the Knesset. Begin, back then a vocal opposition figure, led a large protest which started at the center of Jerusalem and proceeded towards the front of the Knesset (in its former location), under the slogan “we shall not be silent before disgrace”. Begin himself spoke on the matter both in the Knesset and to the crowd assembled, calling Ben-Gurion “a criminal” and “a hooligan”. Interestingly, this opposition was also supported by the other side of the political map, by the Israeli Communist party (MAKI). Eventually, the demonstration became violent. Participants threw stones toward the Knesset building, and the day ended with dozens of wounded, including Knesset members.17 Needless to say, the event did not end the controversies, which had left their marks not only in the political arena but also on the personal feelings and moral positions of many Israelis.18 However, the protest did not stop the diplomatic initiative, and shortly thereafter, receiving reparations from Germany became part of everyday (legal and public) re-

16 See Weitz, Where’s Menachem Begin? His Disappearance in 1951 and Its Significance, Israel Studies Forum 20 (2005), pp. 115 – 137; Gruweis-Kovalsky, Menachem Begin’s World Travels in the 1950s – A Road to Political Legitimacy, Israel Studies Review 31 (2016), pp. 22 – 40; Tovy, Talking after Auschwitz? The public-political struggle in Israel over the negotiation of a reparations agreement with West Germany 1951 – 1952, Holocaust Studies 23 (2017), pp. 483 – 504; Tovy, Don’t Buy Volkswagen! The Herut Movement and the question of Israel-Germany relations 1951 – 1965, Holocaust Studies 26 (2020), pp. 283 – 305. 17 Begin’s speech in the demonstration is remembered as one of the important public addresses in Israeli history. See Begin, in: Shapira (ed.), We Hereby Declare: 60 Chosen Speeches in the History of Israel, pp. 66 – 70 (Hebrew). 18 The controversy was reflected in works of literature published during that period, including the poem published by the well-known Israeli poet (and Holocaust survivor) Dan Pagis, “Reparations Agreement Draft”. The poem implies harsh criticism: “everything will be put in place, provision after provision, the human shout to the throat, the gold teeth to the jaw”.

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ality in Israel.19 In retrospect, despite the difficult emotions surrounding the events, it is clear that the reparations received from Germany proved to be highly important for the development and economic growth of Israel during its critical early years. Nevertheless, the implementation of the law on reparations regarding the legal actions brought forth by individual Holocaust survivors raised additional difficulties in the following decades, as will now be discussed. 3. The Legal Questions: Recognized and Unrecognized History for the Purposes of the Law With the passage of time, the controversy over the question of opening the door to the possibility of receiving reparations was replaced by other controversies – specifically, regarding the question of who was entitled to receive them. The entitlement to receive reparations became important to Holocaust survivors both on the pragmatic level, focused on financial support, and – no less – on the symbolic level, focused on the formal legal recognition of certain individuals as “Holocaust survivors”. These two-fold expectations from the law – that it would supply both pragmatic and symbolic remedies – was very difficult to fulfill. First, statutory reparations can never fully reflect the tragedy of the survivors, which cannot really be quantified in monetary values. Moreover, and not less important, the conditions set by the Israeli law, adopted on the basis of the German legislation, did not fully reflect the complicated history of the Holocaust. Thus, while an individual could have been considered a “Holocaust survivor” in several social contexts, being someone who suffered during the war and whose personal testimony is one worth of being included in the collective memory of the Jewish people, that person might still be left without monetary entitlement, if the criteria set forth by the legislation were not met in the specific case. In short, this is the recurring paradox, demonstrated from time to time, by the application of the law of reparations for Holocaust survivors.20 19

It is worth adding that in the context of the legal environment of the 1950s the decision to sign the Reparations Agreement was never challenged in court. In contrast, in the 1960s, the decision to initiate full diplomatic relations with West Germany was a the subject of a petition submitted to the Supreme Court residing as the High Court of Justice. The petition was dismissed, taking into consideration the very narrow scope of review in such matters at the time. See HCJ 186/65 Reiner v. Prime Minister, 19(2) PD 485 (1965). 20 The German legislation awarding reparations to Holocaust survivors is described as based on an “administrative” model. See Roht-Arriaza, Reparations Decisions and Dilemmas, Hastings Int’l & Comp. L. Rev. 27 (2004), p. 170. Scholars who researched this area of law indicated that the difficulty of many victims to meet the strict formal criteria for entitlement as well as the hardship concerning proof, are regarded as obvious shortcoming of this model. See Roht-Arriaza, Reparations Decisions and Dilemmas, Hastings Int’l Comp. L. Rev. 27 (2004), pp. 177 – 181. It is worth noting that the model of international criminal law set by the Rome Statute includes the option of awarding compensation to victims, but in a form that is alinged with the criminal process (sections 75 and 79). See Dwertmann, The Reparation System of the International Criminal Court: Its Implementation, Possibilities and Limitations.

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Later, this critique was coupled with the more general argument made by Holocaust survivors, according to which the reparations agreement had confiscated their claim to individual and direct entitlement, which they deserved to enjoy and dispose of due to their private and personal loss.21 In other words, when the intensity of the moral and ethical dilemma around the willingness to receive reparations from Germany calmed relatively speaking, the public arena was opened to the pragmatic and operative questions related to the law’s application. Individuals and groups different from one another in their origins and stories, claimed that their suffering should be recognized, and accordingly, that they should receive reparations. The courts have become, in fact, the place to address these challenges. As explained above, the criteria and conditions for reparations were primarily set by the German legislation on this matter. Accordingly, German courts were the first to interpret them, in the context of claims submitted in Germany. The first important decisions on reparations law were given in Germany – starting in the 1950s and continuing up to the 1970s – when the wounds were still fresh, on the one hand, and the applicable limitations provisions (which came into force regarding claims submitted after a significant passage of time) were still irrelevant, on the other hand. Later on, Israeli courts also had their share of litigation. Indeed, the claims decided by the Israeli courts were submitted under a different law, the Israeli one, but as already noted, the Israeli law was drafted to “mirror” the criteria and conditions for entitlement set by the German law. Therefore, German case law was an inseparable part of the interpretation offered by the Israeli courts to the Israeli legislation on reparations.22 In fact, Israeli law in this area evolved following the development of German law. To a large extent, the norms set in Germany were later applied in Israel. An especially telling demonstration of this “import” of German law into Israel is the fact that the criteria and conditions for entitlement were never translated to Hebrew, which is the official language of the state and the legal system. When the courts had to decide on claims for reparations according to Israeli law, they found themselves engaging in an in-depth debate over the proper interpretation of the text of the German law.23 There21 This form of criticism was vocally expressed in the litigation around the entitlement of the group of survivors known as the “Tehran children”. See CA 7686/12 State of Israel v. Robinson (13. 1. 2014). See also Katz, At the Expense of the Victims – New Studies in the Reparations Agreement, Personal Reparations and Return of Property to Victims Residing in Israel (Hebrew). This matter goes beyond the scope of this article. 22 Erdinast-Ron, in: Frei/Brunner/Goschler (eds.), Die Praxis der Wiedergutmachung. Geschichte, Erfahrung und Wirkung in Deutschland und Israel, pp. 660 – 689. 23 The proceedings in RCA 2334/18 Efroni v. Authority for Rights of Holocaust Survivors in the Ministry of Finance (10. 3. 2019), to be discussed below, shed another light on this fact. Even in the relatively advanced stage of the hearing the appeal in the Supreme Court – the court was not presented with a formal Hebrew translation of the text which was at the focus of the arguments. Eventually, a translation of the relevant parts of the German law was prepared

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fore, Israeli legislation in this area was not only far from securing full reparations to individuals making claims, but also functioned as a barrier for critical thinking regarding the proper scope of reparations from a “local” perspective. In general, the German legislation recognized the rights of individuals with affiliations to Germany whose bodies or health were harmed within the territory of the German Reich.24 In addition, and as an exception to the “German” condition, the legislation awarded reparations in cases of “deprivation of liberty” even for individuals who lacked German affiliation. This exception was designed to apply, vis-à-vis, to one of the most characteristic wrongs of the war – imprisonment in ghettos and concentration camps, even of people who did not have any connection to Germany in the first place.25 The one-to-one application of German law, and its forms of interpretation in Germany, has been subjected, during the years, to two limited exceptions. These exceptions included cases which instigated a direct conflict with the fundamental principles of Israeli law, or cases dealing with unresolved controversies found in the German decisions themselves.26 The path to receiving reparations was therefore not an easy one. Even those for whom the law was especially “tailored” had to deal with complex bureaucracy focused on validating their entitlement, which included providing evidence concerning events that had happened many years previously.27 For example, survivors had to submit evidence concerning their medical condition and its causes, since they had to and submitted following a formal decision given by the court. Efroni Case, ibid., paras. 9, and 72 – 75. 24 See Schwerin, German Compensation for Victims of Nazi Persecution, Northwestern Law Review 67 (1972 – 1973), pp. 479 – 527. See e. g. CA 587/75 The Authority for Nazi Persecution Disability Law v. Charka, 30(3) PD 137 (1976). 25 It should be noted that German law did apply also to actions made outside the territory of the Reich in “satellite” states. German law specified Romania and Bulgaria as such “satellites” and the case law also dealt with the interpretation of this term. See RCA 954/99 The Authority for Nazi Persecution Disability Law, 1957 v. Shteinfeld, 55(1) PD 617, 620 (1999) (hereinafter: Shteinfeld Case). See also CA (TA) 1919/03 Uziel v. The Authority, para. 10 (31 January 2005). 26 For these exceptions, see CA 51/73 Klemer v. The Authority for the Nazi Persecutions Disability Law, 29(1) PD 253, 257 (1974); CA 660/76 Kalinovski v. The Authority, 31(1) PD 500 (1976); RA 217/83 The Authority for the Nazi Persecutions Disability Law, 1957 v. Shoham, 40(1) PD 789, 793 – 794 (1986); Shteinfeld Case, supra note 25, at 619; FHC 11196/ 03 Granot v. The Authority for the Nazi Persecutions Disability Law, 1957, 60(3) PD 88, 94 (2005). See also RCA 5512/09 Hershko v. The Authority, para. 13 (24. 11.2009); Efroni Case, supra note 23, at para. 8. 27 In order to answer the need, the practice of reparations actions has become an area of legal specialty and there were lawyers who have developed expertise in this area. See Katz, ‘Shoah Revenues’: Individual Reparations Claims from Germany as a Source of Income in the 1950s and 1960s, Israel: Studies in Zionism and the State of Israel – History, Society, Culture 15 (2009), pp. 137 – 165. At times, this practice even led to instances of criminal behavior. See e. g. Crim. A. 265/64 Shiovitz v. Attorney General, 19(3) PD 421 (1965).

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prove that their health problems derived from Holocaust related events, and had not shown signs of existing before the war or originating from other conditions.28 In addition they had to meet several formal requirements, including those concerning their place of residence. Individuals who migrated out of Israel, even temporarily, lost their statutory entitlement, and could have found themselves stripped of their prospects to sue both in Israel and in Germany. As residents of Israel at the time of the signing of the Reparations Agreement they were not entitled to sue in Germany, and without meeting the Israeli residence requirement they were not entitled to sue according to Israeli law.29 Needless to say, that beyond bureaucracy, the process was entangled with severe emotional difficulties, due to the need to address the painful past.30 An even more significant difficulty concerned those individuals who were left outside the scope of the legislation. The wrongs caused during World War II were only partially covered by the reparation “slots” created by the legislation, and many victims found themselves without remedy. This problem can be exemplified by the “deprivation of liberty” category, which was highly important due to its relevance to individuals who were subjected to this wrong outside the territory of the German Reich. Therefore, the courts had to address the challenge of defining the fine line which distinguishes between deprivation of liberty and other wrongs that fell short of it. For example, initially, the courts adopted an interpretation according to which even expulsion coupled with violence did not constitute, by itself, “deprivation of liberty”, if it did not also involve limitations on freedom of movement.31 They also stated that forced labor, by itself, did not constitute “deprivation of liberty”, so long as it did not involve “special labor conditions” similar to imprisonment.32 In addition, the courts refused to award reparations for physical damages originating from the Nazi occupation in other countries.33 28 See e. g. CA 467/74 The Authority for Nazi Persecution Disability Law v. Tsizer, 29(2) PD 578 (1975) (In this case it was decided that one cannot deduce from the medical documents that the psychological problems of the claimant derived from Nazi persecutions); CA 288/76 Wiess v. Authority for the Nazi Persecutions Disability Law, 1957, 31(1) PD 23 (1976) (in this case as well the court held that the claimant had shown signs of sickness before the initiation of Nazi persecutions). In retrospect, it is possible to trace examples for decisions which are read now as strict and insensitive enough. See 29/79 Authority for Nazi Persecutions Disability Law v. Weintraub, 33(2) PD 443 (1979) (In this case, the Supreme Court invalidated the decision of the authority in charge of implementing the law, when the latter held that a holocaust survivor who was exposed to the rape of her sister by German soldiers should not be recognized as entitled for payments since she was not raped herself). 29 See e.g, CA 498/78 Shneider v. Authority for the Nazi Persecutions Disability Law, 1957, 33(2) PD 411 (1979). 30 Aharon Apelfeld, a well-known Israeli author, who was a holocaust survivor himself, expressed these difficulties in his story “Compensation”. See Appelfeld, Smoke p. 17 (Hebrew). 31 Kalinovski Case, supra note 26. 32 CA 101/79 Authority of Nazi Persecutions Disability Law, 1957 v. Gorsban, 33(2) PD 390 (1979). 33 Klemer Case, supra note 26.

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In later years, more liberal case law offered partial solutions to some of these problems. An especially important decision was given in the Granot Case,34 which dealt with the fate of Bulgarian Jewry. In that matter, the Israeli Supreme Court held that an organized expulsion of Jews from their homes during World War II, even if it was not executed by armed forces, could be defined as “deprivation of liberty” and therefore can serve basis for reparations. However, that decision, as important as it may have been, was only authored at a relatively late stage, almost 50 years after the Israeli law on reparations had been enacted. In addition, even that decision offered only a partial solution to the problem described above given the fact that the German legislation significantly limited the scope of entitlement and was not designed to apply to all the wrongs and persecutions which took place during World War II. More generally, the impression is that the new, more liberal case law, which brought about somewhat more befitting outcomes, was influenced by several changes which had occurred around the same time, and contributed to one another. First, due to the provisions which had put limits on the possibility of bringing new claims in Germany (as a result of the lapse of time), there was no longer applicable and timely German case law on the matter. The Israeli courts therefore had more room for innovation without reference to German decisions. Second, Germany itself had gradually offered new schemes of payments to victims of the Nazi regime.35 Third, during the same period, in 1992, the Israeli legislature enacted Basic Law: Human Dignity and Liberty, which gave formal constitutional status to fundamental rights. This constitutional development may have offered additional support for granting compensation to those persons whose most fundamental rights had been severely abused. 4. Additional Reparations to Holocaust Survivors and Other Victims of Nazi Germany With the passage of time, awareness to the more general aspects of correcting the wrongs of World War II – not only in the context of Holocaust survivors – intensified. In fact, In this broader context, one can say that in the decades that have passed since the 1950s, the questions raised by reparations for past wrongs have also become an integral part of theorizing and reflecting upon reconciliation and transitional justice36 processes in more general terms.37 34 Granot Case, supra note 26. For the early case law on the fate of Bulgarian Jews, see e. g. CA 427/75 Manoach v. Authority for Nazi Persecution Disability Law, 30 (2) PD 663 (1976). 35 See Part 4 below. 36 For the early scholarship that coined this term, see Teitel, Transitional Justice. See also Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence; Roht-Arraiza/Mariezcurrena, Transitional Justice in the Twenty-First Century – Beyond Truth versus Justice; Leebaw, Judging State-Sponsored Violence, Imagining Political Change. 37 For a comparative analysis of Germany, France and Switzerland, see e. g. Ludi, Reparations for Nazi Victims in Postwar Europe.

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With regard to reparations from Germany, the possibilities for receiving reparations broadened over time, due to both the expansion of payments made to the Claims Conference resulting from decisions of the German government, and payments made by private corporations which had taken advantage of the work of war prisoners and other persons whose liberty had been deprived.38 Another path of litigation which evolved over the years concerned litigation over stolen property.39 Those developments did not have any formal or direct influence on the cases decided by the Israeli courts. However, one can assume, that they contributed to the expectations of Holocaust survivors to eventually get additional payments that would better reflect their loss. On the practical level, amendments introduced over the years to both the German and Israeli laws, as well as new administrative decisions, gave additional entitlements to Holocaust survivors. Some of them awarded supplementary payments to individuals who had been recognized before, whereas others awarded entitlements to individuals who had not been recognized before at all.40 In the vast majority of those cases, the latter were payments of modest sums, regarded as better than nothing, and were usually defined as “humanitarian” payments, in contrast to full-fledged reparations.41 Another void that has never been filled concerns the “missing” part of the reparations agreement itself – the portion of the monetary reparations attributed to East Germany at the time (and has never formally been paid until this day). 42

38

See Bilsky, The Holocaust, Corporations, and the Law: Unfinished Business. One of the well-known examples which became known also in popular culture concerns the “Woman in Gold” painting by Gustav Klimt. See O’Connor, The Lady in Gold: The Extraordinary Tale of Gustav Klimt’s Masterpiece, Portrait of Adele Bloch-Bauer. Restitution actions have, of course, their own characteristics – they retain the individual aspect of the claim and are focused on correcting the wrong in a way that prefers concrete restitution over monetary payments. In some cases, they are also important from the perspective of correcting the cultural aspect of the Genocide, in the sense that they enable to preserve artifacts and symbols of the society which was victimized and designed to be destructed. See more Bilsky/ Klagsbrun, The Return of Cultural Genocide, European Journal of International Law 29 (2018), pp. 373 – 396; see also: Gallas, A Mortuary of Books: The Rescue of Jewish Culture after the Holocaust. 40 Israeli legislation had put limitations on the scope of the fees that could be collected by lawyers for representing individuals in the context of some of the new decisions on reparations. See HCJ 687/15 Yadid v. The Knesset (9. 7. 2015); HCJ 4231/16 Yadid v. Attorney General (15. 6. 2017). 41 One of the many examples is the “Kindertransport” fund which started to operate in 2019 and was dedicated to a one-time payment of 2,500 Euros for each of the children who left Germany in this manner, during the period after Kristallnacht and until the beginning of World War II. 42 See also Hockerts, in: Diner/Wunberg (eds.), Restitution and Memory: Material Restoration in Europe, pp. 351 – 357. 39

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II. Reparations from Germany and Social Justice in Israel Beyond the formal legal questions, further difficulties concerned the social consequences of the reparations. Since the formative years of the State of Israel, reparations coming from Germany offered additional economic opportunities to Holocaust survivors, in comparison to other Israeli citizens. While the reparations regime had a sound moral and pragmatic basis considering the personal loss, hurt and disentitlement of the survivors, it also had unintended consequences – creating economic gaps between the survivors and other Jews who came to Israel at the time, especially those from middle eastern Jewish communities, who in most cases lost all their property as they immigrated to Israel.43 In fact, researchers of Israeli society have pointed out that the reparations coming from Germany proved to be one of the sources of economic gaps in Israel.44 In addition, two other issues have emerged during the years. First, experience has revealed that although, in principle, the State of Israel regards itself as committed to the well-being of Holocaust survivors, this goal is in fact not always achieved in a satisfactory manner. Unfortunately, there are Holocaust survivors who live in Israel under difficult conditions, sometimes even disgraceful ones. In other words, there is a disparity between the commitment of the state of Israel to Holocaust survivors, in principle, and the reality of the lives of those survivors characterized by poverty and distress, a phenomenon which has intensified as that population grows older.45 Several legislative amendments and government benefits given to Holocaust survivors, which were initiated in later years strove to resolve this problem, but proved to be only partially effective.46 43

See e. g. Swirski/Bernstein, in: Ram (ed.), Israeli Society: Critical Perspectives, pp. 120 – 147 (Hebrew). 44 See Teitelbaum, Individual Compensation for the Holocaust Survivors and Social Stratification in Israel, Theory and Critism 27 (2005), pp. 71 – 101 (this article presents a more sophisticated approach, arguing that the reparations did not serve, by themselves, a significant source of wealth, but rather opened possibilities for higher education to the second generation, in a manner that had an indirect influence on social gaps). Chetrit, The Mizrahi Struggle in Israel: Between Oppression and Liberation, Identification and Alternative, 1948 – 2003, p. 121 et seq. (Hebrew). For the influence of the reparations on the Kibutzim and their personal property policy, see Bord, Take the Stolen Money from the Hand of the Killer: the Kibbutz Movement and the Reparations Agreement, the Personal Compensation and the Restitution from Germany (Hebrew). 45 This problem led to appointing a public committee dedicated to reviewing the treatment of holocaust survivors in Israel, headed by former Supreme Court Justice, Dalia Dorner. See Report of the investigation committee for support to Holocaust survivors (2008) (Dorner Report). See also Teitelbaum, The Biological Solution – the Scandal of Personal Reparations and return of property to Holocaust Survivors (Hebrew). 46 See e. g. Support for Holocaust Survivors in Need Law, 2007. The implementation of the Dorner Report contributed to the well-being of holocaust Israeli survivors who live in Israel, but did not solve the problem in its entirety. In general, current Israeli legislation includes special economic privileges and discounts in areas such as electricity payments and welfare.

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Second, there is the question of including non-European Jewish communities in the national narrative of the Holocaust, and consequently, including them in the reparations regime.47 In some of the cases, which found their way to the courts, when the factual background fitted the “typical case” of Nazi occupation, the affected victims’ entitlements were recognized.48 This was not true, however, for many other cases.49 The case of the victims of the “Farhud” pogrom in Iraq, which was decided by the Israeli Supreme Court in the Efroni Case,50 is an interesting and complex example of the abovementioned challenge. The Farhud was an especially cruel initiative directed towards the Jewish community in Iraq in June 1941, during World War II. It happened to take place, however, outside the territory of the German Reich, and without direct involvement of Nazi Germany (although, as subsequently discussed, with some involvement and inspiration coming from it).

III. The Legal Challenge and the Shortcomings of Law At this stage, I would like to address the complex role played by the Israeli courts as they are called to rule on legal actions initiated by individuals who wish to be recognized as Holocaust survivors and accordingly get financial reparations. This role serves as a point of intersection in the aspiration to achieve individual justice, historical justice, and social justice. Fulfilling all these goals simultaneously is a difficult task, and sometimes even an impossible one, but aspiring to do so is nonetheless crucial. I would like to exemplify this difficulty by analyzing the Efroni Case, already mentioned above, a case in which I authored the decision of the court. As already noted, the proceedings in that case concerned a very traumatic event which took place during World War II, a pogrom directed against the Jews of Baghdad lasting two days in the beginning of June 1941. During that event, at least 179 Jews were killed and many others suffered from other forms of physical and emotional damages. The violent actions themselves were conducted by Iraqi citizens, including police officers and soldiers, and were directed against their Jewish neighbors. At the time, the Iraqi public sphere was subjected to influences coming from Nazi Germany, which was represented there by the predominant German Ambassador Fritz 47 See Yablonka, Away from the Railroad: the Mizrachi Jews and the Holocaust (Hebrew). It is important to stress the dual importance of the issue – it does not involve only the pragmatic aspect of receiving payments, but also the recognition of these communities’ full participation in the national ethos of the Holocaust. 48 The principles in the matter of Libyan Jews were set in AC 255/08 Tayar v. Authority (7. 4. 2010). 49 See e. g. AC (TA) 1914-08-09 Kovent v. Authority (20. 12. 2009) (decision on the Jews of Nalchik in Kavkaz and Tunisia); CA (Haifa) 31217-07-15 Menachem v. Ministry of Finance/ Chambers for Rehabilitation of Disabled (7. 8. 2017) (decision on the Jews of Syria); RCA 8073/19 Avgil v. Authority for Rights of Holocaust Survivors in the Ministry of Finance (26. 8. 2021) (decision on the Jews of Morocco). 50 Efroni Case, supra note 23.

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Grube. However, formally speaking, Iraq was never a part of the German Reich, neither was it a country directly controlled by Nazi Germany (as was the case with Romania and Bulgaria).51 In addition, the pogrom took place during a time of transition between regimes, when it was not clear whether Iraq was still under British control. During the decades that have passed since 1941, the survivors of the Farhud have become more and more convinced that their tragedy should be understood and recognized as part of the history of the Holocaust. This growing awareness eventually led to initiating formal legal proceedings under the law of 1957, decades after the relevant events had occurred. After several years of litigation, the committees authorized to decide on such matters dismissed the actions,52 when it became evident that the victims of the Farhud did not meet the formal conditions for entitlement under German legislation: the events did not take place on German soil, nor were they initiated by a state under the control of Nazi Germany. Indeed, the authorized committees stated that one cannot dismiss the contribution and influence of Nazi propaganda on the events. They added, however, that the applicable legislation does not award entitlement on such basis, just as it does not award entitlement for others who might have been damaged by Fascist and Nazi actors around the world during the same period. Later on, the appeals brought against these decisions were dismissed by the District Courts, and also by the Supreme Court.53 In parallel, and before the litigation was finalized, the Israeli Government accepted a new resolution which gave (limited) entitlement to the victims of the Farhud. However, the scope of the payment set by that resolution did not reach the level of coverage awarded by the 1957 legislation. Therefore, it did not satisfy the victims, and they decided to proceed with litigation. As indicated, formally speaking, they did not prevail. The decision of the Supreme Court recognized that Nazi Germany was involved in anti-Semitic propaganda that precipitated the persecution of the Jewish community in Iraq, but clarified that the criteria set by existing law was not broad enough for it to cover the survivors of the Farhud. All the while, the decision expressed sympathy to the possibility of further legislation on the matter, and even criticized the age-old choice to merely “mirror” German legislation.54 The story of the Farhud is a good (and sad) example of the shortcomings of the law. It presents the full complexity of the collective and individual experiences during the Holocaust.55 Truth be told, the litigation in this case aspired to serve more than one 51

See supra note 25. The appeals committee’s power, as well as the right to appeal its decision, are ruled by section 17 of the Nazi Persecution Disability Law, 1957. 53 Efroni Case, supra note 23. 54 Efroni Case, supra note 23, at para. 78. 55 Other examples are derived from the litigation around honoring individuals who saved Jews during the holocaust (“The Righteous Among the Nations”), see HCJ 10673/03 Margalit 52

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purpose. On the individual level, the plaintiffs strived to receive reparations for their suffering, at least partially. On the public level, the litigation stood up for broadening the national narrative concerning the Holocaust, by emphasizing its historical relevance to Jewish communities from the Middle East. Finally, on the social level, this legal struggle aspired to better the economic conditions of many individuals who were at the time elderly and in need of the monetary support they had hoped to receive. The litigation could not have achieved all those goals at the same time, considering the way the conditions for statutory entitlements are drafted. However, it resulted in the following advances: Personal justice was partially achieved due to the new resolution accepted by the Israeli government. This was not part of the final judicial decision, but it was promoted under the cloud of the litigation regarding the matter.56 In addition, as indicated, the decision of the Supreme Court emphasized that the government was not barred from further broadening the criteria for entitlement (and that in fact this would be a desired result), stressing that this was a clear matter of policy concerning which the government has broad discretion.57 The promotion of historic and social justice in that case was even more complex. An unsophisticated analysis of the decision might have led to the conclusion that the dismissal of the legal actions implied a rejection of the events from being included as part of the collective memory of the Holocaust. The decision of the Supreme Court, however, made a point of stressing that it should not be read this way. Indeed, the event of the Farhud does not meet the formal criteria set by the law for awarding reparations. At the same time, the decision emphasized that despite this “the memory of the Farhud would not be erased from public awareness and that state authorities are presumed to know how to preserve it”.58 The conclusion is that even when the court does not award the pragmatic remedy desired by the parties, the litigation itself may have public and emotional value, by giving a “voice” to an untold story. In that sense, one can say that the Farhud survivors received historical recognition, although this did not have the viable financial results they fought for. The relationship between the Supreme Court decision in the Farhud example and the social tensions framing its background is an intricate one. As indicated, the decision did not award the litigants a pragmatic remedy, but it did clearly emphasize that in the current era, when the number of living Holocaust survivors is constantly diminishing, and when some part of them live in poverty, the time has come for the State of v. Yad Vashem, The Holocaust and Bravery Remembrance Authority, 59(2) PD 1 (2004); HCJ 5288/18 Shai v. The Committee for Awarding the Righteous Among the Nations (16. 4. 2019). 56 Administrative Decision on the Ex-gratia entitlement for an annual grant according to the Nazi Persecution Disability Law, 1957 (11. 4. 2016). The intention to do was announced even before on the Ministry of Finance’s website (6. 12. 2015). 57 The decision dismissing the request for a “further hearing” on the matter by an enlarged panel of the court – FH 2147/19 Efroni v. Holocaust Survivors Rights Authority (8. 8. 2019) – also reiterated this emphasis. 58 Efroni Case, supra note 23, at para. 85.

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Israel to provide for their needs. This worthy cause may be materialized by deserting the traditional rules which apply to the reparations awarded to Holocaust survivors and re-examining them in the broader context of the social responsibility to secure the ability of all senior citizens to live in dignity.59 Whereas the court is limited to the interpretation of current law, the path is open for both the legislature and the executive to add rights and privileges on top of those already given.

IV. Conclusion Before bringing this examination of reparations law to a close, it is fitting to address once again the insight coming from the Book of Job. Monetary payments can never fully and truly correct certain wrongs. However, this understanding does not diminish the importance of awarding reparations, in order to secure, even if partially, life in dignity and well-being for those Holocaust survivors who still live among us. In addition, the linkage between recognition and reparations has proved and reproved to be problematic. There are Israeli senior citizens who need significant financial support, although they do not meet the formal conditions of the law for awarding reparations to Holocaust survivors. Others do not need the financial support, but still desperately desire acknowledgement and recognition of their private tragedies and personal stories. One way or another, in order to fully address this complexity, all state authorities should unite and cooperate. Litigation alone will not suffice. Bibliography Appelfeld, Aharon: Smoke, Achsav, 1962 (Hebrew). Barak-Erez, Daphne: Collective Memory and Judicial Legitimacy: The Historical Narrative of the Israeli Supreme Court, Canadian Journal of Law and Society Vol. 16, 2001, pp. 93 – 112. Barak-Erez, Daphne: History and Memory in Constitutional Adjudication, Federal Law Review Vol. 45, 2017, pp. 1 – 16. Barak-Erez, Daphne: The Law of Historical Films: In the Aftermath of Jenin, Southern California Interdisciplinary Law Journal Vol. 16, 2007, pp. 495 – 522. Barak-Erez, Daphne: The Restoration of Job: Compensation and Justice, in: Levin, Itamar/Rubinstein, Elyakim/Stauber, Roni (eds.), Memory and Justice – Israel’s Supreme Court Judges Write about the Holocaust, Israel 2022, pp. 269 – 288 (Hebrew). Begin, Menachem: A Speech in a Mass Demonstration in Zion Square against the Reparations Agreement with Germany, January 7, 1962, in: Shapira, Anita (ed.), We Hereby Declare: 60 Chosen Speeches in the History of Israel, Or Yehuda: Kinneret, Zmora-Bitan, Dvir 2008, pp. 67 – 70 (Hebrew). 59 I wrote similar things in my concurring opinion in HCJ 6321/14 Ken Lazaken – for the Promotion of the Rights of Old People v. Minister of Finance (9. 3. 2017), especially in para. 11.

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Bilsky, Leora: The Holocaust, Corporations, and the Law: Unfinished Business, Ann Arbor 2017. Bilsky, Leora/Klagsbrun, Rachel: The Return of Cultural Genocide?, European Journal of International Law Vol. 29, 2018, pp. 373 – 396. Blumenthal, Rachel: Right to Reparations: The Claims Conference and Holocaust Survivors, 1951 – 1964, London 2021. Bord, Ofer: Take the Stolen Money from the Hand of the Killer: the Kibbutz Movement and the Reparations Agreement, the Personal Compensation and the Restitution from Germany, Ramat Efal: Yad Tabenkin 2015 (Hebrew). Brunner, José/Nachum, Iris: On the German Legislation and the Israeli Examination Practice Regarding the Germanness of Holocaust Survivors, Law and Business Journal Vol. 10, 2009, pp. 279 – 303 (Hebrew). Brunner, José/Nachum, Iris: “Vor dem Gesetz steht ein Türhüter”. Wie und warum israelische Antragsteller ihre Zugehörigkeit zum deutschen Sprach-und Kulturkreis beweisen mussten, in: Frei, Norbert/Brunner, José/Goschler, Constantin (eds.), Die Praxis der Wiedergutmachung: Geschichte, Erfahrung und Wirkung in Deutschland und Israel, Göttingen 2009, pp. 387 – 424. Chetrit, Sami Shalom: The Mizrahi Struggle in Israel: Between Oppression and Liberation, Identification and Alternative, 1948 – 2003, Tel Aviv: Am Oved 2004 (Hebrew). Diner, Dan: Language and Restitution: The German-Israeli Encounter in Luxembourg, 1952, in: Engelhardt, Arndt/Zepp, Susanne (eds.), Sprache, Erkenntnis und Bedeutung – Deutsch in der jüdischen Wissenskultur, Leipzig 2015, pp. 281 – 295. Dixon, Peter J.: Reparations and the Politics of Recognition, in: De Vos, Christian/Kendall, Sara/Stahn, Carsten (eds.), Contested Justice: The Politics and Practice of International Criminal Court Interventions, Cambridge 2015, pp. 326 – 351. Dwertmann, Ewa: The Reparation System of the International Criminal Court: Its Implementation, Possibilities and Limitations, Leiden 2010. Erdinast-Ron, Amit: Nachempfundenes Recht. Rhetorik und Praxis des israelischen Gesetzes für die Invaliden der NS-Verfolgung, in: Frei, Norbert/Brunner, José/Goschler, Constantin (eds.), Die Praxis der Wiedergutmachung. Geschichte, Erfahrung und Wirkung in Deutschland und Israel, Göttingen 2009, pp. 660 – 689. Gallas, Elisabeth (ed.): A Mortuary of Books: The Rescue of Jewish Culture after the Holocaust, New York 2019. Gruweis-Kovalsky, Ofira: Menachem Begin’s World Travels in the 1950s – A Road to Political Legitimacy, Israel Studies Review Vol. 31, 2016, pp. 22 – 40. HaCohen, Dvora: The One Million Plan: David Ben-Gurion’s Plan for Mass Immigration in the Years 1942 – 1945, Tel Aviv: Defense Ministry 1994 (Hebrew). Halperin, Nitzan: Disability Allowances by Dint of Nazi Persecution and Israeli Society’s Perception of the Holocaust: An Analysis from the Standpoint of Disability Studies’ Critique, Ma’asei Misphat Vol. 5, 2013, pp. 81 – 99 (Hebrew).

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Hockerts, Günter: Wiedergutmachung in Germany: Balancing Historical Accounts 1945 – 2000, in: Diner, Dan/Wunberg, Gotthart (eds.), Restitution and Memory: Material Restoration in Europe, New York/Oxford 2007, pp. 323 – 382. Katz, Yossi: At the Expense of the Victims – New Studies in the Reparations Agreement, Personal Reparations and Return of Property to Victims Residing in Israel, Israel 2009 (Hebrew). Katz, Yossi: ‘Shoah Revenues’: Individual Reparations Claims from Germany as a Source of Income in the 1950s and 1960s, Israel – Studies in Zionism and the State of Israel – History, Society, Culture Vol. 15, 2009, pp. 137 – 165 (Hebrew). Leebaw, Bronwyn: Judging State-Sponsored Violence, Imagining Political Change, Cambridge 2011. Ludi, Regula: Reparations for Nazi Victims in Postwar Europe, Cambridge 2012. Minow, Martha: Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence, Boston 1998. O’Connor, Anne-Marie: The Lady in Gold: The Extraordinary Tale of Gustav Klimt’s Masterpiece, Portrait of Adele Bloch-Bauer, New York 2016. Roht-Arriaza, Naomi: Reparations Decisions and Dilemmas, Hastings Int’l & Comp. Law Review Vol. 27, 2004, pp. 157 – 220. Roht-Arriaza, Naomi/Mariezcurrena, Javier: Transitional Justice in the Twenty-First Century – Beyond Truth versus Justice, Cambridge 2006. Rosenne, Shabtai: The Perplexities of Modern International Law, Hague Academy of International Law Monographs, Revised and Updated Hebrew-Israeli Edition, Hague 2012 (Hebrew). Sagi, Nana: German Reparations: A History of the Negotiations, New York 1980. Schwerin, Kurt: German Compensation for Victims of Nazi Persecution, Northwestern Law Review Vol. 67, 1972 – 1973, pp. 479 – 527. Swirski, Shlomo/Bernstein, Deborah: Who worked in what, for whom and for what? The Economic Development and the Creation of the Ethnic Division of Labor, in: Ram, Uri (ed.), Israeli Society: Critical Perspectives 1993, pp. 120 – 147. Taylor, Charles: The Politics of Recognition, in: Gutmann, Amy (ed.), Multiculturalism Examining the politics of recognition, Princeton 1994, pp. 25 – 73. Teitel, Ruti G.: Transitional Justice, Oxford 2000. Teitelbaum, Raul: Individual Compensation for the Holocaust Survivors and Social Stratification in Israel, Theory and criticism Vol. 27, 2005, pp. 71 – 101 (Hebrew). Teitelbaum, Raul: The Biological Solution – the Scandal of Personal Reparations and Return of Property to Holocaust Survivors, Tel Aviv 2008 (Hebrew). Tovy, Jakob: Don’t Buy Volkswagen! The Herut Movement and the question of Israel-Germany relations 1951 – 1965, Holocaust Stories Vol. 26, 2020, pp. 283 – 305. Tovy, Jacob: Talking after Auschwitz? The public-political struggle in Israel over the negotiation of a Reparations Agreement with West Germany 1951 – 1952, Holocaust Studies Vol. 23, 2017, pp. 483 – 504.

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Weitz, Yechiam: Where’s Menachem Begin? His Disappearance in 1951 and Its Significance, Israel Studies Forum Vol. 20, 2005, pp. 115 – 137. Woolford, Andrew/Wolejsczo, Stefan: Collecting on moral debts: Reparations for the Holocaust and Porajmos, Law and Society Review Vol. 40, 2006, pp. 871 – 902. Yablonka, Hana: Away from the Railroad: the Mizrachi Jews and the Holocaust, Tel Aviv: Yedioth Ahronoth 2008 (Hebrew).

New Typologies of Non-International Armed Conflict? An Analysis of Article 8(2)(f) of the Rome Statute By Leandro Dias and Ezequiel Heffes*

I. Introduction Presently, international humanitarian law (IHL) refers within its scope of application to two types of armed conflict – international armed conflict (IACs) and non-international armed conflict (NIACs). The rules and framework of international humanitarian law that apply vary in some respects depending on how an armed conflict is legally classified. When dealing with NIACs, in principle IHL has a less sophisticated and developed legal framework when compared to IACs. The definition of NIACs is often analyzed through the lens of two different sources of law within the conventions: Common Article 3 of the Geneva Conventions of 1949 (GCs),1 and the 1977 Additional Protocol II2 (AP II) to the GCs (taking into account its more restricted scope of application).3 * Leandro Dias works as a research assistant at the Chair of Criminal Law, Criminal Justice, Legal Theory, Information and Computer Science Law at the University of Würzburg. He is a Lawyer (UBA), holds an LL.M (UTDT, ‘Maestría en Derecho Penal’) and is an DAAD Scholarship holder (Forschungsstipendien – Bi-nationale betreute Promotionen, 2019/20); Dr. Ezequiel Heffes is the Director of Watchlist on Children and Armed Conflict in New York. He holds a PhD from the University of Leiden (Grotius Centre for International Legal Studies), an LL.M. in IHL and Human Rights from the Geneva Academy, and a law degree from the University of Buenos Aires School of Law. The views included in this chapter do not represent those of any institution. 1 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), 75 UNTS 31; 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), 75 UNTS 85; 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War (1949), 75 UNTS; 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949), 75 UNTS 287. 2 1977 Protocol Additional to the Geneva Conventions of 12. 8. 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 UNTS 609. 3 Article 1.1 in fine of AP II, ibid, which establishes its scope of application to armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.

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Common Article 3 applies to “each Party to the conflict” in the context of an “armed conflict not of an international character”. In the seminal Tadic´ decision such a conflict was held to exist by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed opposition groups or between such groups within a State”.4 In turn, AP II is applicable to “all armed conflicts … which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups, which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement t[he] Protocol”.5 Broadly speaking, these two definitions have been the most important legal sources for determining when some forms of violence, referred to as “internal tensions” or “internal disturbances”, reach the threshold where IHL becomes applicable.6 With the adoption of the Rome Statute by the International Criminal Court in 1998, two categories of war crimes during “armed conflicts not of an international character” were recognized as being under its jurisdiction. Articles 8(2)(c) and (e) grant the ICC jurisdiction ratione materiae over serious violations of common Article 3, and other serious violations of the laws and customs applicable in NIACs, respectively. While the Rome Statute does not give a more precise definition of armed conflict in the former case (i. e., when serious violations of common Article 3 are at issue), it does provide a definition of NIACs in the case of serious violations of the laws and customs of war (broadly speaking, and with some exceptions, when serious violations of AP II are committed),7 which is similar, but not identical, to the Tadic´ definition. According to Article 8(2)(f), Article 8(2)(e) “applies to armed conflicts that take place in the territory of a State when there is a protracted armed conflict between governmental authorities and organized armed groups or between such groups”. By focusing on the meaning of this provision, some commentators have suggested that crimes under Articles 8(2)(e) and (f) require a higher threshold than crimes under article 8(2)(c) and (d). In doing so, they have posited that Article 8(2)(e) introduced a 4 Prosecutor v. Tadic´, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, Case No. IT-94-1-T, T.Ch. II, 10. 8. 1995, para. 70. For a detailed treatment of this paragraph, see Bradley, “Protracted Armed Conflict”: A Conundrum, SACJ 32 (2019), pp. 294 – 296. 5 Article 1.1 of AP II. 6 See generally Grignon, The beginning of application of international humanitarian law: A discussion of a few challenges, International Review of the Red Cross 96 (2014), pp. 141 – 142; Policinski/Kuzmanovic, Protracted Conflicts: The enduring legacy of endless war, International Review of the Red Cross 101 (2019), pp. 973 – 976. 7 Bradley, supra note 4, at pp. 293 – 294; Vité, Typology of armed conflicts in international humanitarian law: legal concepts and actual situations, International Review of the Red Cross 91 (2009), p. 81.

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new typology of armed conflict, one that did not exist in IHL before the Rome Statute was drafted.8 In that sense Vité affirmed that “[t]he category of conflict targeted here is … half way between the categories referred to in common Article 3 and in Additional Protocol II”.9 In contrast, others have argued that the threshold required under Article 8(2)(e) is the same as that for the application of common Article 3 under Article 8(2)(c).10 In light of these complexities, it is the objective of this chapter to clarify the threshold needed for the application of the Rome Statute. Are there only two definitions on the basis of common Article 3 (and its interpretation) and AP II? Alternatively, does the Rome Statute recognize a scenario that exists between the two in Articles 8(2)(e) and (f)? Unraveling this question is not simply an intellectual exercise. It is certainly important since Article 8 (2)(f)’s reading not only triggers the ICC’s jurisdiction, but also may include the definition of a NIAC as a part of a crime, i. e., as a contextual element. In order to examine this issue, section 2 will explain how Article 8(2)(f) of the Rome Statute has been interpreted as determining the existence of a NIAC. Two positions advanced in doctrine and case law will be explored. In section 3, we will present our view, which argues in favour of the position that a new typology of NIAC appears to have emerged from the aforesaid provision. This paper submits that only the most restrictive interpretation of Article 8(2)(e) would enable the ICC to comply with the requirements of the nullum crimen sine lege principle as formulated in Article 22 of the Rome Statute. Responses to possible criticisms of our proposal will also be presented. After addressing different alternatives, we conclude that Article 8(2)(f) might indeed create a new type of NIAC that only exists under the Rome Statute.

II. Categories of Non-International Armed Conflict under Article 8(2)(f) of the Rome Statute Article 8(2)(c) refers to serious violations of common Article 3. Its application is further clarified in Article 8(2)(d) through a negative definition: it applies to armed conflicts not of an international character, and thus it does not apply to internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other 8

We should clarify here that from a technical perspective, a new typology implies the creation of a new category of NIAC, while the imposition of a higher threshold means that a previously established category may have stricter requirements in certain situations. In the following paragraphs, we will not make this technical distinction. 9 Vité, supra note 7, at 82. 10 For an overview of the discussion, see Bradley, The “Intensity” Threshold in Article 8(2)(f) of the Rome Statute, SAYIL 42 (2017), pp. 43 – 49; Cameron et al., in: ICRC (eds.), Commentary on the First Geneva Convention, pp. 160 – 161; Pejic, The protective scope of Common Article 3: more than meets the eye, International Review of the Red Cross 93 (2011), pp. 192 – 193.

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acts of a similar nature. Article 8(2)(e) establishes a second set of provisions which deals with other serious violations of the laws and customs of war, which is different from serious violations under common Article 3. By defining the scope of application of Article 8(2)(e), Article 8(2)(f) offers not only the negative definition that is found in Article 8(2)(d) but also a positive one: “It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”. The relevant part of this article is the word “protracted”, a concept which has led to considerable academic discussion that will be discussed below. 1. The Single Category Perspective A number of authors consider that Articles 8(2)(d) and 8(2)(f) establish a single threshold for NIACs, which is really the one contained in common Article 3, as defined in the aforementioned Tadic´ decision.11 In order to reach that conclusion, the primary argument relied upon is that the phrase “protracted armed violence”, as established in Article 8(2)(f), is merely a clarification of Article 8(2)(d). This is because the language used is a reference to the ICTY’s seminal decision.12 Considering that Tadic´ did not set out a new typology for NIACs, but simply offered a definition based on common Article 3 as customary law, it would be misleading to affirm that a new threshold with additional requirements is inherent in the words used by the drafters of the Rome Statute.13 Moreover, following the ICTY’s elaboration of the threshold, the word “protracted” in Article 8(2)(f) would be better interpreted as referring to the duration of the conflict as a non-essential factor to be assessed in determining one

11 See Akande, in: Wilmshurst (ed.), International Law and the Classification of Armed Conflicts, p. 52; Bartels, The Classification of Armed Conflicts by International Criminal Courts and Tribunals, International Criminal Law Review 20 (2020), p. 620; Cottier, in: Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, p. 292; Cullen, The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: an Analysis of the Threshold of Application Contained in Article 8(2)(f), Journal of Conflict & Security Law 12 (2007), pp. 419 – 445; Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, p. 441; Kritsiotis, The Tremors of Tadic´, Israel Law Review 43 (2010), p. 288; Meron, The Humanization of International Law, The American Journal of International Law 94 (2000), p. 260; Moir, in: Clapham/Gaeta/Sassòli (eds.), The 1949 Geneva Conventions: A Commentary, p. 395; Schabas, An Introduction to the International Criminal Court, p. 137 note 357; Sivakumaran, in: Stahn/Sluiter (eds.), The Emerging Practice of the International Criminal Court (2009), pp. 363 – 380; Sivakumaran, The Law of NonInternational Armed Conflict (2012), pp. 192 – 195. 12 Prosecutor v. Tadic´ (IT–94-1), supra note 4. 13 See Meron, supra note 11. This author, nevertheless, explains that while Article 8(2)(f) should not be considered as creating yet another threshold, it may well exacerbate the lack of clarity in this particular issue.

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of the two necessary elements of an NIAC under common Article 3: its intensity.14 As a result, the scope of application of Articles 8(2)(c) and (d) and 8(2)(e) and (f) would be ample, in the sense that a common Article 3 NIAC would suffice. Another reason invoked to support this view can be found in the travaux préparatoires of the Rome Statute, since it is unclear that States intended to create two different thresholds for the existence of NIACs.15 A detailed description and analysis of the travaux préparatoires can be found elsewhere,16 and it suffices for the purposes of this paper to point out that early drafts of the Rome Statute contained all war crimes within a single provision applicable to NIACs.17 While some States favored the inclusion of war crimes committed in internal conflicts, others directly opposed the notion that war crimes could even be committed in internal conflicts, and a third group preferred a higher threshold for the violation of rules that were not contained in common Article 3.18 In order to reach a consensus, the Bureau of the Committee of the Whole proposed a different approach: the requirements and language used in common Article 3 would be inserted in the treaty for violations of the prohibitions included in that provision, and elements of AP II would be included for violations of other laws and customs of war.19 This proposal encountered resistance among the majority of delegates, who considered that the latter standard would be too high and potentially exclude from the jurisdiction of the Court an important number of modern armed conflicts.20 While two States welcomed the proposal – China and Portugal –,21 those that had opposed the inclusion of war crimes in NIACs in the first place did not consider the new proposition to be an improvement.22

14 Akande, supra note 11, at p. 52. It is worth noting that according to the case law of the ad hoc tribunals the word ‘protracted’ encompasses more than a criterion of duration. See in this sense Prosecutor v. Haradinaj et al., Case No. IT-04-84-T, T.CH. I, 3. 4. 2008, para. 49. The other element, according again to the case law, is the organization of the armed group. This requirement raises certain interpretative issues, such as the presence of a responsible command. However, this exceeds the scope of this paper and, thus, we follow the basic premise that every NIAC requires an armed group to have a certain degree of organization. For a detailed discussion, see Sivakumaran (2009) supra note 11. See also Zimmermann/Geiß, in: Ambos (ed.), Commentary on the Rome Statute of the International Criminal Court, pp. 634 – 637. 15 Ibid. Akande. 16 Bradley, supra note 10, at pp. 59 – 68; Cullen, supra note 11, at pp. 423 – 435; Bartels, supra note 11, at pp. 619 – 621. 17 Sivakumaran (2012) supra note 11, at p. 192. 18 Ibid. 19 UN Doc A/CONF.183/C.1/I.59, introductory paragraph to Section D, at. 8. See also Cullen, supra note 11, at pp. 428 – 429. 20 Ibid. at pp. 429 – 430. 21 Sivakumaran (2012) supra note 11, at p. 193. 22 Cullen, supra note 11, at pp. 432 – 434.

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This situation led to a new proposal which was ultimately adopted. It was brought forward by the Sierra Leone representative23 and introduced a definition of armed conflict that could essentially be found in the aforementioned Tadic´ decision of the ICTY Appeals Chamber.24 The slight difference in terminology, specifically the substitution of the phrase “protracted armed violence” with “protracted armed conflict”, was simply an unintended consequence of the English translation of Sierra Leone’s proposal, which was made in French.25 Moreover, it has also been argued that it would be redundant to consider an “armed conflict” as “protracted”, since “protracted” violence is a constituent element of common Article 3 NIACs, as the ICTY has held since the Tadic´ decision was delivered.26 Importantly, a substantive argument against this differentiation can also be raised: a differentiation between NIACs, as set out in common Article 3, and a new type of NIAC, under the Rome Statute, would go against the ever-growing tendency to consider prohibited conduct and individual criminal liability arising therefrom as always being the same, despite the nature of the armed conflict. The presence of a new threshold would in fact be problematic, and that would be because some wrongful actions committed in certain armed conflicts would fall within the ICC’s jurisdiction, while the same conduct, committed in other conflicts, would not.27 This distinction is relevant because specific activities referred to in Article 8(2)(c) are not the same as those enshrined in Article 8(2)(f): for example, the recruitment of children under the age of fifteen years – Article 8(2)(e)(vii) – would be an offence in the latter type of armed conflict, but not in the former. Furthermore, the former provision affirms that all offences under that section stand “within the established framework of international law”, and for that reason it would seem unusual to place the interpretation of Article 8(2)(f) outside that framework by creating a new typology that has no basis under IHL.28 2. The New Typology Hypothesis Based on the wording and ordinary meaning of Article 8(2)(f), in contrast to the negative definition in Article 8(2)(d), another interpretation holds that the Rome Statute creates a new type of NIAC. Some have posited, in this regard, that by requiring in Article 8(2)(f) that an armed conflict be protracted, the Rome Statute provides an intermediary threshold of application between common Article 3 and AP II,29 in ad23

UN Doc A/CONF.183/C.1/I.62. Cullen, supra note 11, at pp. 432 – 435. 25 Sivakumaran (2009) supra note 11, at p. 374. 26 Dörmann, supra note 11 at p. 441. 27 Sivakumaran (2009) supra note 11, at p. 375. 28 Cullen, supra note 11, at pp. 443 – 445. 29 See Sassòli/Bouvier/Quintin, How does law protect in war? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, p. 23; Vité, 24

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dition to the threshold of common Article 3 provided by Articles 8(2)(c) and (d) for serious violations of common Article 3. This is mainly because it does not demand that the conflict take place between governmental forces and an organized armed group, or that that the group controls part of the territory, or even that it operates under a responsible command,30 all requirements found in AP II, but it adds a compulsory time criterion through the word protracted.31 This interpretation of the text is further supported by the fact that common Article 3 – unlike Article 8(2)(f) – does not require the conflict to be protracted, so that individual criminal liability may arise for serious violations of this provision without that requirement being fulfilled, as affirmed by Articles 8(2)(c) and (d).32 In that context, duration is a factor that could be taken into account when evaluating the situation, but it certainly does not constitute a mandatory element per se.33 According to this view, when it comes to war crimes arising from serious violations of common Article 3, under Article 8(2)(c) of the Rome Statute, such crimes may be perpetrated in a wide range of categories of internal armed conflicts (i. e., any “armed conflict not of an international character”, leaving aside “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature”). In these circumstances, the general requirements established in the Tadic´ decision would be fully applicable. Article 8(2)(f), however, imposes a higher threshold for other war crimes than serious violations of common Article 3, since it requires that the relevant provisions only apply “to armed conflicts that take place in the territory of a state when there is a protracted armed conflict between governmental authorities and organized groups or between such groups”.34 The fact that most of the offences codified in Article 8(2)(e) are taken from AP II offers a substantive ground for this differentiation. In other words, the duration of the armed conflict, as a conditio sine qua non for the application of Article 8(2)(e)35, would place it above the threshold necessary for triggering common Article 3. At the same time, the lack of certain requirements, such as the involvement of government forces, an organized armed group, control over territory or the existence of a supra note 7, at p. 82; Olásolo, Unlawful Attacks in Combat Situations, pp. 81 – 82; Provost, International Human Rights and Humanitarian Law, p. 268 et seq.; Cassese et al., Cassese’s International Criminal Law, p. 82. See also Bradley, supra note 10, at p. 79 (who offers several arguments in favor of this view, but in the end leaves the question open). 30 Ibid. Sassòli/Bouvier/Quintin. 31 Vité, supra note 7, at p. 82. Despite the fact that ICTY in its Haradinaj et al decision has clarified that the “protracted” element is to be interpreted as the intensity requirement (see supra note 14), Vité, based on certain authors, insists on duration of the conflict by affirming with respect to the ICC is that it is indeed “an integral part of the very concept of paragraph (2)(f)”. 32 Olásolo, supra note 29, at p. 31. 33 Vité, supra note 7, at p. 82. 34 Cassese et al., supra note 29, at p. 82. 35 Olásolo, supra note 29, at p. 31.

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responsible command, would put Article 8(2)(e) and (f) below the threshold necessary for triggering Article 1 of AP II. Thus, Article 8(2)(e) and (f) appear to create a separate category of NIAC within which the Rome Statute criminalizes grave violations of IHL which do not necessarily derive from common Article 3 (such as the rules included in AP II).36 As Cassese has noted, the rationale behind the Rome Statute’s differentiation of war crimes committed in NIACs into two categories can be explained by the fact that common Article 3 has already acquired the status of customary international law, while AP II has not, or at least had not at the time that the Rome Conference took place.37

III. What Does the Case Law Say? The first tribunal that offered an opinion on this matter was the ICTY in the Limaj case. The judges of the Trial Chamber stated obiter dictum that Article 8(2)(f) does not introduce a new threshold for NIACs, but rather simply enunciates the same requirements that the ICTY had previously set out for an armed conflict under common Article 3: organization of the parties and intensity of the violence.38 While this first approach to the issue given by the ICTY could be considered to be a path towards the acceptance of the single threshold position, the case law of the ICC has offered little guidance regarding this matter. The conclusions reached by PreTrial Chamber I in the Lubanga decision on the confirmation of charges are particularly obscure. On the one hand, the judges held that Article 8(2)(f) defined the concept of NIAC for the purposes of Article 8(2)(e), but then resorted to AP II in order to interpret those two provisions of the Rome Statute, without explaining why this treaty could be applied by the Court in the first place.39 On the other hand, the same Chamber then made reference to ICTY case law in order to determine whether the organization of the parties and the intensity in the violence had reached the minimum threshold, holding that the Rome Statute does not require territorial control as a mandatory requirement.40 Thus, this interpretation resorts to AP II, while denying the prerequisite of territorial control without a further clarification.This approach was es36

Vité, supra note 7, at p. 82. Cassese et al., supra note 29, at p. 82. 38 Prosecutor v. Limaj et al., Judgment, Case No. IT-03 – 66-T, T. Ch. II, 30. 11. 2005, para. 37

87.

39 Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06-803tEN, P-T. Ch. I, 29. 01. 2007, § 229 – 232. The Pre-Trial Chamber I considered the relevant conflict both as international (from early.9.2002 until 2. 6. 2003) and non-international (until December 2003). However, the Trial Chamber changed this legal characterization – invoking Regulation 55 of the Regulations of the Court – and considered the armed conflict as a noninternational one. For a detailed analysis of the ICC case law (including other less well-known cases), see Bartels, supra note 16, at pp. 621 – 639. 40 Ibid. Lubanga, § 233.

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sentially followed in the Mbarushimana confirmation of charges decision41 and in the Al-Bashir arrest warrant decision.42 It is considered to be a tacit reception of the new typology.43 The view of ICC Trial Chamber I in the Lubanga trial judgment, later followed by Trial Chamber II in Katanga,44 was slightly different. There was no direct reference to AP II, and the judges did not infer that the definition of Article 8(2)(f) was applicable only to the crimes codified in Article 8(2)(e).45 Indeed, the judges stated that not only was there no territorial control requirement, but also that a responsible command was not mandatory.46 On the contrary, they established that the requirements imposed by the Rome Statute were the same as those indicated by the ICTY in several cases: organization of the parties and intensity of the violence.47 For those reasons, it seems that the judges of ICC Trial Chamber I considered that the threshold of Article 8(2)(f) would be exactly the same as a common Article 3 NIAC. Both the decision on the confirmation of charges and the judgment in the Ntaganda case support such an interpretation: despite the fact that the accused had been charged with the commission of war crimes under Article 8(2)(e), the Court simply focused its analysis in a generic fashion on the presence of an NIAC, thus implicitly suggesting that the Rome Statute does not differentiate between the two NIACs contained within Article 8(2).48 The position of Pre-Trial Chamber II in the Bemba confirmation of charges decision also deserves further attention, in particular, as the prosecution had charged the accused for war crimes that could be found both in Article 8(2)(c) and 8(2)(e). In that case, the Chamber relied upon the traditional distinction between IACs and NIACs, 41 Prosecutor v. Mbarushimana, Decision on the confirmation of charges, ICC-01/04-01/ 10-465-Red, P-T. Ch. I, 16. 12. 2011, § 130. 42 Prosecutor v. Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, P-T. Ch. I, 4. 3. 2009, § 57 – 59. See also § 60 “to date, control over the territory by the relevant organized armed groups has been a key factor in determining whether they had the ability to carry out military operations for a prolonged period of time” (emphasis added). 43 Sivakumaran (2012) supra note 11, at p. 195. 44 Prosecutor v. Katanga, Judgment, ICC-01/04-01/07-3436, T. Ch. II, 7. 3. 2014, para. 1183, et seq. But see the differences regarding the overall theoretical treatment of NIACs in Bartels, supra note 11, at pp. 625 – 628. 45 Prosecutor v. Lubanga, Judgment, ICC-01/04-01/06-2842, T. Ch. I, 14. 3. 2012, para. 536. It should be noted that the Appeals Chamber of the ICC confirmed the verdict but did not address this issue. 46 Ibid. 47 Judgment, Lubanga, supra note 45, paras. 537 – 538. The case law cited by the Trial Chamber were the following: Limaj et al., supra note 38, para. 90; Haradinaj et al., supra note 14, para. 60; Prosecutor v. Bosˇkoski and Tarcˇ ulovski, Judgment, Case No. IT-04-82-T, T. Ch., 10. 7. 2008, paras. 199 – 203. Prosecutor v. Mrksˇic´ et al., Judgment, Case No. IT-95-13/1-T, T. Ch. II, 27. 9. 2007, para. 407. 48 Prosecutor v. Ntaganda, Decision on the confirmation of charges, ICC-01/04-02/06-309, P-T. Ch. II, 9. 6. 2014, paras. 31 – 34; Prosecutor v. Ntaganda, Judgment, ICC-01/04-02/062359, T. Ch. VI, 8. 7. 2019, paras. 701 – 703.

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and not between two – or more – armed conflicts within the latter category.49 Despite this clarification, the decision referred to the interpretational problem which arises from the structure of the Rome Statute, as the requirement of protracted armed conflict is not present in Article 8(2)(d).50 The judges held that this omission could be seen as imposing a higher threshold, but decided not to tackle the problem directly because the period relating to the charges – five months – was clearly protracted, and therefore both provisions were likely to be applicable.51 While the judges resorted once again to the two traditional requirements of organization of the parties and the intensity in the violence, they reaffirmed at the same time that the presence of a responsible command was not mandatory,52 and that the duration of the conflict for a certain length of time appeared to be an additional element that had to be taken into consideration.53 In 2016, the ICC Trial Chamber III followed the same view in the Bemba judgment, but stated that the potential distinction would only have significance if the Chamber were to reach a conclusion that the conflict in question was not “protracted”, and therefore found it unnecessary to further address the difference.54 Following that approach, the Pre-Trial Chamber III stated, while interpreting Article 8(2)(f) and with express reference to the Bemba confirmation of charges decision, that “the duration of any relevant confrontation is to be considered when assessing whether there was a protracted armed conflict”.55 In a nutshell, ICC case law is inconsistent in this regard, as other commentators have already pointed out.56 In particular, there is a tendency to assimilate the require-

49 Prosecutor v. Bemba, Decision on the confirmation of charges, ICC-01/05-01/08-424, PT. Ch. II, 15. 6. 2009, para. 216. 50 Ibid. para. 235. 51 Ibid. para. 235. 52 Ibid. para. 234. 53 Sivakumaran (2012) supra note 11, at p. 195. In a later decision, the opinion of this particular Chamber was less clear because it analysed articles 8(2)(c), 8(2)(d), 8(2)(e) and 8(2)(f) altogether. See Prosecutor v. Ntaganda, Decision on the Prosecutor’s Application under Article 58, ICC-01/04-02/06-36-Red, P-T. Ch. II, 13. 7. 2012, para. 45. 54 See Prosecutor v. Bemba, Judgment, ICC-01/05 – 01/08 – 3343, P-T. Ch. III, 21. 3. 2016, para. 138. For a similar conclusion, see Bradley, supra note 10, at pp. 741 – 75. 55 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Côte d’Ivoire, Situation in the Republic of Côte d’Ivoire (ICC-02/11-14), P-T. Ch. III, 3. 10. 2011, paras. 120 – 121. In this situation, the confrontation lasted for two and a half months. The duration of the conflict was also taken into account recently in Prosecutor v. Al Mahdi, Judgment and Sentence, ICC-01/12-01/15-171, T. Ch. VIII, 27. 9. 2016, paras. 44 – 45. 56 Hrnjaz/Simentic, Protracted Armed Violence as a Criterion for the Existence of Noninternational Armed Conflict: IHL, ICL and beyond, Armed Groups and International Law available at https://www.armedgroups-internationallaw.org/2021/04/29/protracted-armed-vio lence-as-a-criterion-for-the-existence-of-non-international-armed-conflict-ihl-icl-and-beyond/ (accessed at 20. 3. 2023.). See also Lewis, The notion of “protracted armed conflict” in the Rome Statute and the termination of armed conflicts under international law: An analysis of

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ments of Article 8(2)(f) with the usual criteria provided by the ICTY in Tadic´, which in principle would be applicable to NIACs under Common Article 3. However, we also see how the judges of the Court may at times have made an effort to deliberately leave open the question of whether the Rome Statute establishes a new intermediate category of non-international armed conflicts of a “protracted” nature. Therefore, the question remains open.

IV. Defending the New Typology: Interpretation of Article 8(2)(f) through the Lens of the Nullum Crimen Principle (Article 22) This section argues that the new typology hypothesis is the preferred one. That is because it is the more restrictive of two feasible interpretations of an obscure provision, and therefore the one which better complies with the requirements of the nullum crimen principle, as established in the Rome Statute. In the following paragraphs we will outline the elements of this principle in order to determine how the present discussion could be resolved. We will also offer counterarguments to the main objections that have been raised against the new typology as a way of establishing that it is in fact a reasonable interpretation. 1. The Nullum Crimen Principle and the Lex Stricta Requirement in the Rome Statute The principle of legality, also known as nullum crimen sine lege, is a fundamental human rights rule in the field of criminal law.57 It establishes that both an offence and possible penalties must be clearly defined by law, and that the retroactive application of criminal law is prohibited.58 This safeguard contributes to the legitimacy of the criminal justice system by limiting criminal charges to those that have a prior basis in law59 as well as by offering foreseeability when it comes to legal punishment.60 According to some commentators, it “expresses an incontrovertible minimum of respect for the principle of autonomy: citizens must be informed of the law before it can be fair to convict them of an offence, and both legislatures and courts must apply the rule by not criminalizing conduct that was lawful when done”.61 select issues, International Review of the Red Cross 101 (2019), p. 1102: “not entirely coherent”, p. 1104: “somewhat confusing, criss-crossing jurisprudential approach”. 57 See e. g. Article 7 ECHR, Article 9 ACHR, Article 11(2) UDHR, Article 15 ICHR. 58 Grabenwarter, European Convention on Human Rights: A Commentary, p. 172. 59 See Broomhall, in: Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, p. 716. 60 See Roxin/Greco, Strafrecht. Allgemeiner Teil. Band I: Grundlagen. Der Aufbau der Verbrechenslehre, p. 214. 61 Ashworth/Horder, Principles of Criminal Law, p. 56.

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For those reasons, the principle of legality found its way into the basic principles of international criminal law, having been recognized as customary law,62 and requiring the existence of a rule, written or not, from which the criminal nature of an individual’s conduct could be derived.63 In this sense, the Rome Statute expressly adopts the nullum crimen principle in Article 22(2), and the case law of the ICC has derived from it four requirements that are usually formulated in domestic law:64 lex praevia (prohibition of the retroactive application of criminal law), lex scripta (prohibition of punishment based on non-formal sources),65 lex certa (prohibition of vague or uncertain offenses) and lex stricta (prohibition of analogy and nonstrict interpretations). These prerequisites are neither capricious nor are they merely formal statements. The rationale behind the nullum crimen principle is to provide effective safeguards against arbitrary prosecution, conviction and punishment, which are fundamental pillars of the rule of law.66 Despite the abhorrent nature of the crimes that fall within the jurisdiction of the ICC, if international criminal law seeks to become a just and mature system which affirms the value that all human beings should be treated with dignity as moral agents,67 it is imperative that principles such as nullum crimen be respected.68 Although it would exceed the scope of this contribution to examine the aforementioned aspects of this principle, it is important to keep in mind that the lex stricta principle bans the use of analogy when deciding whether an offence has been committed – article 22(2), first sentence –.69 This requirement means that the Court cannot rely 62 Werle/Jessberger, Principles of International Criminal Law, p. 48; Satzger, International and European Criminal Law, p. 220. 63 Ibid. Werle/Jessberger, at p. 40 64 Lubanga, supra note 39, § 303. Generally, the four prerequisites have been developed particularly in the civil law tradition. Nevertheless, similar elements can be found in common law systems, despite the existence of historical differences, related in particular to the possibility of judicial law making through analogy. Suffice to say for the purposes of this paper that those differences are less problematic nowadays since most criminal law in Anglo-American jurisdictions is now statutory and common law crimes have by and large been abolished. For a comparative analysis, see Chiesa, in: Dubber/Hörnle (eds.), Oxford Handbook of Criminal Law, at pp. 1099 – 1101; Davidson, How to Read International Criminal Law: Strict Construction and the Rome Statute of the International Criminal Court, St. John’s Law Review 91 (2017), pp. 45 – 46. 65 In a similar sense, Jacobs argues for the exclusion of any other source of punishment than positive law. See Jacobs, in: Aspremont/Kammerhofer (eds.), International Legal Positivism in a Post-Modern World, pp. 4531 – 455. 66 Shahabuddeen, Does the Principle of Legality Stand in the Way of Progressive Development of Law?, Journal of International Criminal Law 2 (2004), p. 1008. 67 Robinson, A Cosmopolitan Liberal Account of International Criminal Law, Leiden Journal of International Law 21 (2013), pp. 133 – 135. 68 See Ambos, Treatise on International Criminal Law. Volume I: Foundations and General Part, pp. 143 – 150. 69 See Judgment, Kokkinakis v. Greece (Application no. 14307/88), European Court of Human Rights, 25. 5. 1993, § 52.

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on reasoning by analogy to extend the scope of a criminal law rule to a situation that was unregulated by law.70 As Broomhall explains, “[i]t was felt that such a practice violated the nullum crimen principle, failed to give fair notice to potential accused, was retrospective and robbed the criminal law of its power to deter”.71 Of course, it is not always evident when an interpretation should be considered as being based on analogy, and when it can be considered a legitimate elucidation of the statute. It could be said that the prohibition insists that courts respect the ordinary language of the statute,72 but the limits of interpretation are far from being clear. In particular, the legality principle does not offer a rule to resolve the problem that arises when there are many reasonable interpretations of a provision, all of which are compatible with its ordinary meaning. In continental criminal law, for example, this void is filled using various different “canonical methods” of interpretation – grammatical, systematic, historical and teleological interpretations,73 among others – but the absence of a conclusive method has led to vagueness. It is a state of affairs that is hardly compatible with the rationale of the principle of legality and the goal of creating a predictable and systematic legal order.74 The same could be said of international criminal law, because the accepted reliance on the Vienna Convention on the Law of Treaties (VCLT), with its mix of methodological approaches,75 has created a situation of legal uncertainty as different courts have interpreted the same provisions in different ways.76 However, the drafters of the Rome Statute clearly established in Article 22(2) a provision that resolves this conundrum by codifying the strict construction principle 70

Cassese et al., supra note 29, at p. 33. Broomhall, supra note 59, at p. 725. 72 Kurth, The Lubanga Case of the International Criminal Court: A Critical Analysis of the Trial Chamber’s Findings on Issues of Active Use, Age, and Gravity, Goettingen Journal of International Law 5 (2013), p. 442. See also Hochmayr, Applicable Law in Practice and Theory. Interpreting Article 21 of the Rome Statute, Journal of International Criminal Justice 12 (2014), p. 663. 73 Hilgendorf/Valerius, Strafrecht. Allgemeiner Teil, p. 13. 74 See Kubiciel, Die Wissenschaft vom Besonderen Teil des Strafrechts, pp. 31 – 51. 75 See Jacobs, supra note 65, at pp. 466 – 470. 76 That is true even in the case law of the ICC. For example, the term “participate actively in hostilities” in the crime of child recruitment in Article 8(2)(e)(vii) has been interpreted at least in three different ways by the ICC, none of them compatible with the general understanding of the term in International Humanitarian Law. For a summary of this discussion, with further references, see Harwood, Guest Post: A Matter of Distinction: “active” and “direct” participation in hostilities and the war crime of using child soldiers, in: Spreading the Jam (14. 7. 2014), available at: http://dovjacobs.com/2014/07/14/guest-post-a-matter-of-distinc tion-active-and-direct-participation-in-hostilities-and-the-war-crime-of-using-childsoldiers/ (accessed at 20. 3. 2023); Harwood, Guest Post: A Matter of Distinction Part II: participation of children in hostilities following the Lubanga Appeal Judgment, in: Spreading the Jam (19. 12. 2014), available at: http://dovjacobs.com/2014/12/19/guest-post-a-matter-ofdistinction-part-ii-participation-of-children-in-hostilities-following-the-lubanga-appeal-judg ment/ (accessed at 20. 3. 2023); Zimmermann/Geiß, supra note 14, at pp. 655 – 658. 71

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as well as the favor rei rule.77 This states that “in case of ambiguity, the definition of a crime shall be interpreted in favour of the person being investigated, prosecuted or convicted”. This goes beyond the usual standards of nullum crimen,78 offering a substantive aspect of the in dubio pro reo principle: when faced with conflicting interpretations of a rule; the construction that favors the accused must prevail.79

2. The New Typology as a Restrictive Interpretation of Ambiguous Provisions Before examining the terms included in Article 8(2)(f) through the lens of the nullum crimen principle, another issue must be addressed. The scope of the principle of legality is limited, at least at first sight, when dealing with the interpretation of definitions of the crimes.80 When it comes to the definition of an armed conflict, the issue seems to be whether the contextual element should be considered as a mere jurisdictional prerequisite, or whether it is a substantive element of the offense. In the former case, the nullum crimen principle may not apply, or at least would require an explanation as to why it should be applied to a requisite that is not included in the elements of the offence. But in the later, the strict construction rule, and other derivations from Article 22(2), would be fully applicable. Furthermore, it is worth noting that the Elements of Crimes explicitly state that “[t]he elements for war crimes under article 8, paragraph 2 (c) and (e), are subject to the limitations addressed in article 8, paragraph 2 (d) and (f), which are not elements of crimes”. As a result, it could be argued that 77

Satzger, supra note 62, at p. 221; Schabas, in: Dewulf (ed.), Liber amicorum Chris Van den Wyngaert, p. 423. 78 Satzger, supra note 62, at p. 221. In Germany, for example, there is no rule that obliges judges to choose the less strict of two (or more) reasonable interpretations of a legal term. In the United States, the Supreme Court has made a reference to this principle, but it is considered widely ignored. See Dubber/Hörnle, supra note 64, at pp. 99 – 100. 79 Cassese et al., supra note 29, at p. 35, for case law references. This means that the debate as to whether the in dubio pro reo principle applies to questions of fact as well as questions of law, addressed not too long ago at the ICTY and the STL, has been clearly resolved by the drafters of the ICC. See Declaration of Judge Shahabuddeen, Prosecutor v. Limaj et al., Judgment, Case No. IT-03 – 66-T, A.Ch., 27. 9. 2007, paras. 2 – 6; Partially Dissenting and Separate Opinion and Declaration of Judge Schomburg, Judgment, Appeals Chamber, 27. 9. 2007, § 15 – 20; Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I/AC/R176bis, A. Ch., 16. 2. 2011, paras. 32, 211, 263 – 264. 80 Article 22(2) of the Rome Statute appears to support this conclusion when it states that ‘The definition of a crime shall be strictly construed and shall not be extended by analogy’ (emphasis added). But the matter is not nearly resolved. When it comes to the legality principle, Judge Van den Wyngaert, for example, tends to expand the scope at least to the modes of criminal liability. See Concurring Opinion of Judge Christine Van den Wyngaert, Prosecutor v. Ngudjolo Chui, ICC-01/04-02/12-4, T. Ch. II, 18. 12. 2012, paras. 6 – 21. In any case, the question of whether or not a strict construction applies to the provisions of the Rome Statute other than those that define offenses is still open, as Schabas pointed out. See Schabas, supra note 11, at p. 216.

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Article 8(2)(f) is not really an element of the offence. However, the Elements of Crimes, according to Article 9(1) of the Rome Statute, only “assist the Court in the interpretation and application of articles 6, 7 and 8”, so the main issue is to determine whether there are compelling reasons to believe that Article 8(2)(f) of the Rome Statute is in fact a contextual element of the offence, or not.81 Addressing these questions is essential for determining whether the contextual element influences the content of wrongfulness of the conduct.82 This chapter argues that this is precisely the case with respect to the existence of an armed conflict. First, it is clear that some behaviours are prohibited only in certain kinds of conflict, and thus the classification of the conflict is a step that impacts on the criminal liability of the accused.83 Secondly, the contextual element is what differentiates an international crime from an abhorrent but domestic offense. While the murder of a group of children is certainly outrageous and heinous conduct, the rules regarding core international crimes do not apply unless it is committed in specific contexts – i. e. during an armed conflict, where there is a nexus between the killings and the conflict. In other words, only the existence of an armed conflict makes the respective behavior a war crime, otherwise it would only be a crime under national law. Thirdly, the Elements of Crimes expressly consider war crimes contextual elements as part of the definition of the offense, stating that “[t]here is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms ‘took place in the context of and was associated with’”.84 While there is debate on whether the mens rea should include the legal nature of the conflict, i. e. whether the conflict is an IAC, a NIAC, or neither, the accused needs at least to be aware of the factual circumstances establishing the existence of an armed conflict,85 including the criterion of being “protracted”. The ad hoc Tribunals initially rejected such an approach,86 but since the Delalic´ trial judgment,87 followed

81

Nevertheless, the relationship between the Rome Statute – specially Article 21 – and the Elements of Crimes is quite troublesome. See Bitti, in: Stahn/Sluiter (eds.), The Emerging Practice of the International Criminal Court, pp. 285, 288 – 292; Cryer, Royalism and the King: Article 21 of the Rome Statute and the Politics of Sources, International Criminal Law Review 12 (2009), pp. 395 – 404; Hochmayr, Applicable Law in Practice and Theory. Interpreting Article 21 of the Rome Statute, Journal of International Criminal Justice 12 (2014), pp. 657 – 658. 82 Ambos, Selected Issues Regarding “Core Crimes”, International Criminal Law: Quo vadis?, Nouvelles Études Pénales 19 (2004), p. 270. 83 Decoeur, Avoiding Strict Liability in Mixed Conflicts: A Subjectivist Approach to the Contextual Element of War Crimes, International Criminal Law Review 13 (2013), p. 474. 84 Art. 8 – War Crimes: Introduction, Elements of the Crimes. 85 See Ambos, Treatise on International Criminal Law, pp. 170 – 171. 86 Prosecutor v. Tadic´, Judgment, Case No. IT-94-1-A, A. Ch., 15. 7. 1999, para. 249. 87 Prosecutor v. Delalic´ et al. (Celibici), Judgment, Case No. IT-96-21-T, T. Ch., 16. 11. 1998, para. 1212; and Prosecutor v. Delalic´ et al. (Celibici), Judgment, Case No. IT-96-21-T, A. Ch., 20. 2. 2001, para. 817.

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ˇ erkez appeals judgment,88 the need for awareness of the facts reby the Kordic´ and C lated to the armed conflict and the applicability of the nullum crimen principle has now been acknowledged.89 Finally, the ICC has not yet dealt with the issue in the context of war crimes, but the Appeals Chamber already rejected the argument that the definition of a contextual element could be considered as a mere jurisdictional issue. It went as far as affirming that the existence of “the requirement of an ‘organizational policy’ as a component of crimes against humanity is clear from the wording of article 7(2)(a) of the Statute”.90 The same reasoning would apply mutatis mutandis to the existence of a protracted armed conflict. Having determined that an armed conflict is a contextual element of the crime, the nullum crimen principle obliges the judge to apply a strict interpretation. As explained earlier, there are two reasonable interpretations of this vague provision,91 and while scholars have offered substantial reasons to choose one or the other, it is mandatory for ICC’s judges to choose the one which favors the accused, as the final step in their interpretative sequence.92 The answer is evident: the new threshold hypothesis acts as a pro reo solution as it requires (in situations where the crimes established in Article 8(2)(e) may have been committed) the additional element of duration that could be derived from the phrase “protracted armed conflict”, creating a higher threshold for NIACs. An example may help clarify the issue. If we accept the new alternative threshold, an organized armed group’s member who recruits a group of 14-year-old children in the middle of clashes that lasted a few of days could not stand trial at the ICC under Article 8(2)(e)(vii), because the requirement, of protracted conflict understood as an additional criterion of duration imposed by the wording of the Rome Statute, would not be fulfilled.93 But if we accept that the duration of the Prosecutor v. Kordic´ and Cˇ erkez, Judgment, Case No. IT-95-14/2, A. Ch., 17. 12. 2004, para. 311. 89 For an analysis of the ICTY case law on this matter, see Ambos, supra note 85. 90 Prosecutor v. Ruto et al., Decision on the appeals of Mr. William Samoei Ruto and Mr. Joshua Arap Sang against the decision of Pre-Trial Chamber II of 23. 1. 2012 entitled “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, ICC-01/09-01/11-414, A. Ch., 24. 5. 2012, para. 31. See also Prosecutor v. Muthaura et al., Decision on the appeal of Mr. Francis Kirimi Muthaura and Mr. Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23. 1. 2012 entitled “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, ICC-01/09-02/ 11-425, A. Ch., 24. 5. 2012, paras. 32 – 38. 91 Kress, War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice, Israel Yearbook on Human Rights 30 (2000), pp. 103, 117. We assume that both interpretations are prima facie reasonable. The fact that in the literature there is a long-standing interpretational dispute allows us to consider that there are substantial grounds to sustain both interpretations and this is precisely the case in which Article 22(2) becomes applicable. However, in the next section, we will try to offer additional arguments to support the new typology hypothesis. 92 Broomhall, supra note 59, at p. 726. See also Judgment Katanga, supra note 43, para. 53. 93 It should be noted, however, that this would only refer to conduct not covered by Article 8(2)(c) of the Rome Statute and that this does not mean that the threshold of Articles 8(2)(c) 88

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conflict is not a mandatory element to be taken into account, then the accused could face charges before the ICC if other criteria were met. Supporters of the single threshold alternative can offer several arguments to underscore the advantages of their position, but they avoid the fact that the interpretation proposed here is the only one that complies with the lex stricta requirement of Article 22(2). Of course, the strict construction requirement should also have limits,94 because in any legal system there is an inevitable element of judicial interpretation and there will always be a need for interpretation of doubtful points of law as well as for a certain amount of adaptation to changing circumstances.95 But this limitation has to be reconciled with the rationale of the principle and, in particular, with the arguments related to fair warning and foreseeability. In the above-mentioned example, it is clear that clashes that last less than a week cannot be considered protracted, but what would be the case for a two-year armed conflict? One could argue that the term protracted needs to be interpreted as requiring intensity during several years, and that it would be the most restrictive interpretation. The problem there is that such an argument cannot be seriously defended, because no reasonable person could think that only in a long-term NIACs could war crimes be perpetrated. When facing two possible readings of a rule contained in the Rome Statute, the interpreter would need to consider if both of them were reasonable and foreseeable. If that were indeed the case, then the stricter reading should prevail because the open texture of language generates doubts, a particularly undesirable consequence when it comes to establishing individual criminal liability and imposing sanctions that severely impact on the freedom of the accused.96 Furthermore, if foreseeability is doubtful, then the in dubio pro reo principle should apply, which would see the interpretation that favors the accused as prevailing. As pointed out by the judges of the ICTY Trial Chamber in the Krstic´ case: “[i]n accordance with the principle that where there is a plausible difference of interpretation or application, the position which most favours the accused should be adopted”.97 Usually, arguments about foreand (d) is less rigid than the usual one of a common Article 3 NIAC. On the contrary, the Tadic´ test remains fully applicable in cases of war crimes derived from common Article 3 and the duration of the conflict should be taken into account while assessing the intensity of the violence. Thus, even in a common Article 3 scenario – Article 8(2)(c) – it would be questionable whether a conflict that lasted only a few days could pass the Tadic´ threshold. 94 In Grover’s words: “[I]t is often asserted that strict construction cannot surreptitiously gut the concept of interpretation of all meaning”. Grover, A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court”, The European Journal of International Law 21 (2010), p. 555. 95 Judgment, K.-H. W. v. Germany (Application no. 37201/97), European Court of Human Rights, 22. 3. 2001, para. 85. 96 See Kimel vs. Argentina (Serie C Nr. 177), Inter-American Court of Human Rights, Fondo, reparaciones y costas, 2. 5. 2008, § 63; Castillo Petruzzi et al. v. Perú (Serie C Nr. 52), Inter-American Court of Human Rights, Fondo, reparaciones y costas, 30. 5. 1999, para. 121. 97 Prosecutor v. Krstic´ et al., Judgment, Case No. IT-98 – 33-T, T. Ch., 02. 8. 2001, para. 502.

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seeability are addressed in a different manner by tribunals and lead to opposite results: an interpretation, even contra reo, would be permissible if foreseeable and consistent with the essence of the offense, in order to allow the gradual judicial clarification of the rules of criminal law.98 But such a view needs to be rethought if the ICC is to take the strict construction principle seriously and respect the high standards that nullum crimen in Article 22(2) imposes. In this sense, a judicial interpretation would only be lawful when another interpretation that favors the accused is considered unreasonable. 3. The Reasonableness of the New Typology It is now quite clear that an objection to the new alternative typology can still be raised, arguing that this interpretation is neither reasonable nor foreseeable. Let us now present some specific points as to why the new alternative typology should be followed. First of all, it could be argued that if the ordinary meaning of the Rome Statute is not clear, the interpreter should refer to the original context and intent of the drafters as supplementary means of interpretation as per Article 32 of the VCLT.99 As the drafters of the Rome Statute supposedly did not intend to create a new typology for NIACs, this would seriously undermine the interpretation advanced in this chapter. This objection assumes that in cases of ambiguity the VCLT contains the governing principles for the interpretation of the Rome Statute.100 However, the Rome Statute also has its own separate rules of interpretation when it comes to the definitions of crimes,101 and Article 22(2) acts as a lex specialis. In cases of doubt, it does not matter, for example, what the intention of States was, because ultimately the principle of legality prevails, at least at the ICC.102 As stated above, it is not clear whether nullum crimen applies to provisions separate from those that define the relevant offence,103 but considering that the notion of an armed conflict is in fact an element of the crime, it is not possible to avoid the application of Article 22(2). And even if we assume that the VCLT is applicable in this case, it would not be possible to infer, without a shadow of a doubt, that the drafters of the Rome Statute rejected the idea of a differentiated 98

C.R. v. The United Kingdom, Decision of 22. 11. 1995, [1995], ECHR, para. 34. Cullen, supra note 11, at p. 436. 100 See, for example Prosecutor v. Katanga, Judgment, ICC-01/04 – 01/07 – 3436, T. Ch. II, 7. 3. 2014, paras. 54 – 56. 101 Schabas, supra note 11, at pp. 215 – 216. 102 Jacobs, supra note 65, at p. 37. 103 Arguing against the expansion of the nullum crimen principle to procedural and jurisdictional matters, see Olásolo, El principio nullum crimen sine iure en Derecho Internacional contemporáneo, Anuario Ibero-Americano de Derecho Internacional Penal 1 (2013), pp. 38 – 40. For a soften application of Article 22(2) to general principles of criminal law, Berster, “Duty to Act” and “Commission by Omission”, International Criminal Law Review 10 (2010), p. 644. 99

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threshold. What is clear is that they rejected the requirements of AP II, but that does not make impossible the creation of a middle ground NIAC existing between the elements of AP II and those of common Article 3. Secondly, another objection could be found with regard to the object and purpose of the Rome Statute. Certainly, some might argue that by limiting the scope of Article 8(2)(f), the interpreter is going against one of the main purposes of the Statute, which is, inter alia, to put an end to impunity for perpetrators of international crimes.104 This argument presupposes that victim-centered teleological reasoning105 necessarily triumphs over nullum crimen considerations, a scenario which is not possible in the system imposed by the Rome Statute with its clear rule on pro reo interpretation. That means that if legality is recognized as the guiding principle for interpreting crimes at the ICC, it would require the textual approach to prevail over competing intent as well as object and purpose-based approaches.106 Furthermore, it is particularly important to observe that this does not imply that the conduct should remain unpunished. As a matter of fact, the perpetrator could (and should) face charges in another jurisdiction. Instead, we are only arguing that the ICC would not have jurisdiction ratione materiae over such war crimes. Thirdly, Article 8(2)(e) affirms that “war crimes” include “other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law”, and the introduction to Article 8 of the Elements of Crimes also emphasizes that “the elements for war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed conflict” (emphasis added). In light of these provisions, the creation of a new threshold outside of the framework of international law of armed conflict could be considered as arbitrary in nature. Yet, this objection should not be overestimated. The creation of a new typology for NIACs, applicable only in respect of the ICC system, is not incompatible with the law of armed conflict, as this new typology does not conflict with the main two conventional sources dealing with the existence of NIACs – common Article 3 and AP II. In this same sense, it is worth noting that the creation of certain categories only applicable in (and for) certain courts or regimes is just another consequence of the socalled fragmentation of international law. This fragmentation exists within the current framework of international law and, despite some initial dissatisfaction, today it

104 Preamble, Rome Statute, fifth paragraph. For a similar argument against a broad interpretation of a criterion of duration for NIAC crimes, see Ambos, supra note 85, at p. 155. 105 See Robinson, The Identity Crisis of International Criminal Law, Leiden Journal of International Law 21 (2008), pp. 933 – 938. 106 See Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, pp. 398 – 399; concurring Opinion of Judge Christine Van den Wyngaert, Chui, supra note 80, para. 18.

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is not seen in a negative light.107 Therefore, it would not be unreasonable to interpret the Rome Statue this way – in fact, scholars have already considered the ICC system as a “self-contained regime”.108 As a result, unless one takes a pessimistic approach to the issue, the consequences of this fragmentation of typologies is not necessarily a problem. All these arguments help us to understand why the new typology should be preferred, but still not much has been written about the precise threshold of application of Article 8(2)(f). The terminology that appears in Article 8(2)(f) is practically identical to the language used in the ICTY Appeals Chamber’s decision in Tadic´ as is evident from the following table: Article 8(2)(f) Rome Statute

Tadic´ Appeals Chamber Decision, paragraph 70

It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.

As aforementioned, it has already been noted that because the Tadic´ definition established a threshold of applicability for common Article 3, the same should be said about Article 8(2)(f). But the wording of the Rome Statute prevents such a conclusion as violations of common Article 3 are explicitly recognized in Article 8(2)(c) and 8(2)(d). The difference between these provisions and those related to other serious violations of the laws and customs applicable in NIACs (with a specific definition of a NIAC – Article 8(2)(e) and 8(2)(f) –) could be understood as supporting the existence of two distinct categories of crimes,109 and it would be incoherent to consider that they could all take place under the same definition/threshold.110 Thus, we could conclude that the word “protracted” imposes an additional requirement when com107

For a similar perspective, see Stahn/Van den Herik, in: Stahn/Van den Herik (eds.), The Diversification and Fragmentation of International Criminal Law, pp. 21 – 89. 108 See, among others, Werle/Burghardt, Do Crimes against Humanity Require the Participation of a State or a “State-like” Organization?, Journal of International Criminal Justice 10 (2012), p. 1156. For a more skeptical approach cf. Hrnjaz/Simentic, supra note 56. 109 Schabas, supra note 11, at p. 116. 110 Cullen considers that the opening sentence of Article 8(2)(e) – ‘Other serious violations of the laws and customs applicable in armed conflicts not of an international character’ – is significant since the term “other” places the offenses within the same category of common Article 3. While this is an interesting argument, a full reading of the provision does not necessary support this conclusion. One could argue that with “other”, the Rome Statute refers to violations that are essentially different. In any case, the situation is not quite clear and thus the in dubio pro reo principle applies. The same could be said about the terms “armed conflicts not of an international character”, as Cullen argues that the phrase is taken directly from common Article 3. That is true, but again, a plain reading of the Rome Statute does not support such an inference. Cullen, supra note 11, at pp. 440 – 443.

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pared with common Article 3. This condition could be understood, based on the ordinary meaning of the word,111 as imposing a criterion of duration, not just the intensity of the violence as a non-determinative factor, but as a mandatory one. As Ambos explains, it cannot reasonably mean that military operations must continue uninterrupted for an overly long period of time, but only for a certain time.112 The determination that a conflict that could meet the requirements for the applicability of common Article 3 is considered as protracted would have to be made on a case-by-case basis. Current NIACs provide room for this differentiation between protracted and non-protracted armed conflicts,113 and the precise characteristics of the conflict may determine its classification. What is clear, though, is that the elements of AP II were not included in Article 8(2)(f), placing this threshold halfway between common Article 3 and the AP II. The fact that the English version of the Statute may differ from the English version of the Tadic´ decision, because the drafters misunderstood the Sierra Leone proposal and translated it imprecisely114, does not affect our conclusion. As stated previously, this implies an analysis of the travaux préparatoires that is not necessarily welcomed by Article 22(2).115 For the sake of our argument, even if recourse to the process of negotiation of the treaty is relevant, the issues of interpretation that arise cannot be resolved against the accused. The plurilingualism that characterizes the system of the Rome Statute generates problems of indeterminacy and uncertainty that must be taken seriously,116 and the only way to respect the legality principle in those cases is to apply the strict construction rule.117

111

See Lewis, supra note 56, at pp. 1906, 1101; Zimmermann/Geiß, supra note 14, at p. 681. The Spanish and French versions of the Rome Statute further clarify the ordinary meaning of the word, as the drafters chose the term “prolonged” – prolongado and prolongée, respectively – as a synonym of “protracted”, an adjective with no clear translation in these languages. For a similar argument and focusing on the French text, see Bradley, supra note 10, at pp. 58 – 59. 112 Ambos, supra note 85, at p. 155. See also Boot, in: Cassese/Gaeta/Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, p. 422. 113 Ibid. Ambos. 114 Sivakumaran supra note 11, at pp. 192 – 194. In that sense, the relevant part of the Tadic´ decision uses the term “conflit armé prolongé”, and those were the terms of the Sierra Leone proposal. According to Sivakumaran, all comes down to a conflict of translation: “conflit armé” was translated as “armed conflict” rather than “armed violence”. 115 Grover, supra note 111, at pp. 416 – 418. 116 See Fronza/Malarino, in: Ambos/Woischnik/Malarino (eds.), Temas actuales del derecho penal internacional: contribuciones de América Latina, Alemania y España, pp. 169 – 203. 117 This new interpretation offers a new typology that would be applicable only to the autonomous regime of the ICC, and, as it was affirmed above, it should not affect the development of IHL on the issue. The fact that the strict interpretation proposed here could be in variance with the recent trend in IHL of offering a unified concept of NIAC is just one of the issues that can arise from the fragmentation in international law.

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In conclusion, a final practical objection could be raised: assuming that there is in fact a new typology that could be defined as a middle ground definition of NIACs, the implications of this theoretical discussion would be minimal because the crimes committed in non-protracted armed conflicts would in any case fall within Article 8(2)(c). But this assessment does not take into account the fact that the Rome Statute offers two independent lists of crimes. For murder, for example, a NIAC under the definition of common Article 3 would suffice. However, this is not the case for seizing the property of an adversary without a justification. This is a crime that is codified in Article 8(2)(e)(xii) and can only be committed in a protracted armed conflict. One should think about a situation similar to the La Tablada case,118 an alleged armed conflict that, according to the Inter-American Commission of Human Rights, lasted only two days. In a situation such as that one, in which the high intensity of the violence could result in a common Article 3 NIAC,119 the ICC would not have jurisdiction if the crimes committed were the ones codified in Article 8(2)(e).

V. Concluding Remarks This paper has attempted to cover one specific question posed by international law: the definition of NIACs in the ICC Statute from an international criminal law perspective. As we have tried to show, this is certainly important due to possible violations of the nullum crimen sine lege principle, which is a cornerstone of the human rights guarantees of criminal law. Theoretically speaking, by focusing on the meaning of the provisions included in the abovementioned treaty, some commentators have argued that crimes under Article 8(2)(e) have a different threshold than crimes under Article 8(2)(c). Indeed, some have argued that Article 8(2)(e) introduces a new NIAC typology, i. e.one that did not exist in IHL before the Rome Statute was drafted. Others contend that the threshold required under Article 8(2)(e) is the same as that for the application of common Article 3 under Article 8(2)(c).

118 Juan Carlos Abella v. Argentina, Report No. 55/97, Case 11.137, Inter-Am. C.H.R. 271, OEA Ser. L/V/II.98, Doc. 6 Rev. (1998), paras. 155 – 156. On the practical relevance for the ICC system of establishing an intermediate typology, given the large number of non-international armed conflicts today, cf. Bradley, supra note 4, at pp. 297 – 298. 119 Ibid. In para. 155, the Commission interestingly affirmed the following: “What differentiates the events at the La Tablada base from these situations are the concerted nature of the hostile acts undertaken by the attackers, the direct involvement of governmental armed forces, and the nature and level of the violence attending the events in question. More particularly, the attackers involved carefully planned, coordinated and executed an armed attack, i. e., a military operation, against a quintessential military objective – a military base. The officer in charge of the La Tablada base sought, as was his duty, to repulse the attackers, and President Alfonsín, exercising his constitutional authority as Commander-in-Chief of the armed forces, ordered that military action be taken to recapture the base and subdue the attackers”.

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However, we have proposed that the new typology is the right interpretation of Article 8(2)(f) since it is the more restrictive of two reasonable understandings of the provision, and thus the one which complies best with the requirements of the nullum crimen principle. Certainly, this will not resolve all the issues raised, but there is room for new paradigms to be explored, particularly in light of both how this could operate in the real world, as well as the practical consequences that would follow. Lastly, when interpreting the concept of NIAC in the Rome Statute, traditional concepts of international criminal law, which seem to only be focused on ending the impunity of perpetrators of international crimes, must be rethought. What seems to be necessary, then, is to take into account that nullum crimen considerations must not be overruled within the system imposed by the Rome Statute, which clearly establishes a pro reo understanding as the last interpretative step. It is certainly important to bear in mind that this does not imply that conduct will remain unpunished – in fact, perpetrators can face charges in other jurisdictions – but only that the rights of the accused, as a moral agent and holder of human dignity, should be taken seriously. Bibliography Akande, Dapo: Classification of Armed Conflicts: Relevant Legal Concepts, in: Wilmshurst, Elizabeth (ed.), International Law and the Classification of Armed Conflicts, Oxford 2012, pp. 32 – 79. Ambos, Kai: Selected Issues Regarding “Core Crimes”, International Criminal Law: Quo vadis?, Nouvelles Études Pénales Num. 19, Toulouse 2004, pp. 219 – 282. Ambos, Kai: Treatise on International Criminal Law. Volume I: Foundations and General Part, Oxford 2013. Ambos, Kai: Treatise on International Criminal Law. Volume II: The Crimes and Sentencing. 2nd edition, Oxford 2022. Ashworth, Andrew/Horder, Jeremy: Principles of Criminal Law, Oxford 2013. Bartels, Rogier: The Classification of Armed Conflicts by International Criminal Courts and Tribunals, International Criminal Law Review Vol. 20 No. 4, 2020, pp. 595 – 668. Berster, Lars: “Duty to Act” and “Commission by Omission”, International Criminal Law Review Vol. 10, 2010, pp. 619 – 646. Bitti, Gilbert: Article 21 of the Statute of the International Criminal Court and the treatment of sources of law in the jurisprudence of the ICC, in: Stahn, Carsten/Sluiter, Göran (eds.), The Emerging Practice of the International Criminal Court, Boston 2009, pp. 288 – 292. Boot, Machteld: War Crimes, in: Cassese, Antonio/Gaeta, Paola/Jones, John (eds.), The Rome Statute of the International Criminal Court: A Commentary, Munich/Oxford/Baden-Baden 2002. Bradley, Martha: “Protracted Armed Conflict”: A Conundrum, South African Journal on Criminal Justic (SACJ) Vol. 32, 2019, pp. 292 – 323.

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Policinski, Ellen/Kuzmanovic, Jovana: Protracted Conflicts: The enduring legacy of endless war, International Review of the Red Cross Vol. 101 No. 912, 2019, pp. 965 – 976. Provost, René: International Human Rights and Humanitarian Law, Cambridge 2002. Robinson, Darryl: A Cosmopolitan Liberal Account of International Criminal Law, Leiden Journal of International Law Vol. 26, 2013, pp. 127 – 153. Robinson, Darryl: The Identity Crisis of International Criminal Law, Leiden Journal of International Law Vol. 21, 2008, pp. 925 – 963. Roxin, Claus/Greco, Luís, Strafrecht. Allgemeiner Teil. Band I: Grundlagen. Der Aufbau der Verbrechenslehre, 5th edition, Munich 2020. Sassòli, Marco/Bouvier, Antonie/Quintin, Anne: How does law protect in war? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law. Volume I: Outline of International Humanitarian Law, 3rd edition, Geneva 2011. Satzger, Helmut: International and European Criminal Law, Munich 2012. Schabas, William: Strict Construction and the Rome Statute, in: Dewulf, Steven (ed.), Liber amicorum Chris Van den Wyngaert, Antwerpen 2017. Schabas, William: An Introduction to the International Criminal Court, 6th edition, Cambridge 2020. Shahabuddeen, Mohamed: Does the Principle of Legality Stand in the Way of Progressive Development of Law?, Journal of International Criminal Justice Vol. 2, 2004, pp. 1007 – 1017. Sivakumaran, Sandesh: Identifying an armed conflict not of an international character in: Stahn, Carsten/Sluiter, Göran (eds.), The Emerging Practice of the International Criminal Court, Leiden 2009, pp. 363 – 380. Sivakumaran, Sandesh: The Law of Non-International Armed Conflicts, Oxford 2012. Stahn, Carsten/Van den Herik, Larissa: “Fragmentation”, Diversification and “3D” Legal Pluralism: International Criminal Law as the Jack-in-The-Box?, in: Stahn, Carsten/Van den Herik, Larissa (eds.), The Diversification and Fragmentation of International Criminal Law, Leiden 2012. Vité, Sylvain: Typology of armed conflicts in international humanitarian law: legal concepts and actual situations, International Review of the Red Cross Vol. 91, 2009, pp. 69 – 94. Werle, Gerhard/Burghardt, Boris: Do Crimes against Humanity Require the Participation of a State or a “State-like” Organization?, Journal of International Criminal Justice Vol. 10, 2012, pp. 1151 – 1170. Werle, Gerhard/Jessberger, Florian: Principles of International Criminal Law, 4th edition, Oxford 2020. Zimmermann, Andreas/Geiß, Robin: Article 8 in: Ambos, Kai (ed.), Commentary on the Rome Statute of the International Criminal Court. A Commentary, Munich 2022.

Justice Danziger’s Judgment on the Boycott Law H.C.J. 5239/11 Uri Avneri v. The Knesset (Reported in Nevo, 15 April 2015) By Avigdor Klagsbald*

I. Introduction My acquaintance with Supreme Court Justice (Ret.) Professor Yoram Danziger extends over more than 50 years. Our acquaintance became closer during our studies at the Law Faculty of Tel Aviv University, at which time we also became close friends. In 1985 this friendship led us to establish the law firm Danziger, Klagsbald & Co. immediately after completion of our PhD studies. We remained partners and close friends for over 20 years, until Justice Danziger was appointed to the Supreme Court in 2007. Alongside the important judgments he issued, Justice Danziger stood out as a humane and patient judge, who strictly protected the parties’ rights. In his work as a judge, Justice Danziger was characterized by quiet leadership, a love of humanity, humor, and firm insistence on fundamental human rights. I dedicate this article to Justice Danziger and to his judicial and professional achievements. To my mind, Justice Danziger’s judgment on the Boycott Law (handed down in 2015) is his most important and original judgment in public law. The judgment demonstrates Justice Danziger’s boldness and creativity and underscores his zealous protection of fundamental human rights. I have therefore chosen this judgment as the focus of my own comments in this paper.

II. The Constitutional Structure of the State of Israel It was the intention of the founding fathers of the State of Israel to have a written constitution established within a short period of time following the founding of the state. This intention was set forth in the Declaration of Independence, the founding document that established the State of Israel:

* Dr. Avigdor Klagsbald, Ph.D. holds the Chair of the Rubinstein Center for Constitutional Challenges (RCCC), Harry Radzyner Law School, Reichman University. I thank Rotem Darvish and Noga Moskowitz for their dedicated help.

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Avigdor Klagsbald … WE DECLARE that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called “*Israel”…

This declaration was also based on the United Nations Resolution of 29 November 1947, which stated that the Jewish state to be established in Palestine would have a constitution, even setting forth the rights it would protect. Among other reasons, due to ideological and political disagreements in the young, newly-established state, it was argued that since the new state was in the process of change and formation, no entrenched constitution should be adopted. Another argument that was raised against establishing a written constitution in those early days was that only a minority of the Jewish people was in Israel, and that the state had no right to adopt a constitution that would bind those persons who had not yet immigrated to the country. It was further argued that due to the state’s unique character and problems, there was difficulty in reaching agreement by all segments of the population on the formative social principles shaping the People and the essence of its life, and that the argument over the constitution could lead to a cultural war between the religious and non-religious sectors. Another objection was voiced by the religious parties which believed that the State of Israel did not need a constitution, since the Torah was the only constitution of the People of Israel. Since Ben Gurion’s coalition government in those days was made up of his own party – Mapai (the Workers Party of the Land of Israel) – and the religious parties, the government was reluctant to limit its control of the Knesset. All of these reasons led to the failure of the Constituent Assembly, elected immediately after the establishment of the state, in completing its mission of establishing a constitution for Israel. In 1949, after the failure to promote the constitution, the Constituent Assembly enacted the Transition Law, which made the Constituent Assembly into the first Knesset, and consolidated in a single institution – the Knesset – both its original legislative power and the constituent power which it inherited from the disused Constituent Assembly. The disagreement on whether the Knesset was required to establish a constitution, and whether it ought to do so, later re-emerged. Following those arguments, the Knesset decided not to establish a constitution immediately, but rather to enact the constitution ‘piecemeal’, by way of ‘Basic Laws’ which would in due course come together to form the constitution. This solution was expressed in the Knesset’s resolution of 1950, named after its sponsor – the “Harari Decision”, whereby: … The First Knesset instructs the Constitution, Law and Justice Committee to prepare a draft State Constitution. The constitution will be built chapter by chapter, in such a way that each will constitute a separate Basic Law. The chapters shall be presented to the Knesset when the

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committee completes its work, and all the chapters together shall comprise the Constitution of the State …1

Thus came into being the Basic Laws, the future chapters of the constitution of Israel. According to the Harari Decision, the Knesset deemed itself as acting in two capacities: The first, as a legislative authority enacting regular laws; the second, as a constituent authority enacting Basic Laws, which in the future would come together as a constitution. The Harari Decision was thus a political compromise that, on the one hand, protected the principle that it is the Knesset which has the power to establish a constitution and would in the future do so, and, on the other hand, that its establishment would be deferred to an unspecified length of time. Only in 1958 did the Third Knesset enact the first Basic Law, the Basic Law: the Knesset. Until 1992, additional Basic Laws were enacted, addressing institutional regulation: Basic Law: Israel Lands; Basic Law: the State President; Basic Law: the Government; Basic Law: the State Economy; Basic Law: the Army; Basic Law: Jerusalem the Capital of Israel; Basic Law: the Judiciary; and Basic Law: the State Comptroller. Throughout all of those years, and despite various efforts, the Knesset was unable to agree on consolidating the Basic Laws to form a single whole constitution, nor was it able to approve a declaration of fundamental rights, which would also be established in a Basic Law: Human and Civil Rights. Over the years, a dispute arose as to the status of such Basic Laws, and particularly on the question of whether they enjoyed normative (constitutional) superiority over ordinary laws of the Knesset. In a series of judgements, the Supreme Court ruled that pending completion of the constitution, the status of Basic Laws would be identical to that of ordinary laws. In 1992, two specific Basic Laws were enacted which explicitly enshrined several fundamental rights. Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. These Basic Laws established for the first time several human rights in legislation of a constitutional nature which, in certain senses, overrides ordinary legislation. In this context, the question of the status of the Basic Laws resurfaced. In the revolutionary judgment in Re Bank Hamizrahi, the Supreme Court – in an extended panel headed by Chief Justices Shamgar and Barak – ruled that by establishing ‘Basic Laws’, the Knesset was acting in its capacity as a constituent assembly and that therefore the Basic Laws enjoy normative superiority over ordinary legislation of the Knesset, and serve as an actual constitution of the State of Israel. This revolutionary judgment regulated the Knesset’s dual power as a constituent authority and as a legislative authority, and determined that the court had the power to exercise judicial review over laws of the Knesset and declare them null and void in case they purport to change Basic Laws, since Basic Laws rank highest on the normative ladder. It was therefore ruled that a Basic Law or any of its provisions would not be changed other than by another Basic Law. 1

Annex H to the transcript of Meetings 150 – 152 of the First Knesset.

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Conversely, an infringement of the provisions of a Basic Law (which does not amount to “changing” the Basic Law) may also be made by an ordinary law, provided that it meets the conditions of the (constitutional or judicial) Limitation Clause, whereby: “Rights under this Basic Law shall not be infringed other than in a law befitting the values of the State of Israel, intended for a worthy purpose, and to a proportionate extent”.

III. The Status of the Basic Laws As aforesaid, the Basic Law: Human Dignity and Liberty, and the Basic Law: Freedom of Occupation are the Basic Laws which, for the first time, established human rights on a constitutional foundation. Basic Law: Human Dignity and Liberty sets forth human dignity and human liberty as basic values. From it are derived the human rights which are protected by the Basic Law, which has been accepted as the “Bill of Human Rights”. The Basic Laws list several rights which were enshrined in the Basic Laws as having super-statutory status, with explicit protection by the Basic Laws, including the right to life, bodily integrity and dignity;2 the right to property;3 the right to liberty;4 freedom of movement: the right to leave Israel and the right of citizens to enter Israel;5 the right to privacy,6 and the right to freedom of occupation. These rights had been previously recognized in Israeli law by Supreme Court rulings, but were then awarded new status by the new Basic Laws. In view of the explicit mention of these rights in the Basic Laws, they are known as the “listed rights” of the Basic Laws. In addition, in a growing number of explicit statements in Supreme Court case law and legal literature, additional rights were recognized which have not been explicitly mentioned in the new Basic Laws, and yet gained super-statutory status, including the freedom of faith, worship and religion;7 the freedom of creation, the freedom of assembly and procession, the freedom of association, the right to equality,8 the freedom of strike and lockout;9 the freedom of engagement and the freedom of contract; the right to receive information from the authorities; consumer rights; the right to parenthood; a person’s right to know who his parents are; rights in criminal law including the right of detainees to meet with an attorney; the right of accused persons to crossexamination; the right to due process of law; the presumption of innocence, and of 2

Section 3 of the Basic Law: Human Dignity and Liberty. Section 5 of the Basic Law: Human Dignity and Liberty. 4 Section 6 of the Basic Law: Human Dignity and Liberty. 5 Section 7 of the Basic Law: Human Dignity and Liberty. 6 Section 8 of the Basic Law: Human Dignity and Liberty. 7 Barak, Interpretation in Law: Constitutional Interpretation, p. 225. 8 Barak, Interpretation in Law: Constitutional Interpretation, p. 423. 9 HCJ 93/1074 The Attorney General v. The National Labor Court, PDI 49(2) 485. 3

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course the right relevant to the matter at hand – freedom of expression.10 Since these rights are derived from one of the listed rights – mainly the right to dignity – they are known as the “unlisted rights”. Even though these rights were not explicitly listed in the Basic Laws (at times intentionally, in view of internal political disagreements in the Knesset which might have led to non-enactment of the Basic Law), they have gained super-statutory status by virtue of the Basic Laws as part of ‘human dignity’, and sometimes also by virtue of ‘democratic principles’. The status of these rights was enshrined over the years by the Supreme Court as judge-made rights. Once such rights were afforded super-statutory status, that entailed the constitutional limit on the power of the Knesset to infringe them only in a law which met the Limitation Clause, as well as the Supreme Court’s power to set aside laws of the Knesset for prohibited infringement of such rights.

IV. The Constitutional Status of Freedom of Expression As aforesaid, freedom of expression is not listed in the Basic Law: Human Dignity and Liberty, or in any other Basic Law. However, freedom of expression has been recognized as a derivative right of the right to dignity in numerous judgments. Freedom of expression gained superior status already in the late 1950s in the Kol Ha’am Judgment, one of Israel’s first constitutional judgments, predating the Basic Law: Human Dignity and Liberty by 40 years. In that case, Justice Agranat established freedom of expression as a vital component of a democratic regime. Justice Agranat derived freedom of expression, as a binding legal right in the State of Israel, directly from the democratic nature of the state. As later written by (then) Justice Landau in Re Film Studios,11 freedom of expression “is one of those basic rights that is not written down but directly derives from the nature of the state as a democratic, freedomseeking state”. In a long series of judgments over the years, and after the judgment in Re Hamizrahi Bank, freedom of expression was awarded constitutional, super-statutory status, as a right deriving from human dignity, either as a ‘subsidiary’ right, or as a right ‘implied’ by human dignity,12 or as a constitutional liberty deriving from the funda10

CA 92/105 Re’em Engineers Contractors v. The City of Upper Nazareth et al., PDI 47 – 5 (189), 200 and HCJ 53/73 Kol Ha’am Ltd. v. The Minister of the Interior, PDI 7, 871. 11 HCJ 62/243 Film Studios in Israel v. Levi Garry, PDI 16, 2407, 2415. 12 CA 4534/02 Schocken Network Ltd. v. Hertzikovitz, PDI 58(3) 558, 565 – 566 (2004); HCJ 2557/05 The Majority Headquarters v. The Israel Police, PDI 62(1) 200, 215 – 218 (2006); PPA 4463/94 Golan v. The Prison Service, PDI 50(4) 136, 156 – 157 (1996); LCA 10520/03 Ben Gvir v. Dankner, paragraph 10 of the judgement of (then) Justice E. Rivlin (Nevo, 12 November 2006); Re: The People’s Voice, paragraphs 22 – 26 of the judgement of (then) Justice M. Naor, p. 760 – 763; Barak, “Human Dignity”, Hamishpat – The College of Management Law Review 7 (2002), p. 517 et seq.

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mental values of the State of Israel as a Jewish and democratic state: “What is human dignity without the basic human liberty to hear others and voice one’s own opinions; to develop one’s personality, to form one’s world views and to fulfill oneself?!”,13 and “the right in this case, political freedom of expression, is, in our legal view, ‘tightly linked to human dignity’”.14 From all of the aforesaid arises consensus that freedom of expression has been awarded constitutional, super-statutory status, as a right deriving from human dignity:15 Case law has repeatedly determined that freedom of expression is an integral part of the right to dignity, as freedom of expression is vital to one’s self-fulfillment and realization of one’s personality. It is our long-standing legal tradition that the freedom of expression is a constitutional liberty deriving from the fundamental values of the State of Israel as a Jewish and democratic state. The freedom of expression maintains a reciprocal relationship with democracy: Democracy is a prerequisite for the freedom of expression, and the freedom of expression lends content to democracy. It is for good reason that the freedom of expression has been termed a ‘supreme right’, ‘the heart and soul of democracy’… and other such expressions and idioms coined, and praise sung over the years in honor of ‘that giant known as the freedom of expression’…”

Thus, even though freedom of expression is not explicitly listed in the Basic Laws, it was recognized by case law as having constitutional, super-statutory status. Therefore, the court has the power to set aside laws which infringe on freedom of expression and do not meet the conditions of the Limitation Clause.

V. The Conditions of the Limitation Clause As aforesaid, the validity of an infringement of freedom of expression is reviewed through the Limitation Clause set forth in Section 8 of the Basic Law: Human Dignity and Liberty: Infringement of Rights Rights under this basic law shall not be infringed other than in a law befitting the values of the State of Israel, intended for a worthy purpose, and to a proportionate extent, or according to a law as aforesaid by virtue of explicit authorization therein.

In fact, the Limitation Clause sets forth four cumulative conditions for considering whether the infringement of the right is constitutional: The first condition requires that the infringement of the constitutional right be made by law (or according to a law by virtue of explicit authorization therein). The second condition is that the law be consistent with the values of the State of Israel. This language has been inter13

The opinion of Justice Matza in CA 4463/94 Avi Hananya Golan v. The Prison Service, PDI 50(4) 136, 153 (1996). 14 (Then) Justice Naor in HCJ 10203/03 The People’s Voice Ltd. v. The Attorney General, PDI 62(4) 715, 763 (2008). 15 CA 751/10 John Doe v. Dr. Ilana Dayan-Orbach, paragraph 4 (Nevo, 8 February 2012).

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preted as aimed primarily at the values of Israel as a “Jewish and democratic state”, which should be honored in the spirit of the principles in the Declaration of Independence of the State of Israel, all as set forth in Sections 1 and 1 A of Basic Law: Human Dignity and Liberty. This framework also allows for consideration of other fundamental values of the State of Israel. The third condition set forth in the ‘Limitation Clause requires that the law be for a worthy purpose. The fourth and last condition for review of the constitutionality of the infringement of the basic right is that the infringement is “proportionate”. The proportionality of the law is reviewed under the three sub-tests of proportionality, as set forth in case law: The rational connection test, the test of the means of lesser harm and the test of proportionality in the ‘narrow sense’, sometimes referred to as the ‘relativity test’, which includes a quasi-cost/benefit test – checking the existence of proportionality between the social benefit inherent in fulfilling the purpose of the law, and the damage which may be caused to the protected right.

VI. The Boycott Law The Law for the Prevention of Harm to the State of Israel through Boycotts, 57712011 (known in short as the “Boycott Law”) was enacted by the 18th Knesset on 11 July 2011. The law provides that a public call for a cultural, academic, or economic boycott of any entity, “due only to its connection to the State of Israel, any of its institutions or an area under its control”, is a civil wrong, establishing grounds for a claim in tort by such person or entity, where there is a reasonable possibility that the call will lead to the imposition of a boycott and where the person publicly making the call is aware of such possibility (Section 2 of the law). The law further imposes an administrative sanction on anyone calling for a boycott, preventing him from participating in public tenders (Section 3 of the law) as well as a sanction barring the receipt of benefits from the State (Section 4 of the law). The original law approved by the Knesset also stated that if the court finds that a tort under this law was committed maliciously, it may award damages against the tortfeasor which are not dependent on the damage, and whose amount is determined considering the circumstances of perpetration of the tort, its severity and scope – subject to the provisions of the Tort Ordinance. Let us briefly review the legislative history of the Boycott Law. In the context of various calls made by international and local entities to boycott products and services supplied by Israeli individuals, companies and institutions in territories beyond the Green Line, which are held by Israel under belligerent occupation, a private bill was submitted to the Knesset in 2010. The bill originally distinguished between three types of boycott: a boycott imposed by an Israeli resident or citizen; a boycott imposed by a foreign resident or citizen; and a boycott imposed by a foreign political entity, through a law enacted by the foreign political entity or according to a determination by the Government of Israel. The bill stated that such boycott was a civil

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wrong and a criminal offense punishable by a fine. Later in the legislative process, the bill was narrowed to refer only to a boycott imposed by an Israeli resident or citizen, and the classification of the boycott as a criminal offense was lifted: … the aim of this law is to prevent damage caused by boycotts imposed on various entities due to their connection to the State of Israel. The boycotts may harm the business, cultural or academic activity of the boycotted entity, and cause it severe damage, both economic and reputational … (from the explanatory notes of the law)

Those opposed to the law believed that the law violated freedom of expression and political protest in Israel, as in practice its aim was to use sanctions to thwart criticism and political protest against Israel’s control of and policy in the occupied territories. Accordingly, the legal adviser of the Knesset and the Attorney General warned that the law was not constitutional and would not withstand the test of the Supreme Court, but did not refrain from defending its legality before the Supreme Court. Indeed, after the enactment of the Boycott Law was completed, several petitions were filed with the Supreme Court sitting as the High Court of Justice, seeking revocation of the law on the grounds that the law was not constitutional, as it infringed a string of constitutional rights, including freedom of expression, the right to equality and the freedom of occupation. The petitioners challenging the Boycott Law argued that the sanctions set forth in Sections 2 – 4 of the Boycott Law were not constitutional, since they violated freedom of expression. The petitioners claimed that a boycott was a legitimate democratic instrument like a demonstration or procession, and allowed citizens to express objection to the policies of a private or public body. Thus, for example, various groups impose a variety of boycotts for consumer, religious, conscientious or other reasons. Hence, impeding the possibility of calling for a boycott of the State of Israel within its meaning in the law, through the imposition of sanctions on anyone who does so, violates freedom of expression.

VII. The Minority Opinion of Justice Yoram Danziger Justice Dangizer’s judgement was a minority opinion.16 Justice Danziger ruled that the Boycott Law substantially violated freedom of expression. To his mind, 16

The majority opinion in this case was handed down by Justice Melcer, whose key conclusions were as follows: With respect to the first condition, and a fortiori so, the Boycott Law is an act of legislation of the Knesset and therefore this condition is obviously fulfilled; the second condition is that the law fit the values of the State of Israel. The petitioners claim that the law infringes on freedom of expression and prejudices the democratic nature of the state. Conversely, the Knesset believes that the state needs to defend itself against those who wish to destroy it, or against those who wish to change its character, and is a means that a “defensive democracy” needs to have in its “toolbox”. Furthermore, the law is intended to prevent discrimination against citizens of the State of Israel, whether due to their national identity or due to their living in areas under state control. The judges were of unanimous

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the Boycott Law did not pass the third subtest of proportionality ‘in the narrow sense’, particularly in terms of a call for boycott of a region, and he ruled that calling for a opinion that calls for boycott against the State of Israel within its meaning in the Boycott Law do not meet the traditional purpose of freedom of expression. Contrary to the position of the petitioners, whereby the calls for boycott promote “an open and productive political discourse”, such calls do not in fact seek political decision-making based on free will, but rather seek to enforce positions through economic and other means. This means of a call for economic, academic and cultural boycott – precisely what the Boycott Law seeks to defend against – therefore does not serve democracy, as it is not a case where freedom of expression is used as a means of persuasion – a cornerstone of democratic states. Rather, freedom of expression is used as a means of coercion, which undermines the values of democratic states. In order to promote freedom of thought and opinion, a democratic state will seek to encourage a free market of opinions through freedom of expression. However, where this freedom is used (by way of calls for boycott) as an instrument for the infringement of individuals’ rights to decide according to their opinions and beliefs – it is possible to somewhat reduce the protection of freedom of expression. Hence the calls for boycott fall into the category known in constitutional literature as the democratic paradox, i. e. the doctrine of the ‘defensive democracy’, under which it is permitted to limit the rights of those who seek to enjoy democracy in order to harm it. The judges thus believed that the law was not inconsistent with the status of the State of Israel as a Jewish and democratic state. The third condition in the limitation clause requires that it be demonstrated that the law infringing on the constitutional right be for a worthy cause. The purpose of the Boycott Law is, inter alia, to prevent harm through boycotts in the State of Israel, within the meaning of these expressions in the law; and to delineate the boundaries between what is and is not permissible within freedom of expression, i. e. – it is permissible to express any political opinion and attempt persuasion; it is permissible to demonstrate; it is prohibited to call for a boycott. A law that is intended to prevent boycotts promotes a worthy cause in its legal sense and applicability, as it gives, inter alia, expression to the right of equality, which has also been recognized in case law as a fundamental right. This is similar to other legislation which prohibits discrimination and provides for a similar prohibition on discrimination on grounds of country of origin, and exposes suppliers who discriminate on this basis to a suit in tort. Likewise, under this law, a person’s point of view or political affiliation are not a legitimate basis for discrimination in the supply of services or products. In other words, to a certain extent the law prohibiting discrimination defines an even broader basis of discrimination than the Boycott Law. For this reason, the court ruled that since the Boycott Law also promotes a worthy cause of equality by being intended, inter alia, to prevent prohibited discrimination – a purpose which is established in other legislation of Israel, as well as in the legislation of many other countries, the law under review also meets this condition of the limitation clause. With respect to the fourth condition in the limitation clause – the infringement of the right being “proportionate”, Justice Melcer, who wrote the majority opinion, believed this condition is not fulfilled: The subtest of rational connection: This test requires a possible causal relation between the worthy cause and the means chosen by the law to promote such cause. The purpose of the legislation is, first and foremost, to have a “chilling effect” on anyone calling for a boycott against Israel. The sanction ultimately determined in the law is a sanction in tort, and one of the purposes of the law of tort is to create deterrence. It therefore appears that the law meets this subtest, since this purpose is clearly promoted by the law, whose arrangements are designed to discourage those who call for a boycott on the State of Israel, and incentivize them not to do so; The subtest of the means of lesser harm: This test shows whether the means chosen by the legislature is the means whose infringement of human rights is relatively lesser, compared with the other options that were available thereto. As aforesaid, the purposes promoted by the

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boycott against a region clearly lies within the boundaries of legitimate democratic discourse. Justice Danziger recalled that freedom of expression is a constitutional right which had enjoyed judicial protection even before enactment of the Basic Laws, since the very early days of the development of constitutional law in Israel. It had been recognized by case law as a precondition for the exercise of virtually all other liberties. After the enactment of the Basic Law: Human Dignity and Liberty, freedom of expression was elevated to the status of a constitutional human right. The importance of freedom of expression is indicated by its three main underlying purposes: First, discovery of the truth, since “sunlight is the best disinfectant”; Second, freedom of expression is involved in individual autonomy and self-realization; Third, freedom of expression is a condition for the free flow of information. These significant purposes shape its reach and, as derived therefrom, the depth of its protection, in the sense that limiting freedom of expression is rarely done thoughtfully. Justice Danziger further ruled that the Boycott Law passed the first subtest of proportionality – the test of rational connection – since the purpose of the law was to prevent harm to the State of Israel through boycotts. The Boycott Law also passed the second subtest of proportionality – the test of the means of lesser harm – since the petitioners did not indicate any alternative means which could achieve the same degree of protection of the purpose (preventing harm to the state through boycott) with lesser infringement on freedom of political expression. Justice Danziger agreed with the majority opinion that the Boycott Law met the first two tests of proportionality – the test of rational connection and the test of the means of lesser harm. However, unlike the majority opinion, Justice Danziger did not see boycotts only as a means of coercion, but also as a legitimate means of expression, which may attest to the seriousness of the expression. In his opinion, boycotts reflect readiness to perform an act or refrain from carrying out an act that are intended to lead

law are to protect the state and its values, equality, and civil liberties. Hence, in order to avoid infringing on freedom of expression as much as possible, the said restriction needs to be made only to the extent required to counter the potential damage from a boycott, which harms the said purposes. The law must therefore not have an exaggerated “chilling effect” on freedom of political expression as such, i. e., to an extent not required to prevent the harm to the said purposes. Do the means included in the law meet this requirement? To answer this question, it is necessary to narrowly interpret the sections of the law such that the “tort of boycott” would only be established subject to (1) the existence of damage; (2) the existence of a causal relation between the tort and the damage, i. e. potential causal relation alone is insufficient, and awareness of a reasonable possibility that the content of the call and the circumstances of its public announcement would lead to the imposition of a boycott, is also required; and (3) giving a right of action only to the party directly impacted by the tort. Based on the above, the court set aside Section 2(c) which concerns compensation that is not dependent on damage (and which ought to be classified as “punitive damages”) and which is not capped by any amount. Therefore, it does not meet the second subtest of the means of lesser harm, and should therefore be cancelled.

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to nonviolent political change. Therefore, rejection of calls for boycott does not meet the third subtest – proportionality in the narrow sense. A public call for a boycott may be made due to several motives: commercial, consumer or political. This case concerns political-ideological boycotts, which are consistent with the key purposes of free speech, since they have the potential to enrich the market of opinions. The Boycott Law was born from calls by various organizations not to buy services or products from Israeli businesses beyond the Green Line. It would not be farfetched to say that the dispute surrounding the territories of Judea and Samaria is the most disputed political issue in Israel, and has been a key topic in Israeli public discourse since 1967. The call for boycotts with the aim of expressing discontent with the government’s policy in these territories, by avoiding supporting this policy or convincing others to object to the policy, is clearly a political expression which is protected by the freedom of political speech, and is worthy of the full protection afforded to political speech. The difficulty created by the Boycott Law is limited to calls for boycotts of persons or entities due to their connection to the territory. In the Israeli reality, the denial of calls for boycotts of this type on the Judea and Samaria territories is reserved for only one side of the political map. This gives rise to the concern that it breaches neutrality in the market of opinions, since it discriminates based on viewpoints, thus giving an advantage to one side of the political map, forcing only one side to play in the political field according to the rules determined by the other side. Also Section 3 of the law, which prevents participation in tenders and limits the receipt of benefits is improper discrimination on political grounds, because once the state chooses to support a certain type of activity, it must do so according to the rules of administrative law. In this context it is required to apply relevant considerations based on the substance of the supported activity, rather than the support recipient.17 That said, the Boycott Law does have important purposes, since the state has a right to defend itself against those seeking to attack it. Calls to boycott the State of Israel, irrespective of the caller’s objectives and characteristics, is a severe phenomenon that the state should not accept. Therefore, Justice Danziger believed that the state may have a justified interest in limiting such calls, and that interest may be based on the principle of defensive democracy. Ultimately, Justice Danziger distinguished between sanctions under the Boycott Law which arise from boycotting the State of Israel, and boycotting the territories beyond the Green Line. Whilst there is certain justification for infringing on the freedom of speech of anyone calling to boycott the State of Israel as a whole, a distinction should be drawn between such persons and those calling only for a boycott of the territories. 17 HCJ 11585/05 The Israel Movement for Reform and Progressive Judaism v. The Ministry of Aliyah and Integration, paragraph 11 (Nevo, 19 May 2009).

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On that basis, Justice Danziger proposed an inventive interpretation, which resolves the prima facie inconsistency between the law and the constitutional norm, without employing the ultimate weapon of full or partial nullification. Justice Danziger proposed that only calls for a “boycott of the State of Israel” would subject the callers to sanctions in tort or administrative law: … to fall under the law, the boycott is required to be due to “his or its connection” to the State of Israel, to any of its institutions or to an area under its control. The relationship between “the State of Israel” and the institutions and territories mentioned in the definition in Section 1 is that of belonging. For a boycott of a person due to his connection to an institution to fall under the law, the institution is required to be “a state institution”. For a boycott of a person due to his connection to a territory to fall under this definition, the territory is required to be “under state control”. To my mind, this belonging of the “institution” or “territory” to the State of Israel cannot remain merely technical. This requirement must be filled with normative meaning. The requirement of belonging needs to make a relevant connection between the boycott of “the State of Israel” and the boycott of the institution or territory. Its effect is to expand the scope of belonging, to extend also to the relationship between the boycott of the state and the boycott of the institution or the territory. Hence, not every boycotting of an institution or territory which physically “belong” to the state would fall under the definition in the law. Only the boycotting of an institution or territory due to the boycotting of the State on the whole, should fall under this definition …18

Justice Danziger deems this interpretation, which draws a distinction between a call for a boycott of a person due to his connection to the State of Israel or any of its institutions, and a call for a boycott of a person due to his connection to a territory under state control, is consistent with the language of the law and the purpose of the law, and is appropriate in the circumstances, without ordering the nullification of any of the law’s provisions.

VIII. A Few Comments of my Own: Severance, Reading Down and the Outcome of the Judgment Once Justice Danziger reached the conclusion that the provisions of the Boycott Law severely and fundamentally infringe freedom of speech, and as he believed that the provisions of the law were inconsistent with the conditions of the Limitation Clause, he was faced with three possibilities: 1) set aside the Boycott Law; 2) set aside the unconstitutional part of the Boycott Law and leave its constitutional provisions in place (applying the “blue pencil rule”); and 3) apply a narrow interpretation to the Boycott Law (narrower than according to its literal meaning – a technique known as ‘reading down’) in order to render it constitutional. Indeed, setting aside the Boycott Law as a whole is a dramatic step and should be avoided so long as some of its provisions can be rendered constitutional. Setting aside 18

Judge Danziger, paragraph 45.

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only part of the law is possible only where the law is severable, i. e., where setting aside the tainted provisions of the law would leave in effect its constitutional provisions which – standing alone – would fulfill the dominant purpose of the law. It is thereby possible to fulfill the purpose of the law through partial setting-aside of its unconstitutional provisions. This outcome is most certainly preferable to setting aside the entire law, as the intervention in the unconstitutional law is minimal. Severance changes the text and constitutes external intervention in the text. A third way to make the law constitutional is through a narrower interpretation – reading down. Reading down gives the text an interpretation that does not include its prima facie unconstitutional aspects. The interpretation does not change the text and constitutes internal intervention in the text: it interprets the text narrowly, less broadly than appears from a first reading of the text; it narrows it from within. However, reading down is not classified under the accepted methods of “interpretation”, but rather constitutes a less invasive constitutional remedy: it gives the text an interpretation which is “not natural”, in order to achieve the desired outcome without external intervention in the text. In this sense, reading down stretches the limits of “interpretation” without exceeding them completely.19 Justice Danziger’s reading down ‘omits’, in fact, the words “or an area under its control” from the text since, to his mind, calling for a boycott of a person or body due to his connection to an area “under the control of” the State of Israel does not fall under the prohibition in the law, unless the call for the boycott is aimed against the State of Israel itself. One judge on the panel judges, Justice Amit, believed that this outcome could not be achieved through reading down: I believe that the interpretation proposed by my colleague [Justice Danziger, A.K.] exceeds a simple reading of the text … My colleague agrees that the State is allowed to defend itself against boycotts against it, but behind the State there are entities, institutions and people. According to my colleague, a public call to boycott a certain bank because it has a branch in the territory, or calling for the boycott of a university in Israel because it conducted a scientific experiment in the territory, or because its faculty did not show sufficient solidarity with universities in the territory, would not fall under the tort. This outcome voids the tort of any content.20

Justice Vogelman too believed that it was not possible to reach this outcome by way of interpretation, but rather that the “blue pencil rule” should be applied to omit the words “or an area under its control” from the text. Justice Vogelman explained: My colleague [Justice Danziger, A.K.] proposes that we read the law such that ‘only a boycott of an ‘institution’ or ‘area’ which is part of a boycott of the State of Israel, and arises from their belonging to the State of Israel, fall under the boycott law. Conversely, a boycott of 19 20

See Barak, Interpretation in Law: Constitutional Interpretation, pp. 735 – 737. Judge Amit, paragraph 48.

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Aside from the question of whether the interpretation chosen by Justice Danziger exceeds the boundaries of a legitimate reading down, it is interesting to compare it with Justice Danziger approach to interpretation in contract law. In this area, Justice Danziger’s position was unique and consistent: Where the language of the agreement is clear and unequivocal … it should be given decisive weight in the interpretation of the agreement22

And – Since the court does not create contracts but interprets them, so long as the language of the contract is clear, then it reflects the parties’ intentions and should therefore be given decisive weight in its interpretation, and the contract given the simple and clear meaning arising from its language.23

And – There is an evidentiary presumption that the language of the contract reflects its purpose and the parties’ common intentions … This presumption is rebuttable only in irregular cases … The interpretation of a contract always begins with the language of the contract, and an endless see-saw from the language to the reasons and back – is prohibited.24

This difference between Justice Danziger’s approach to contractual interpretation and his judgment on the Boycott Law illustrates the difference between the subject matters. In the interpretation of contracts, the parties’ intention is far more significant than in the interpretation of constitutional laws. Like wills, contracts are intended to fulfill the parties’ intentions.25 Therefore, the parties’ intentions have decisive weight in determining the purpose of the contract. According to Justice Danziger, the parties’ intention is expressed in the literal language of the contract. This is not the case with laws in general, and laws of a constitutional nature in particular. These are not designed to govern the affairs of their makers, but rather “to impose certain values on planes of space and time”.26 Therefore, Justice Danziger was able and entitled to apply inventive interpretation, which moves away from the literal meaning of the 21

Judge Vogelman, paragraph 8. CA 5856/06 Levy v. Norkeit Ltd (Nevo 28. 1. 2008), paragraph 27. 23 CA 8836/87 Balmoral Investment ltd. v. Cohen (Nevo 23. 2. 2010), paragraph 25, 35. 24 Danziger/Matzkin, Do the Parties Regain Control Over Their Contract Following the Amendment Number 2 to Contract Law (General Section), Law and Business 15 (2012), pp. 86 – 87. 25 Barak, Interpretation in Law: General Theory of Interpretation, pp. 377 – 378. 26 Barak, Interpretation in Law: General Theory of Interpretation, pp. 377 – 378. 22

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language of the Boycott Law, and choose an interpretation that narrows its applicability. These contrary attitudes of Justice Danziger himself exemplify the vast interpretational spectrum of his approach to different areas of the law. More importantly, it appears that the purpose of the Boycott Law was actually to protect against the most common type of boycott – the boycott of an entity due to its connection to “an area under control”. Also the phrase “any of its institutions” aims at “any of its institutions” which has a connection to “an area under its control”. Thus, for example, the typical calls for boycott have been directed at products manufactured or distributed in the occupied territories or against institutions located therein (such as Ariel University). In other words, while the Boycott Law was intended primarily to defend against the boycott of a person or institution located in or having a connection to the occupied territories – as distinguished from a boycott of the State of Israel as such – Justice Danziger’s reading down completely transformed its meaning: from a boycott related to the territories to a boycott related to the State of Israel. This transformation illustrates how far-reaching Justice Danziger’s approach is – a narrow interpretation that goes even further than setting aside that part of the law (precisely because it does not intervene in the actual language). However, from this perspective, not only does reading down seem to be a questionable remedy but so also does severance: if the dominant purpose of the law cannot be fulfilled, there is no escape from setting it aside as a whole. Ultimately, Justice Danziger’s reading down approach played a critical role in the dilution of the Boycott Law by rendering it, in practice, a dead letter in Israel’s Book of Statutes. Since the typical calls for boycott are due to a linkage to “an area under its control”, ‘omitting’ these words through reading down has left the law toothless. Indeed, since the judgement was issued, the Boycott Law seems to have lost any practical significance.27

Bibliography Barak, Aharon: Interpretation in Law: General Theory of Interpretation, Vol. I, Israel 1992. Barak, Aharon: “Human Dignity”, Hamishpat – The College of Management Law Review Vol. 7, 2002 (5762), pp. 517 – 521. Barak, Aharon: Interpretation in Law: Constitutional Interpretation, Vol. 3, Jerusalem 1994 (5754). 27

There are only two documented cases in which an attempt was made to conduct proceedings under the Boycott Law. One case was withdrawn by the plaintiffs (with an award of costs to the defendants); see C.C. (Nazareth) 33745-06-19 Energix Renewable Energies Ltd. v. Al-Marsad – The Arab Center for Human Rights in the Golan Heights (Nevo, 2 August 2020); CA (District Court) 43007-05120 Energix Renewable Energies Ltd. v. Abu Jabel (Nevo, 28 January 2021). Another case was filed as a derivative action against DexIa bank as a lender and was settled by way of declaration of the bank with no monetary award; DA (TA) 1422410-14 Shenhav v. Dexia Bank (Nevo 6. 6. 2016), paragraph. 6.

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Danziger/Matzkin, Zvi: Do the Parties Regain Control Over Their Contract Following the Amendment Number 2 to Contract Law (General Section) 1973, Law and Business Vol. 15, 2012, pp. 27 – 87.

Is Islamic Shariah Law Applicable under German Constitutional Law? [Revised lecture originally presented at the conference “Islam and Law” on 2. 3. 2018, hosted by the State Parliament of Rhineland-Palatinate, original version published in German in 2020] By Karl Kreuzer*

I. Introduction Germany has neither state-recognised religious courts nor state-recognised religious law. However, the German courts do have contact with religious courts and religious law in some cases involving foreign countries, for example where German conflict-of-law rules refer to foreign state-recognised religious law or the German judicial system recognises a decision by a foreign state-recognised religious court. This situation is also the case in Israel, which, as is well known, follows the Ottoman so-called Millet system for historical reasons. According to this system, some areas of law relating to persons, especially family law (personal status, especially marriage), are not subject to state law, but to the respective laws of the 14 religious communities recognised in Israel. The most important religious communities in Israel are (Orthodox) Judaism, Islam and Christian churches. The following remarks refer to members of the Islamic religious community in all states that follow the Millet system (including Israel).

II. What is Sharia? 1. Sharia in the Traditional Sense In the literal (Arabic) sense, Sharia means the way to the watering hole, in the figurative sense, the way to Allah with the meaning of a religiously binding order of life for the followers of all monotheistic religions, i. e. Jews (Halacha), Christians (Holy

* Prof. em. Dr. iur. utr. habil. Karl Kreuzer held a chair of Comparative Law, Civil Law, Private International Law and Commercial Law at the University of Würzburg.

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Scripture, partly tradition, church orders) and Muslims (Islamic Sharia)1. This order of life (Sharia in the broadest sense), which is binding by divine decree, comprises ethical and ritual norms as well as legal provisions. In the present context, Sharia usually refers to Islamic Sharia law. However, there is neither a single Islamic Sharia law code nor a single Islamic Sharia nor a single Islamic Sharia law. Statements of law in Islamic Sharia, i. e. in the Qur’an and in the Sunna (words and deeds of Muhammad; the prophetic tradition) handed down in the so-called hadiths (“reports of his companions”) are relatively rare. Thus, of the 6238 Koran verses – depending on how they are counted – only 80 to 220 can be qualified as so-called legal verses2. Only these legal verses have been understood as legally binding, i. e. as norms backed by state coercion; however, these legal verses often resemble an abstract regulatory principle rather than a concrete provision with facts and legal consequences, and they also frequently refer to concrete questions rather than abstract facts. Reasons are completely absent from the legal verses; it is God’s word, that suffices. The few legal verses and the sparse, reliably handed down legal hadiths are obviously not sufficient for constituting a legal order of life. This task has been taken on by the major Sunni and Shiite schools of law, albeit with partly differing results. In other words, there is neither a uniform Shari’a nor a uniform Islamic Shari’a law, but only Shari’a laws specific to the schools of law, e. g. the Shi’a 12 Shari’a in Iran or the Hanafi Shari’a in the former Ottoman Empire and its successor states, i. e. also in Israel. Traditional Sharia is therefore neither a transnational (all-Islamic) code of law, such as the Codex iuris canonici for the Roman Catholic Church, nor judge-made law, but originally the work of Sharia law scholars of a particular school of law (ulama law, Sharia law scholars’ law, Sharia law school law) created on the basis of revealed law, similar to the Common law still in force in large parts of Germany until the German Civil Code came into force in 1900. 2. State Reception of Sharia Law: Referral and/or Codification Since the emergence of modern states, Sharia law, which is specific to each school of law, no longer “applies” by virtue of divine order, but only by virtue of its reception in state law. In many Islamic states (hereinafter referred to as “Sharia states”), this reception usually takes place in the constitution, which declares the Sharia to be the only3, the main4, a main5 or a (further) source of law6. Probably only the

1 Cf. Art. 3 Constitution Egypt (2013): “The principles of Christian and Jewish Sharia of Egyptian Christians and Jews are the main source of legislations that regulate their respective personal status […]”. 2 That means that only every 78th or 28th verse is a verse on law. Of 220 legal verses, 70 concern family and inheritance law, 62 other civil law, 30 criminal law, 13 procedural law, 10 constitutional law, 10 economics and finance, 25 international law. 3 Cf. e. g. Art. 23 Constitution Saudi-Arabia (1992): “The State protects Islam; it implements its Shari’ah; […]”.

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Saudi Arabian constitution refers generally to the Sharia as a source of law without codifying it into state law (exclusive referral-reception)7. Other Sharia states frequently concretise their general constitutional reference to the Sharia as a source of law in the form of subject-specific codifications, i. e. in state laws that adopt the Sharia law more or less unchanged – generally according to the interpretation of the “prevailing” school of law in the state in question. The constitutional8 or simple-law referral9 to the Sharia then usually only serves as a subsidiary source of law, i. e. to fill gaps (subsidiary referral-reception). The result is: the (uniform) Sharia or the (uniform) Sharia law did not and does not exist in the Islamic world. In the past, Sharia law existed only “in the version” of one of the Islamic (Sunni/Shiite) faiths or schools of law. Today, Sharia law only exists as state law, usually in the form of codified receptions combined with (subsidiary) referral-receptions to the unwritten national (law school-specific) Sharia law. 3. Sharia Law as Foreign Law Incompatible with the Basic Law Which Sharia-influenced foreign law would be considered incompatible with our constitution “under the Basic Law” (GG), i. e. when it is being applied or is being recognized within the range of application of the Basic Law? Such a conclusion would be especially possible for Sharia criminal law as well as Sharia family and inheritance law. Sharia criminal law and criminal procedure law contain obviously discriminatory provisions against women and numerous ill-defined offences as well as barbaric punishments (especially corporal punishment, including stoning). Islamic family and inheritance law is characterised by many forms of discrimination against women and non-Muslims; the discriminatory provisions are confirmed by the reservations of Sharia states to protective provisions in human rights conventions10. From 4 Art. 2 Constitution Egypt (2013): “[…] The principles of Islamic Shari’ah are the main source of legislation”. 5 E. g. Art. 3 Constitution Syria (1973/2012): “[…] Islamic jurisprudence shall be a major source of legislation”. 6 E. g. Art. 2 Constitution Iraq (2005): “(1) Islam is the official religion of the State and is a foundation source of legislation […]”. 7 Cf. e. g. Art. 23 Constitution Saudi-Arabia (1992): “The State protects Islam; it implements its Shari’ah; […]”. 8 Art. 2 Constitution Egypt (2013): “[…] The principles of Islamic Shari’ah are the main source of legislation”. 9 E. g. Art. 305 Syrian Personal Status Law (PSL 1953/1975/2003/2010): “All that has not been answered in this law is due to the most likely saying in the Hanafi sect”; Maroc: Art. 400 Code de la famille (2004/2016): “Pour tout ce qui n’a pas été expressément énoncé dans le présent Code, il y a lieu de se référer aux prescriptions du Rite Malékite et/ou aux conclusions de l’effort jurisprudentiel (Ijtihad), aux fins de donner leur expression concrète aux valeurs de justice, d’égalité et de coexistence harmonieuse dans la vie commune, que prône l’Islam”. 10 Cf. e. g. Syria’s numerous reservations (“[…] inasmuch as this provision is incompatible with the provisions of the Islamic sharia”) concerning the Convention on the Elimination of All

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the perspective of the German Basic Law, this is particularly about incompatibility with the fundamental rights contained in Articles 3, 4 and 5 of the Basic Law. Examples are impediments to mixed marriages, inheritance obstacles in cases of diverse faiths, polygamy in the form of polygyny, male guardianship over women, and women’s duty of obedience to their husbands, furthermore male primacy in parental care decisions, talak (the husband’s unilateral right of disavowal of marriage) and discrimination against female legal heirs. Does such Sharia law apply under German constitutional law?

III. Does Sharia Law Apply under German Constitutional Law? 1. What Does “Applicability” Mean under the Basic Law? A terminological clarification first: A legal norm “applies” in the normative, not factual-sociological sense “under the Basic Law” (i. e. in Germany) only if it was enacted by a constitutionally legitimised body in a constitutionally compliant manner (i. e. formally and materially flawless) and thus has binding force for the addressees. Only in this case must a legal norm be applied per se by all addressees bound by the constitution, in particular by state authorities and by the courts. Since neither religious rules as such nor religious norms enacted or received by a foreign state – e. g. Israeli Sharia law – fulfil this requirement, they do not apply “under the Basic Law”. This is not altered by the fact that the Sharia law scholars of most Islamic schools of law consider Muslims to be obliged to observe Islamic law in non-Muslim states as well. They understand Sharia law as divine law that stands above state law. This also explains the illegal “Sharia courts” existing in non-Islamic countries. Only according to the Hanafi school of law are Muslims in non-Muslim countries not subject to Islamic law, but to the applicable local law.11 Foreign norms with religious content do not apply per se in Germany, but they are applicable here if and insofar as the German parliament orders their application (conflict-of-laws order). In other words, only constitutional domestic norms “apply”, foreign norms – regardless of whether they have religious or other content – do not apply domestically, but are applicable if a domestic conflict-of-law rule so orders. Foreign law – whether Sharia-based or not – therefore never applies domestically, but is at best applicable here by virtue of the German legislature’s order to apply the foreign law.

Forms of Discrimination against Women (CEDAW), especially Art. 2 CEDAW (general condemnation of discrimination against women in all its forms), furthermore. Art. 9 (2), Art. 15 (4), Art. 16 (1) (c), (d), (f), (g), Art. 16 (2) CEDAW. 11 Cf. e. g. Khoury, in: Khoury/Heine/Oebbecke, Handbuch, Recht und Kultur des Islams in der deutschen Gesellschaft (2000), p. 281 et seq.

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2. Criminal Law and Other Public Law According to what has just been said, criminal law or other public law of a foreign state never applies domestically per se. However, it is also not applicable, because there are no corresponding application orders from the domestic legislature. Therefore, the question does not arise whether constitutional provisions would prevent the application of such foreign norms. In criminal law and other public law, the domestic courts/authorities always apply their own law, the lex fori. 3. Family Law and Law of Inheritance In contrast, the situation is different in civil law, especially in family law and inheritance law. There, the question of the applicable law arises for the German judges in every situation that raises issues crossing national borders or jurisdictions. a) Applicability of German Substantive Law by Virtue of a General Connection to the German Place of Habitual Residence: Lex Domicilii The question of the domestic application of foreign Sharia law does not arise if a German conflict-of-law rule subjects the transnational facts to the law applicable at the place of residence or domicile of specific parties (lex domicilii) and this connecting factor is located in Germany. In sharp contrast to the legal situation when the Civil Code came into force in 1900, when the lex patriae prevailed, the connection to habitual residence is now being made more and more frequently, especially in matters critical of fundamental rights: namely for maintenance claims12, matrimonial property law13, descent14, parent-child relationships15, divorce16 and legal succession17. If, in one of these cases, the habitual residence is in the territorial scope of application of the Basic Law, German substantive law and not Sharia law is also applicable to situations with contact to Sharia states. 12 Art. 15 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 7/1. 13 Art. 26 Council Regulation (EU) No 1103/2016 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ L 183/16. 14 Art. 19 IACC. 15 Art. 21 IACC. 16 Art. 10 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 343/10. 17 Art. 21 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ L 201/107.

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b) Applicability of (Foreign) Sharia Law by Virtue of Linkage to Foreign Nationality: Lex Patriae As already indicated, the original version of the conflict of laws (Internationales Privatrecht – IPR) in the EGBGB (Einführungsgesetz zum BGB; Introductory Act to the Civil Code – IACC) of 1896/1900 had subordinated personal matters, in particular family and inheritance law, exclusively to the law of the state of which the person concerned was a national, i. e. the so-called lex patriae. Today, this is only the case in the following areas of law: Legal capacity18 and capacity to contract, names19, conditions for the conclusion of marriage20 (e. g. age at marriage), general effects of marriage21, adoption22 as well as guardianship, care and custody23. Some EU conflict-oflaw rules applicable in Germany also refer to the lex patriae law of one party24 or all of the parties25. In all these cases, therefore, Sharia-influenced foreign home law is in principle also applicable in Germany. However, the applicability of the foreign Sharia lex patriae that is invoked by the German territorial law of application is excluded insofar as an exclusive unilateral German conflict-of-law rule displaces the all-round rule-of-law conflict-of-law rule and compulsorily invokes German substantive law (c) aa) below) or the general reservation clause of German public policy (Art. 6 IACC) applies (c) bb) below). 4. Exceptions to the Applicability of the Lex Patriae a) Exclusive Applicability of German Substantive Law by Virtue of Unilateral Conflict-of-Law Rules: Lex Fori In modern conflict of laws, all-sided rules of application of the law are the rule; they use connecting elements which – such as nationality or habitual residence – can designate the domestic or a foreign legal system as decisive. In contrast, do exist the 18

Art. 7 (1) IACC. Art. 10 (1) IACC. 20 Art. 13 (1) IACC. 21 Art. 14 (1) IACC. 22 Art. 22 IACC. Adoption is unkown in Islamic Law. 23 Art. 24 IACC. 24 Cf. Art. 22 No 1 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ L 201/107. 25 Cf. Art. 12 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 343/10; Art. 22 (1) b) Council Regulation (EU) No 1103/2016 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ L 183/16. 19

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unilateral conflict-of-law rules – which only occur in exceptional cases – which declare domestic law exclusively applicable. If an unilateral conflict-of-law rule exists in the same area as an all-sided rule – for example, in family and inheritance law – the unilateral conflict-of-law rule supersedes the all-sided conflict-of-law rule. Such unilateral conflict-of-law rules concern situations that cross legal borders, for which the domestic legislature wants to enforce the applicability of its own law in any case. Such special conflict-of-law rules are usually intended to protect the interests of the domestic community as a whole, but sometimes also to protect individuals26. Some of these special conflict-of-law rules have the character of special reservation clauses which concretise the general reservation clause (Art. 6 IACC) for situations which the German legislature, for reasons of protecting its own essential legal principles or interests of order, wants to subject to German substantive law from the outset – without examining individual cases – (unilateral conflict-of-law rule with Ordre public character). The German legislature has enacted such unilateral conflict-of-law rules precisely in the areas of law of interest in our: • Art. 13 (2) no 3 IACC27 , which enforces the fundamental right of freedom of marriage (Art. 6 (1) Basic Law) among other things, against religious obstacles to marriage; • Art. 13 (3) IACC28 , which was recently introduced by the Act in order to prevent child marriage of 17 July 2017, which, for reasons of child protection, in effect orders the universal applicability of German law provisions on marriageability; • Art. 13 (4) p. 1 IACC29 and Art. 17 (3) IACC30 , which, in the interest of legal clarity, stipulate the mandatory domestic form for domestic marriages and the German court monopoly on domestic divorces and thus prevent the legal validity of domestic marriages under Sharia law (“imam marriages”) or private divorces (talak);

26 E. g. Art. 9 phrase 2 IACC (declaration of death); Art. 10 (2) IACC (choice of name); Art. 23 S. 2 IACC (consent of a child). 27 Art. 13 (2) IACC: “If under this law, a requirement is not fulfilled, German law shall apply to that extent, if: 3. it is incompatible with the freedom of marriage to refuse the conclusion of the marriage; in particular, the previous marriage of a person engaged to be married shall not be held against him or her if it is nullified by a decision issued or recognized here or the spouse of the person engaged to be married has been declared dead”. 28 Art. 13 (3) IACC reads as follows: “If the nubility of a person engaged to be married is governed, according to paragraph 1 (law of nationality), by foreign law, the marriage is, according to German law, 1. invalid, if the person engaged to be married has not completed his or her 16th year at the time when the marriage was celebrated, and, 2. voidable, if the person engaged to be married has completed his or her 16th, but not completed his or her 18th year at the time when the marriage was celebrated”. 29 Art. 13 (4) phrase 1 IACC reads as follows: “A marriage within the country may only be celebrated subject to the form provided for here”. 30 Art. 17 (3) IACC reads as follows: “Within the country a divorce may only be decreed by a court”.

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• Art. 17 (4) IACC (equalisation of pension rights); • Art. 17a IACC31 (marital home and household effects); • Art. 10 Council Regulation (EU) No 1259/201032 which excludes the applicability of the home law chosen by the spouses as the divorce statute pursuant to Art. 5 (1) c) Council Regulation (EU) No 1259/2010 in favour of the lex fori if the chosen statute does not provide equal access to divorce, e. g. in the case of talak.

b) Inapplicability of (Foreign) Sharia Law by Virtue of Reservation Clause (Public Policy: Art. 6 IACC) In cases where a German conflict-of-law rule or a party33 invokes foreign Sharia law, this is not to be applied “where its application would lead to a result which is manifestly incompatible with the fundamental principles of German law. In particular, inapplicability ensues, if its application would be incompatible with civil rights”34. The result of the application of a foreign Sharia norm invoked by German conflict-of-law is thus to be measured in particular against the yardstick of fundamental rights. If the German judge finds that the application of the invoked Sharia norm would violate the German ordre public, he must not apply it. In particular, this is always the case if the application of the foreign Sharia law by the German judge would lead to a violation of fundamental rights. In such a case, the German judge must first try to find a result compatible with the German Ordre public within the framework of 31

Art. 17a IACC “Prohibitions as to trespass, approaching and contact pertaining to the marital home that is located within the country are governed by German substantive law”. 32 Art. 10 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 343/10, reads: “Application of the law of the forum. Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply”. 33 Cf. Art. 22 No. 1 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ L 201/107; Art. 22 (1) b) Council Regulation (EU) No 1103/2016 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ L 183/16. 34 Art. 6 IACC; see also: Art. 12 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 343/10; Art. 35 Art. 21 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ L 201/107; Art. 31 Council Regulation (EU) No 1103/2016 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ L 183/16.

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the applicable foreign law, e. g. to place a wife discriminated against under Sharia law on an equal footing with her husband or simply not to apply a norm contrary to fundamental rights, e. g. to negate a foreign Sharia norm that obliges a wife to obey her husband. Only if a solution compatible with fundamental rights is not possible within the framework of the applicable foreign law, must the judge apply the relevant German law as a substitute. 5. Special Conflict Rules for Refugees There are no general conflict-of-law rules for refugees in Germany. a) Convention Refugees and Persons Entitled to Asylum For political refugees recognised in Germany (Art. 16a Basic Law35) as well as for refugees entitled to protection under Art. 1 of the (Geneva) Convention relating to the status of refugees 195136 or s. 3 (1) Asylum Act37, the lex domicilii or the law of the place of residence is generally applicable38. Accordingly, in the cases of refugees who have domicile, habitual residence or simple residence in Germany, German law is applicable even though, under ordinary German choice of law rules, a Sharia-influenced lex patriae would be applicable.

35

Art. 16a German Basic Law: “(1) Persons persecuted on political grounds shall have the right of asylum”. 36 Art. 1 A (2) GRC and Art. 1 Protocol (thereto) relating to the Status of Refugees (1967). 37 Sec. 3 Asylum Act (Recognition of refugee status) “(1) A foreigner is a refugee as defined in the Convention of 28 July 1951 on the legal status of refugees […] if he, 1. owing to well-founded fear of persecution in his country of origin on account of his race, religion, nationality, political opinion or membership of a particular social group, 2. resides outside the country (country of origin) a) whose nationality he possesses and the protection of which he cannot, or, owing to such fear does not want to avail himself of, or b) where he used to have his habitual residence as a stateless person and where he cannot, or, owing to said fear, does not want to return”. 38 Art. 12 GRC – “Personal status – (1) The personal status of a refugee [definition in Art. 1 Refugee Convention] shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence. (2) Rights previously acquired by a refugee and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities required by the law of that State, provided that the right in question is one which would have been recognized by the law of that State had he not become a refugee”; Sec. 2 (1) Asylum Act.

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b) There Exist no Special Rules for Persons Entitled to Subsidiary Protection For refugees of all origins who are entitled to subsidiary protection (see 4 Asylum Act39), the special conflict-of-law provisions described in section aa) do not apply. Accordingly, these refugees receive the same conflict-of-laws treatment in Germany as normal non-refugee foreigners and are thus subject to the (Sharia) law of the state from which they fled, if applicable, where reference to nationality is made. For these persons, the German judge must therefore examine in each individual case whether a solution compatible with the German Ordre public is possible within the framework of the foreign Sharia law or whether German law must be applied as a substitute law (German lex fori). c) Inadequacy of the Inconsistent Determination of Personal Status Provisions for Refugees in German Conflict of Laws The differing determinations of the law applicable to personal legal relationships for Convention refugees (Art. 1 Geneva Refugee Convention 1951 – GRC) and persons entitled to asylum (Art. 16a (1) Basic Law), on the one hand, and for refugees entitled to subsidiary protection (§ 4 Asylum Act), on the other hand, is not justified in my opinion. The existing special regulation under conflict of laws for Convention refugees (Art. 12 GRC), which was already extended to persons entitled to asylum in s. 2 Asylum Act, should also apply to refugees with subsidiary protection. In other words, it seems appropriate to apply the law of domicile or the law of place of residence uniformly as the determinative criterium to all categories of refugees. All these groups of refugees have left their home countries for the same or equally valid reasons, namely ultimately because of (individual or collective) violations of human rights. This similarity of the interests of the refugee groups alone should preclude different treatment under conflict-of-law rules. Basically, this is an unintentional loophole in the law, because the narrow definition of refugee in the Geneva Refugee Convention (Art. 1 A GRC) could not cover the group of refugees who were only given (subsidiary) protection by the later Qualification Directive40. The 39

Sec. 4 Asylum Act. “Subsidiary protection – (1) A foreigner shall be eligible for subsidiary protection if he has shown substantial grounds for believing that he would face a real risk of suffering serious harm in his country of origin. Serious harm consists of: 1. death penalty or execution, 2. torture or inhuman or degrading treatment or punishment, or 3. serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. (2) A foreigner shall not be eligible for subsidiary protection pursuant to subsection 1, if […]”. 40 Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304, – replaced by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ L 337/9.

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application of lex patriae to refugees with subsidiary protection status also violates the basic legal principle of private international law, according to which legal relationships are to be judged according to the law of the state with which the closest relationship exists. In the case of refugees, however, that is certainly not (or no longer) the legal system of the state from which they fled – often at imminent risk to their lives and with unspeakable deprivations. The Geneva Convention on Refugees has drawn the correct consequence from this situation and has determined that the law of the host country/country of residence is ultimately decisive for the personal circumstances of each – albeit still narrowly defined – refugee. Since the factual situation is the same for both groups of refugees and as they are also treated essentially the same under substantive law (see infra dd) (3)), their conflict-of-law status must also be the same. The reference to nationality is linked to the formation of nation states in the 19th century and the differentiation between emigration states and immigration states. However, as recent national, European and international legal developments show, this reference to nationality is largely outdated in terms of legal policy. Moreover, not a few former countries of emigration, such as Germany41, have since become countries of immigration. The application of the law of the host country (also) to refugees with subsidiary protection status is ultimately also supported by judicial economy. Linking the law to nationality would mean that in a large number of cases the German judge would have to determine the content of foreign Shariainfluenced legal systems, review the result of the application with regard to violations of public order and possibly find alternative solutions. It cannot be argued against this parity of all refugees under conflict of laws that the right of residence of refugees with subsidiary protection under aliens law is shorter than that of Convention refugees. For both groups of refugees there is a time limit on residence permits. The use of temporary residence permits is based on the consideration that the situation that caused the refugees to leave their home country will change so that a return to the home country will be possible. Experience shows, however, that most immigrants, whether they are Convention refugees or refugees with subsidiary protection status, remain in their host country permanently or at least for extended periods of time. Therefore, it makes no sense to distinguish between these two categories of refugees in terms of conflict of laws. And those refugees who ultimately return to their countries of origin are not wronged by the temporary assessment of their personal circumstances according to the law of the host state. After all, 41

Migration, immigration and emigration have a long history in Germany, spurred on in particular by the Reformation. Since the Second World War especially, millions of refugees and other immigrants have migrated to Germany, whether as a result of warlike events or repressive political developments in communist or fascist states, or for economic reasons. In the 1950s and 1960s, Germany recruited “guest workers” who were expected to return to their home country after a few years. In fact, a great many guest workers and their families stayed in Germany permanently. As a result, post-war Germany has been a country of immigration for more than two generations.

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this is a connection that has always been the general method used in many states, especially in Common Law jurisdictions. For these reasons, I see no justification for the different treatment of Convention refugees and refugees with subsidiary protection status under conflict of laws. How can equal treatment under conflict of laws be established for all refugees?

IV. Ways towards a Uniform Personal Status for Refugees 1. International Law It is conceivable to achieve a uniform personal status determination for all refugees on the basis of the Geneva Refugee Convention. In this way, the conflict-of-law rule of Art. 12 GRC could also be applied by analogy to persons who have subsidiary protection. However, every judge would be free to follow such a recommendation or not. Legal certainty cannot be achieved in this way. In contrast, a uniform, legally watertight solution could be achieved by expanding the definition of refugee in the Geneva Refugee Convention. For this purpose, it would be sufficient to insert a provision in Art. 1 A GRC, which defines the term “refugee”, which could be taken over mutatis mutandis from the definition of refugees with subsidiary protection found in Art. 2 (f) Directive 2011/95/EU.42 However, this seemingly insignificant technical legal addition to the definition of refugee would mean a significant extension of the scope of persons covered by the Refugee Convention. It would have to be adopted at a diplomatic conference and ratified by the States Parties. Since many states outside the EU are not familiar with subsidiary protection status, the chances of success for such a solution are not likely to be very great, quite apart from the unforeseeable duration of such a procedure. That is why this path would not promise high chances of success.

42 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ L 337/9: Art. 2 “Definitions – For the purposes of this Directive the following definitions shall apply: a) […] f) ‘person eligible for subsidiary protection’ means a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country […]”.

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2. National Law of EU-Member States For those EU Member States that generally subject personal legal relationships to the law of domicile or the law applicable to habitual residence, the problem of different conflict-of-law treatment of Convention refugees and refugees eligible for subsidiary protection does not arise.43 In contrast, some EU Member States with a lex patriae tradition have enacted special conflict-of-law rules for refugees. In Austria, for example, the following norm, which is regarded as exemplary, has been in force since 1978, long before the introduction of subsidiary protection status under European law (see 9 (3) PIL Act): “For a person who is a refugee within the meaning of the international conventions applicable to Austria or whose relations with his or her home state have been severed for comparably serious reasons, the applicable law is the law of the state in which he or she has his or her domicile or, in the absence of such a domicile, his or her habitual residence; references by said law to the law of the home state are inapplicable”. This provision undoubtedly also covers refugees with subsidiary protection status. After the adoption of (amended) Directive 2011/95/ EU44, some other Member States adopted similar special conflict rules that also cover refugees with subsidiary protection status: Poland45 , the Czech Republic46 and the

43 For example, in the Baltic states: Estonia (§§ 55 et seq. PIL-Law 2002); Latvia (§§ 8 et seq. Civil Code 1997) and Lithuania (Art. 1.27 et seq. [Marriage Law] Civil Code 2001); partly also Scandinavian states. On the situation in Sweden, which has entered a reservation to Art. 12(1) GRC but has a special Swedish provision for “political refugees”, see Bogdan, Refugees in Swedish private international law, in: J. Grimheden/R. Ring (eds.): Human rights law: From dissemination to application. Essays in honour of Göran Melander, p. 311 et seq. 44 Cf. Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304, – replaced by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ L 337/ 9. 45 Art. 3 PIL-Act of 4 February 2011: “Capacity and personal status of stateless persons and refugees – (1) If the statutory law provides that the law of a person’s nationality shall apply, and the nationality of this person cannot be determined, or this person is not a national of any country, or the content of his national law cannot be ascertained, then the law of the country of his place of domicile shall apply; in the absence of the place of domicile, the law of the place of his habitual residence shall apply. (2) Paragraph (1) shall accordingly apply to a person who was granted the protection in a country other than the country of his nationality due to the fact that his links with the country of nationality were broken because of violations of fundamental human rights in that latter country”. 46 § 28 (4) PIL-Act of 25 January 2012: “If someone is an applicant [has applied] for international protection, refugee or beneficiary of subsidiary protection or is homeless under other legislation or international agreement shall be governed by his personal status under the provisions of international agreements governing the legal status of the legal status of refugees and stateless persons”.

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Netherlands47. In contrast to these states, Germany and other EU member states determine the law applicable to refugees with subsidiary protection – in contrast to Convention refugees – according to general conflict-of-law rules, which are partly influenced by the principle of nationality and thus, in the case of Muslim refugees, in principle by their Sharia-based home country law. Since an analogous application of Art. 12 GRC is not a viable solution due to the legal uncertainty associated with its application, it is imperative to close the secondary legal loophole by legally extending the special conflict-of-law provision existing for convention refugees (Art. 12 GRC) so that it also applies to beneficiaries of subsidiary protection. In Germany, for example, this could be done by supplementing Art. 5 (2) IACC as follows: (2) If a person is stateless or his or her nationality cannot be established or if he or she is entitled to national or international protection (sections 2 – 4 Asylum Act), the law of the State in which he or she has his or her habitual residence or, in the absence of such residence, his or her residence, shall apply.48

For persons entitled to asylum (Art. 16a Basic Law, s. 2 Asylum Act) and convention refugees (s. 3 Asylum Act) such a norm would only be declaratory, for refugees with subsidiary protection status (s. 4 Asylum Act), however, it would be constitutive. However, in view of the frequency of inter-member state migration of refugees, autonomous member state rules only appear to be suitable as emergency solutions. The danger of divergent solutions is too great, as shown by the diversity of special conflict rules for refugees in the few cases where Member States have adopted such regulations. And it is unrealistic to assume that all EU Member States will spontaneously introduce consistent special conflict-of-law rules for refugees with subsidiary protection status. Nevertheless, Germany should amend Article 5 of the IACC as proposed, should a similar provision fail at the EU level.

47 Book 10, Art. 10:17 Civil Code (2012): “Civil status of aliens – 1. The civil status of an alien (foreigner) to whom a residence permit as meant in Article 28 or 33 of the Aliens Act 2000 is granted and of an alien (foreigner) who has obtained an according resident status in a foreign country, is governed by the law of the State where his domicile is located or, when he has no domicile, by the law of the State where his habitual residence is located. 2. The rights acquired by such alien (foreigner) in the past and which result from his civil status, in particular the rights resulting from marriage, shall be respected”. Under Dutch law, international protection beneficiaries (Convention refugees, subsidiary protection beneficiaries) receive residence permits. 48 Suggestions by the author are in italics.

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3. EU Law a) Lex lata: Equality of all Refugees under Substantive Law and Integration Law In terms of substantive law, it has long been a main objective of EU lawmakers to align both international protection status, i. e. that of beneficiaries of subsidiary protection, and that of Convention refugees49. Accordingly, the term ‘international protection’ as defined in Art. 2 (a) Directive 2011/95/EU includes both refugees within the meaning of the Geneva Convention as well as subsidiary protection status under Directive 2011/95/EU. Furthermore, according to Art. 20 (2) Directive 2011/95/EU, the substantive rules on international protection apply in principle both to refugees and to persons entitled to subsidiary protection50. In this context, Art. 34 of Directive 2011/95/EU is also relevant, according to which any integration measures cover all persons who have been granted international protection, i. e. also refugees with subsidiary protection status. Moreover, the Commission’s 2016 proposal51 for a Qualification Regulation even includes in its title the objective “for a uniform status for refugees or for persons eligible for subsidiary protection […]”. Accordingly, recital 1 of the proposed regulation states that one of the objectives of the regulation is to ensure equal treatment for all persons (“uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted”) who have been granted international protection. Furthermore, Art. 22 (1) of the proposal reads “Refugees and persons who have been granted subsidiary protection status shall have the rights and obligations laid down in this chapter”. In addition, recital 49 Cf. e. g. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ L 337/ 9, recital 39: “While responding to the call of the Stockholm Programme for the establishment of a uniform status for refugees or for persons eligible for subsidiary protection, and with the exception of derogations which are necessary and objectively justified, beneficiaries of subsidiary protection status should be granted the same rights and benefits as those enjoyed by refugees under this Directive, and should be subject to the same conditions of eligibility”. 50 In only a few areas are Member States allowed to treat convention refugees and refugees with subsidiary protection status differently, e. g. with regard to social assistance benefits and residence permits (Art. 29 resp. Art. 24 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ L 337/9). 51 Proposal for a regulation of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, COM/2016/0466 final.

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53 and Art. 38 of the proposal stipulate that beneficiaries of international protection shall have access to integration measures. As a result, it can be stated that both Directive 2011/95/EU and the Proposal for a corresponding Regulation aim to treat convention refugees and refugees with subsidiary protection status equally in terms of substantive law (including integration measures). Thus, it would seem sensible to supplement the integration-friendly substantive provisions with correspondingly integration-friendly conflict-of-laws rules that harmonise the divergent Member State provisions for determining the personal status of refugees, especially those with subsidiary protection status (lex patriae; lex domicilii; different special conflict-of-laws rules). This would be consistent in terms of legal policy. And in this way, intra-member state amendments of statutes and possibly associated difficulties could be avoided. b) Lex ferenda: Uniform Personal Status Provisions for all Refugees The simplest legal way to overcome the current fragmentation of the relevant conflict-of-law rules of EU Member States would be to completely replace the connecting element “nationality” with the connecting factor “habitual residence” or – alternatively – “simple residence”. This change would take into account the general tendency in legal policy towards the linking factor and also the fact that most EU Member States have de facto become immigration states rather than emigration states. However, it is unlikely that Member States with a long-standing lex patriae tradition in personal matters would accept such a radical solution. Already for reasons of simplifying the application of the law, however, an abandonment of the lex patriae connection in favour of habitual residence would be expectable, at least for refugees with subsidiary protection status. This would allow all refugees with protected status (persons entitled to asylum, convention refugees, refugees with subsidiary protection status) to be treated equally throughout the EU, not only in terms of substantive law, but also in terms of conflict of laws. Based on Art. 12 GRC, a corresponding special conflict rule under EU law could read: “The personal status of persons with national asylum status or international protection status in the sense of Art. 2 (a) Directive 2011/95/EU shall be governed by the law determined by Art. 12 (Geneva) Convention relating to the status of refugees 1951”.

The proposed special conflict rule is to be understood as the equivalent of the aforementioned substantive protection rules in Directive 2011/95/EU. Therefore, it ought to find its way into the regulation currently under consideration, if that regulation replaces Directive 2011/95/EU. Otherwise, it could be added to Directive 2011/95/EU. The scope of persons covered by the proposed (ancillary) conflict rule would include nationals of all third countries who have the status of beneficiary of protection in an EU Member State, i. e. beneficiaries of asylum, convention refugees and refugees with subsidiary protection status. Such a provision would only have a declaratory character for the EU Member States that refer to residence or hab-

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itual residence or – alternatively – simple residence for all persons or at least for persons entitled to asylum and for all refugees. In contrast, such a conflict-of-law rule would change the national conflict-of-law rules for refugees with subsidiary protection status, in Germany and some other EU Member States, insofar as those states subject personal matters to the lex patriae. According to the special conflict-of-law rule proposed here, the law applicable at the place of habitual or simple residence is applicable if and as soon as a person qualifies for national or international protection status; otherwise, the ordinary conflict-oflaw rules determine the applicable law. This proposal, which does not focus on formal official acts or private acts, but only on the factual qualification of third-country nationals for a protection status, avoids a change of law in the host country. Like the Austrian special conflict-of-law rule mentioned above, the proposed provision respects the different purposes of asylum or aliens law, on the one hand, and conflict-of-law, on the other. While the provisions of the law on asylum or the law on foreigners are primarily directed towards the general welfare of the host state and the physical welfare of asylum seekers in the broad sense, conflict of laws deals with the legal status and private-law relations of individual persons. The two areas of law must therefore be differentiated. Thus, whether a national of a third country who has fled is a refugee within the meaning of Art. 1 A (2) and 12 GRC or only fulfils the conditions for subsidiary protection under Art. 2 (a), (f) Directive 2011/95/ EU, that person is to be assessed by the civil court dealing with a personal status matter irrespective of aliens law proceedings or decisions. In this respect, the civil court is not bound in its assessment and decisions – in the absence of any other legal provision – to any positive or negative domestic or foreign administrative decision52 or any other formal act (e. g. filing of an application). In contrast to the Austrian provision53, some other EU Member States have enacted special conflict-of-law rules that make the application of the host country’s personal status law to persons seeking protection dependent on an official act of recognition54 or an application for the granting of protection55. However, neither the CFR nor Directive 2011/95/EU56 bind Member State 52

Prevailing opinion in German literature and practice on Art. 12 GRC: cf. e. g. Lorenz, in: Hau/Poseck (eds.), Beck’scher Online-Kommentar BGB, EGBGB Art. 5 no 31 (63. ed., status: 01. 08. 2022, online commentary); Thorn, in: Grüneberg (ed.), BGB Kommentar, Appendix EGBGB Art. 5 no 22. 53 Supra section IV. 2. 54 Poland: Art. 3 PIL-Act, Netherlands: Book 10, Art. 10:17 Civil Code. 55 Czech: § 28 (4) PIL-Act. 56 Cf. recital 14 Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304, recital 21 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ L 337/ 9 and recital 18 Proposal for a regulation of the European Parliament and of the Council on

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civil courts to any aliens law measures or decisions when determining the personal status of persons seeking protection. Relevant decisions by the authorities have at most an advisory effect for the determination of the applicable personal status by the civil courts. Thus, relevant decisions of the authorities concerning the legal status of a person seeking protection may render corresponding additional enquiries by the respective civil court seised with the matter superfluous in the context of determining the applicable personal status. Furthermore, the filing of an application for international protection may be evidence of the applicant’s intention to stay. Nevertheless, it is for the competent civil court to assess, irrespective of such acts, whether a person meets the requirements for international protection status as a condition for the applicability of the law of the host State57.

V. Summary • Within the territorial scope of application of the Basic Law, the Sharia is not valid in the sense of being unconditionally binding, because there is no corresponding mandate by the German legislature to apply it. • Sharia law provisions, in contrast, are applicable domestically insofar as the foreign state called upon by virtue of domestic/European conflict-of-law rules has adopted them by virtue of codification or referral, i. e. has recognised them as state norms. • However, such a referral to Sharia law provisions of foreign states is either displaced by special unilateral conflict-of-law rules invoking German substantive law, or controlled by the reservation of compatibility with German public order of the application of such norms, in particular with fundamental rights, and is disapplied if necessary (Art. 6 IACC). • Special case: For persons entitled to asylum and convention refugees, there is a special link to personal status in the sense of the lex domicilii; there is no such rule for refugees entitled to subsidiary protection. In order to fill this unjustified gap, a conflict rule should be introduced at EU level for all persons in need of national or international protection in the sense of a reference to Art. 12 GRC.

standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/ 109/EC of 25 November 2003 concerning the status of third-country nationals who are longterm residents, COM/2016/0466 final: All refer to the recognition of refugee status as declaratory. 57 Cf. German Supreme Court (Bundesgerichtshof), collection of decisions (BGHZ) Vol. 169, p. 240 no 9 (re: Asylum seeker).

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Bibliography Bogdan, Michael: Refugees in Swedish private international law, in: Grimheden, Jonas/Ring, Rolf (eds.): Human rights law: From dissemination to application. Essays in honour of Göran Melander, Leiden/Boston 2006, pp. 311 – 320. Grüneberg, Christian (ed.): BGB Kommentar, 82nd edition, Munich 2023. Hau, Wolfgang/Poseck, Roman (eds.): Beck‘scher Online-Kommentar BGB, 63rd edition, Munich 2022. Khoury, Adel Theodor, in: Khoury, Adel Theodor/Heine, Peter/Oebbecke, Janbernd (eds.), Handbuch, Recht und Kultur des Islams in der deutschen Gesellschaft, Gütersloh 2000, pp. 281 et seq.

Large-Scale Disasters in Germany and Israel* By Clemens Lückemann**

I. Introduction Major, complex disasters are sad events for thousands of people. The Love Parade tragedy in Duisburg on 24 July 2010 and the subsequent proceedings especially come to mind. As a result of that event, a commission was appointed entitled Possibilities and Limits of Complex Criminal Proceedings – Use of an Expert Commission to Improve the Investigation of Complex Accidental Events.1 The commission was conceived of as forward-looking: serious complex casualty events are rare; but they will happen again and again; see the mass panic at the Lag-ba-Omer festival at Har Meron, Israel on 29 April 2021 resulting in at least 45 deaths and 150 injuries. It was the civil disaster with the most deaths in the history of the State of Israel. One could almost see it as a terrible replay of the Love Parade disaster. For the commission, it was not a matter of criticising the Love Parade investigation procedure, but of drawing lessons from that procedure, and also from other investigations involving complex incidents, i. e. from our own experiential knowledge and from the results of almost 60 interviews with experts, in order to develop recommendations for the investigation and handling of future complex casualty incidents.

* Revised lecture given to the German-Israeli Lawyers Association (DIJV/IDJV) on 5. 5. 2022 in Bonn. ** Clemens Lückemann was President of the Bamberg Higher Regional Court from 2013 to 2020. 1 The final report of the Expert Commission on improving the investigation of complex casualty incidents was presented by the Ministry of Justice of the State of North RhineWestphalia in March 2022 and is available in German at: https://www.justiz.nrw/JM/fach veroeffentlichungen/abschlussbericht_expertenkommission.pdf (accessed at 10. 3. 2023).

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II. Final Report of the Commission on Ways to Improve the Investigation of Complex Casualty Incidents The core of the Commission’s final report is a 20-point proposal on ways to improve the investigation of complex casualty incidents.2 It is attached to this article as an appendix. Selected proposals by the Commission are presented below.

1. The Investigation Should Transcend the Confines of the Criminal Law After complex incidents, not only criminally relevant causes should be investigated, but also other direct and indirect causes as well as the factors that facilitated the incident, including regulatory, institutional, organisational and personnel conditions and, in particular, any weaknesses in safety systems; where appropriate, investigation reports should contain safety recommendations for the prevention of similar incidents in the future.3 The goals and interests of those affected – i. e. victims, survivors and relatives – were a particular focus of the Commission.4 For many of those affected, the complete investigation of the events and their causes is the most important goal in coming to terms with complex accidents. Combined with this interest in a comprehensive explanation of the causes is often the hope that similar events can be prevented by bringing about changes to improve security systems. In addition to the legitimate interest in the investigation of complex major incidents by those affected, there is also the legitimate interest of the public in a complete explanation of the causes of the event as well as ways of preventing similar events from recurring. And why can criminal proceedings only fulfil these needs to a limited extent? Well – the limits of criminal proceedings in Germany are obvious: the aim of criminal proceedings is only to establish the truth about the existence of an alleged or suspected criminal offence and, if necessary, to bring the offender(s) to justice in accordance with the law.5 Thus, criminal proceedings are bound by the factual limits of substantive criminal law. In the German legal system, criminal liability presupposes individual culpability – which is why there does not exist criminal liability in the real sense for companies and associations. Investigations of a general interest beyond those limits are not and should not be the task of criminal proceedings and thus the public prosecutor’s office. If one compares the requirements for criminal proceedings and their limits with the scope of the legitimate interest in investigation of those affected by complex incidents, it becomes readily apparent that criminal proceedings can only partially satisfy these interests. Of course, in the case of major incidents, a violation 2

Ministry of Justice of NRW, Final report of the Expert Commission, p. 10 et seq. Ministry of Justice of NRW, Final report of the Expert Commission, p. 10. 4 Ministry of Justice of NRW, Final report of the Expert Commission, p. 14. 5 Fischer, in: Barthe/Gericke (eds.), Karlsruher Kommentar zur Strafprozessordnung, Introduction mn. 3. 3

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of organizational, selection, supervisory and control duties, which may be actionable as negligent homicide or causing bodily injury, must be investigated. But even then, there remains a great need for investigation, as it were, well beyond the core issues relevant to the criminal law, for example, concerning the general conditions, risk management and organizational influences; this need for investigation can no more be met by criminal proceedings than the need for proposals for the prevention of comparable incidents in the future. A special incident investigation procedure supplementing criminal proceedings is therefore the means of choice for cases such as the complex accidents addressed here. Such procedures have been tried and tested both nationally and internationally. The national model can be the air accident investigation procedure of the Federal Bureau of Aircraft Accident Investigation in Braunschweig, which complies with worldwide standards; the international model is the Swedish “Accident Investigation Authority”, which also investigates major accidents outside the transport sector. But governance in the Federal Republic of Germany is a complex federal system. Clearly, however, 16 state accident investigation agencies plus the one at federal level, would be preposterous. The Commission therefore proposes a joint federalstate agency. It could be set up in a very lean way – with the main task of prophylactically finding experts for all conceivable accident situations, which it and the judiciary could make use of in an emergency. If a complex accident were to occur – for example, a flood disaster, a bridge collapse, chemical plant accidents or major fires in public buildings – that body could be called upon to conduct a comprehensive investigation, and with the help of those experts, examine all the background information and, if necessary, draw up proposals for preventing future accidents – without the restrictive limitations of criminal proceedings.6 2. Victim Concerns Could Be Identified (Even) Better Now to the second issue, that the victims’ concerns could be better identified (even). Three proposals have been singled out: Based on the example of the German Federal Public Prosecutor’s Office, which is responsible for terrorist attacks, public prosecutors at every public prosecutor’s office should be trained and ready to act as victim prosecutors in the event of complex proceedings involving many injured parties. Their tasks, in coordination with the head of the investigation, would be relieving the investigative team and acting as the sole prosecutorial contact point in matters of victim care, releasing the results of investigations to give information to victims, relatives and other entitled persons, as well as releasing the remains of victims and issuing burial permits.7 Practical experience with the idea of victim prosecutors is available from the attack on the syna6 7

Ministry of Justice of NRW, Final report of the Expert Commission, p. 20 et seq. Cf. Ministry of Justice of NRW, Final report of the Expert Commission, p. 27.

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gogue in Halle in 2019 and the attack in Hanau in 2020. According to those findings, victim prosecutors can also help identify what criminal proceedings can and cannot accomplish. The separation of investigative teams and victim support teams can also relieve the investigative teams, and, on the other hand, involve victims and surviving relatives early and comprehensively, and by providing increased transparency as well, achieve greater acceptance for the work of the public prosecutor’s office. Care must be taken to ensure that police officers who are appropriately sensitized and trained are deployed to interview injured parties and survivors. Judicial administrative staff should also have access to and participate in similar training. The financial compensation of victims should be facilitated by a new rule awarding a minimum sum in criminal proceedings. The German Parliament has made provision for injured persons to be able to assert their civil claims for compensation against offenders during criminal proceedings without the need for separate civil proceedings.8 However, this so-called adhesion procedure has never really been put into practice. Criminal court chamber presidents see the task of reviewing claims for damages as overburdening criminal proceedings and have ostensibly rejected it. To remedy this situation, the Commission therefore proposes a scheme based on the Austrian model: The criminal court chamber should be able to award a minimum amount as damages without having to meet the requirements of a partial judgment under the Code of Civil Procedure, as is the case now. In less technical legal terms, the criminal division would be able to say, for example: regardless of whether the specific injuries were really as serious as alleged can be left open – but in any case, the amount X is at least reasonable and is therefore awarded. If the victim wants more, he or she must take civil action. Regarding the Austrian model, it is said that victims are very often satisfied with this minimum amount as recognition for their suffering. 3. An Ongoing Main Judicial Hearing Must Not Be Under the Sword of Damocles of Time Barring The third key point of the research is that ongoing main judicial proceeding should not face being time barred by the statute of limitations. The Commission hopes that its proposals will help to speed up proceedings, even in the case of complex accident cases, and reduce the risk of time barring occurring before the conclusion of proceedings.9 However, even with the most careful preparation, planning and execution of complex large-scale proceedings, this danger cannot be ruled out. German law provides that cases of negligent homicide are barred at the latest by the statute of limitations after 10 years,10 i. e., they may no longer be tried. Ongoing proceedings must be discontinued. The only exception to this rule is when a judgment has been rendered in the first instance – in that case, the statute of limitations no longer applies, 8

Cf. Ministry of Justice of NRW, Final report of the Expert Commission, p. 29. Cf. Ministry of Justice of NRW, Final report of the Expert Commission, p. 23 et seq. 10 Cf. § 78c III S. 2 StGB.

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even if the judgment is overturned. This point in time – not legally technically formulated – from which the statute of limitations no longer applies – ought to be brought forward to the beginning of the main hearing. This proposal is consistent with the outstanding central function of the main hearing as the core of German criminal court proceedings, in which the truth is to be investigated and the facts of the case elucidated and established with the goal of reaching a just verdict.11 Once the court has reached this point, a discontinuation of proceedings due to the statute of limitations is incompatible with the idea of substantive justice. Even legal peace as a central goal of the statute of limitations12 is not helped by a discontinuation of proceedings at this stage. That is because, from the point of view of those affected, abandonment of the ongoing main hearing due to time barring does not contribute to the legal peace that they might have expected from a verdict, but rather to profound disappointment with the judiciary and with the rule of law. If there is a threat of time barring in an ongoing main trial, the court may ultimately be forced to conduct a “sham trial” – because it would be clear that a true verdict could not be reached in time – or the court may be rushed to enter a judgment, both of which would be incompatible, among other things, with the dignity of the court and with the role of the judiciary as the third branch of government.

III. Conclusion This contribution refers only to selected proposals with regard to improving the investigation of complex casualty incidents. The appendix contains further suggestions for the legislature and the judicial administration. They could be summarized under the slogan “Small adjusting screws – big effect” based on the principle of hope. Perhaps some of the ideas will make you, our colleagues from Israel, smile – either because you recognize the problems or because you wonder about the shortcomings that are apparent from the Commission’s proposals. In the end, it is to be hoped that the work of the Commission can make a small but significant contribution to improving the investigation of complex casualty incidents and thus, indirectly, perhaps also to the prevention of such occurrences!

11

Gmel/Peterson, in: Barthe/Gericke, (eds.), Karlsruher Kommentar zur Strafprozessordnung, Pre. § 226 mn. 1. 12 Mitsch, in: Erb/Schäfer (eds.), Münchener Kommentar zum Strafgesetzbuch, § 78 mn. 2 et seq.

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IV. Annex: A 20-Point Proposal on Ways to Improve the Investigation of Complex Casualty Incidents 1. The Comprehensive Investigation of Casualty Incidents Extending Beyond Criminal Proceedings After complex catastrophic events, not only must the causes relevant to criminal law be investigated, but also the (further) direct and indirect causes as well as factors that may have facilitated the catastrophic event, including regulatory, institutional, organizational and personnel framework conditions and, there, in particular, whether there were any weaknesses in security systems; where appropriate, investigation reports should contain safety recommendations to prevent comparable future catastrophic events. To that end, independently of the criminal proceedings, a joint federal-state agency (e. g. at the new Joint Competence Center for Civil Protection of the Federal Government and the states at the Federal Office of Civil Protection and Disaster Assistance) should be set up, which would operate along the lines of the federal agencies for aircraft accident investigation, maritime accident investigation and railroad accident investigation. As a precautionary measure, this institution should also identify experts for as many conceivable types of disaster scenarios as possible and make them available as needed to courts and public prosecutors’ offices. This body should also benefit from international experience in the field of casualty incident investigation through regular exchanges with foreign authorities competent in this field. 2. Time Barring During main hearings in criminal proceedings on complex casualty incidents, the occurrence of time barring is detrimental to legal peace and should therefore be excluded. On this issue, the majority of the Commission proposed: In § 78b(3) of the Criminal Code, the clause “If the main hearing has commenced before the expiry of the limitation period” should be inserted in place of the clause “If a judgment of the first instance has been rendered before the expiry of the limitation period”. § 78b(4) of the Criminal Code could then be deleted. If the German Parliament could find a way to stop time barring from the beginning of the main trial in proceedings for complex casualty events with large number of defendants, it would also be supported by those Commissioners who would not otherwise vote in favor of the majority proposal. 3. Victim Prosecutors At least one victim prosecutor should be available at each public prosecutor’s office for cases of major casualty incidents, in accordance with the strategy of the Federal Prosecutor General at the Federal Supreme Court for safeguarding the rights and

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needs of victims of terrorist attacks. The persons designated for this purpose shall receive appropriate preparatory training. The main focus of their duties is to be available as the sole contact persons from the public prosecutor’s office for victims in matters of victim support (“single point of contact”), for example, fulfilling the statutory obligation to provide those persons with information in accordance with §§ 406i and 406j StPO (Code of Criminal Procedure) and providing information, e. g., on the identification and release of the bodies of deceased relatives to the next of kin, and, conversely, to pass on information and victims’ concerns to the investigation team if necessary. 4. Dealing with Injured Parties/Survivors During Criminal Investigation Proceedings It must be ensured that in investigations into casualty incidents, injured parties and survivors are questioned by police officers who have been sensitized and trained to deal with injured parties; appropriate training must also be provided for members of the judiciary. 5. Monetary Compensation – Adhesion Proceedings In order to promote more frequent use in practice of the adhesion procedure and thus to facilitate access to monetary compensation by injured parties, the Commission proposes that § 406 StPO be amended along the lines of the provisions in § 366 (2) Austrian StPO, according to which the criminal court may award a minimum amount in adhesion proceedings without the requirements of a partial or basic judgment having to be met. The Commission further proposes that a court should have a separate calculation of its staffing requirements for the adhesion proceedings it conducts. 6. Understanding of Causation, an Investigative Perspective After the occurrence of a casualty incident, the investigation must not only start with those closest to the incident. Rather, an examination is necessary as quickly as possible whether there are indications of initial suspicion with regard to criminally relevant violations of organizational, management and control obligations at the level of the management of the bodies/organizations concerned or at levels between the management and those closest to the incident. This was done very thoroughly in the Love Parade proceedings. If necessary, investigative proceedings must be initiated on the basis of the applicable rules of causation.

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7. Database of Experts The Commission recommends the establishment of an independent register kept by the Federal Office of Justice, organized according to categories of major incidents (which may have to be coordinated with the federal-state institution in accordance with section 1), which would include not only criminal proceedings (in this respect an extension of the ZStV (Central Public Prosecutor’s Proceedings Register)), but also civil and administrative court proceedings. In this register, experts giving testimony in court proceedings concerning the above-mentioned events are to be listed according to the subject areas of their expertise. In contrast to the current ZStV, the register should also be accessible to courts and lawyers and enable contact to be made with the commissioning courts and public prosecutors’ offices via court procedure details (file number, authority/court). The deletion periods for this register are to be regulated in derogation from § 494 StPO and are to be so generous that the data are available as long as they can be useful for finding suitable experts, based on prior experience. 8. Instructing, Directing and Examining Expert Witnesses Careful management of experts is indispensable, especially in complex largescale proceedings. In individual cases – especially in the case of experts who are inexperienced in court or even come from other legal systems – this may also include precautionary instruction on rights and obligations of expert witnesses as well as on behaviors to be avoided. The Commission has noted that some of the victims and survivors of the Love Parade incident were particularly disappointed that the main expert was not heard at the main hearing before the proceedings were discontinued. The Commission recommends that experts whose opinions are likely to be of central importance in determining the causes of accidents should be heard as early as possible in main hearings. If necessary, it is particularly advisable to allow experts to provide their expert opinion in the main hearing, initially on the basis of examining the files (see § 80 (2) StPO), with the proviso that they may supplement that depending on the course of the taking of evidence in court, taking into account the results. 9. Professionalized Staff Support for Affected Prosecutors’ Offices Complex casualty incidents present every public prosecutor’s office with sudden challenges of the most varied kinds, which – unlike the usual investigative work of public prosecutors, e. g., on negligence offenses – can only be mastered as part of a team. As a rule, there is a lack of relevant experience on the ground. The states should therefore ensure that a number of competent and particularly team-oriented public prosecutors (including public prosecutors as group leaders

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and senior public prosecutors) are available to support locally responsible public prosecutors’ offices in major casualty incidents, contributing to the necessary quality and speed of investigations by increasing the expertise and experience available. These public prosecutors (who may also be taken from an existing emergency reserve – as is the case in Hesse) are to be relieved of their duties at their home authorities at short notice if necessary and, (if necessary,) assigned to the relevant public prosecutors’ offices by way of secondment to conduct investigations within the scope of their competence. The Commission also recommends that the states set up supra-regional pools of support staff who can be deployed at short notice and who are prepared to provide services outside of both normal working hours and their own places of work. In the event of major incidents, these pools can be used to provide the investigating public prosecutor’s office with staff reinforcements at very short notice so that, for example, urgent applications can be made, reports and press releases written, register queries made, files opened, etc. 10. Legally Qualified Assistants for Courts and Prosecutors’ Offices Courts of first instance and public prosecutors’ offices are to be provided with academically qualified staff as required to deal with proceedings relating to complex casualty incidents. Academic staff can be commissioned by the presiding judges or by the public prosecutors in charge of the investigations, for example to carry out literature and case law research, research into specialized areas of law relevant to the specific case, such as building planning and building regulations law, or other academic research assignments, thereby relieving judges and public prosecutors of those tasks. If public prosecutors’ offices are quickly provided with support by personnel in the event of major incidents, as suggested here (see section 9. above), the need for (further) support by research assistants will be rare, but it cannot be ruled out. Particularly suitable legal trainees in part-time employment, following the example of judicial assistants in Lower Saxony, and a similar project currently underway in the district of the Düsseldorf Higher Regional Court, could also be considered as research assistants. 11. Court Managers, On-Site Business Managers In complex large-scale proceedings, the presiding judges of the criminal division should be supported by “court managers” in the performance of typical procedural administrative tasks such as arranging appointments, making technical preparations, preparing protective orders, preparing the premises (courtroom and necessary adjoining rooms, e. g. for witness support, media representatives, waiting rooms, etc.). This task can be performed by judges (e. g. judges with organisatorial responsibilities) as an administrative task, but also by court administration officials.

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In the Love Parade proceedings, the presence of a manager with decision-making authority on site in the courtroom building on the days of the trial proved to be particularly effective. The Commission recommends this for all main hearings outside the court building. 12. IT; Digitization; Electronic File (Scanning Standards); Data Exchange Complex casualty incidents typically result in particularly extensive and complex files. Public prosecutors’ offices and courts must therefore be provided quickly and unbureaucratically (direct communication with central procurement offices) with all the necessary hardware and software technology (e. g., storage capacity) and all digital tools for case processing, even outside the usual procurement procedures and guidelines. As long as the e-file is not yet the legally binding, leading file in criminal proceedings, special care must be taken to ensure that the state of the art is observed extremely carefully from the outset when scanning all parts of the paper file and that the applicable standards (cf. the technical guideline “TR-RESISCAN” of the Federal Office for Information Security, BSI) are adhered to. For example, consistency with the originals must also be ensured in terms of pagination and color/black and white scans. The exchange of data between investigating authorities and the public prosecutors’ offices must be carried out electronically, not only for large-scale proceedings. In large-scale proceedings, the chairpersons should agree with the other parties to the proceedings – as was done in the Love Parade proceedings – on direct communication by (encrypted) e-mail with encrypted pdf files. 13. Physical Facilities: Suitable Court Rooms with Adjoining Rooms The states should make preparations to have available suitable, sufficiently large and technologically well-equipped courtrooms for large-scale proceedings, including the necessary suitable ancillary rooms (e. g. separate waiting areas and separate access routes for witnesses, among others, work rooms for journalists with appropriate technological equipment such as WLAN, power supply, etc., rooms for witness support, counselling and meeting facilities, first aid and rest rooms, rooms for security personnel and sufficient rooms for access controls and other security measures, rooms for the provision of drinks and snacks). The Commission suggests that the states examine whether this can be better ensured – also more economically – through use of their own central large meeting hall buildings or through the pre-arranged letting of third-party premises such as exhibition halls (as was the case for the Love Parade proceedings).

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14. Guidelines, Contingency Plans The states should have available guidelines and contingency plans for public prosecutors’ offices and court authorities for the judicial management of complex largescale incidents, which should be developed jointly (if necessary, also with the help of the German Judicial Academy -DRA) and updated on an ongoing basis. These guidelines and plans should also be accessible to judges. 15. Review of Completed Large-Scale Trial Proceedings – Criticism of Operations Within the judiciary, it should become standard practice that major casualty proceedings are reviewed after their conclusion in the sense of a “review of the operation” in order to gain and secure important empirical information and develop ideas on how to do it better the next time around. In view of the principle of judicial independence, the participation of the adjudicating court in internal reviews, e. g. with the judicial administration including the press spokesperson and the public prosecutor’s office, must be voluntary. Joint processing by the public prosecutors’ offices and the police should be just as self-evident as the internal processing of large-scale operations by the police has been i. e. standard policy for a long time. In appropriate cases, the judiciary should also offer defense lawyers and representatives of the plaintiffs the opportunity to participate in joint reviews. 16. Exchange of Best Practice Guidelines The Commission recommends the regular exchange of best practice guidelines on the management of complex large-scale proceedings at the level of the German Judicial Academy. The corresponding (conference) documents should be made available in an unbureaucratic manner to courts and public prosecutors’ offices that in the future may be faced with the task of complex investigative or criminal proceedings. 17. Coaching and Supervision In many interviews, the commission experienced first-hand how stressful largescale proceedings involving large-scale disasters can be, even for members of the judiciary. There can even arise extreme psychological stress leading all the way to the risk of suicide. Coaching and supervision services must be available as standard practice in the justice system throughout Germany, and to such an extent and in such a manner that it is a self-evident, low-threshold offering of help so that its use does not have a stigmatizing effect.

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18. Media Work Professional work with the media is indispensable for the judicial management of major disasters. Committed, motivated and appropriately trained press spokespersons who are sufficiently relieved of their other duties must be available for this purpose. If necessary, the number of staff released from other duties can be increased at short notice. The task of the press spokesperson is neither to be performed by the head of the authority nor by those involved in the respective proceedings. 19. More Flexible Cost Regulation in Cases of Discontinuation of Proceedings Under § 153a StPO The Commission proposes that § 467 (5) StPO be repealed. The rigid provision on payment of necessary expenses in § 467 (5) StPO often makes it factually impossible for the accused to consent to the discontinuation of proceedings under § 153a StPO, particularly in large-scale proceedings, because the total sum of expenses to be borne by the accused in such cases can exceed the fines under § 153a (1)(2) StPO many times over and can drive the accused to ruin. In contrast, the flexible provision of § 467 (4) StPO could expand the de facto scope of application of § 153a StPO, even in proceedings for major casualty incidents, which the Commission considers appropriate because, particularly in the case of casualty incidents, there is often no individual severity of (negligent) culpability, even in the case of serious damage. 20. Postponement of the Retirement of Judges for the Duration of the Main Hearing and Reduction of Sentences The Commission proposes a rule that judges may voluntarily postpone their retirement date for the duration of ongoing trials including a subsequent period of time for the preparation and delivery of the judgment. The Commission is convinced that such a rule, restricted to the respective proceedings already in progress, is compatible with the principle of the statutory judge. Bibliography Barthe, Christoph/Gericke, Jan (eds.): Karlsruher Kommentar zur Strafprozessordnung, 9th edition, Munich 2023. Erb, Volker/Schäfer, Jürgen (eds.): Münchener Kommentar zum Strafgesetzbuch, Bd. 2: §§ 38 – 79b, 4th edition, Munich 2020. Ministry of Justice of the State of North Rhine-Westphalia: Final report of the Expert Commission on Improving the investigation of complex casualty incidents, 3.2022, available at: https://www.justiz.nrw/JM/fachveroeffentlichungen/abschlussbericht_expertenkommission. pdf (accessed at 10. 3. 2023).

The Role of the State Comptroller of Israel in Combating Government Corruption and Promoting Moral Integrity By Yoram Rabin and Alon Rodas* In the past, the common view was that the office of the State Comptroller is a toothless institution, in the sense that it lacks the authority to enforce its recommendations by imposing sanctions. […] Yet, this lack of authority is not a vulnerability but a source of strength. Indeed, the lack of authority to impose sanctions is the price the State Comptroller must pay for the enormous moral authority he enjoys. [Justice Yoram Danziger in: HCJ 3989/11, The Temple Mount Trustees Movement v. State Audit Affairs Committee of the Knesset, section 11 (Dec. 27, 2012)]

I. Introduction 1. Supreme Audit Institutions: General Review and Main Functions Most countries have established, either in their constitutions or through legislation, an independent institution outside of the executive branch charged with the responsibility and the authority of overseeing the accounts and operations of the executive. These institutions are collectively known as “supreme audit institutions” (SAIs). They come in different forms and under various different names. Most are called “auditing institutions”1, but others are referred to as “judicial auditing tribunals”2, or “state comptrollers”3. SAIs are important watchdogs promoting account* Prof. Dr. Yoram Rabin, Professor of Law, is President of the College of Management Academic Studies, Israel. Prof. Rabin served as the Legal Advisor of the Israeli State Comptroller between 2016 and 2019; Dr. Alon Rodas holds a Master of Laws degree (LL.M.). He is adjunct lecturer at Haim Striks Faculty of Law, College of Management Academic Studies, Israel, and served as advisor of the Director General of the Israeli State Comptroller between 2018 and 2020. 1 For example: Office of Auditor General (Argentina); Auditor General (Cyprus); State Audit Office (Hungary); General Audit Office (Netherlands). The titles for constitutionally established SAIs are taken from Elkins and Ginsburg, Characteristics of National Constitutions. 2 For example: Court of Audit (Austria); Court of Accounts (Portugal); Tribunal of Accounts (Uruguay). 3 For example: Comptroller General of the Republic (Chile); Comptroller and Auditor General (India).

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ability and supervising and controlling the conduct of public officials, elected officials, and government authorities. The first modern state auditing institutions appeared in the 18th and 19th centuries, mostly as a result of two socio-political changes.4 One was the collapse of totalitarian regimes and the slow emergence of democracies, alongside with increased recognition of the need for public accountability. In non-democratic regimes, the public administration was an instrument used by rulers to carry out their wishes; in democratic countries, there was a growing perception that the public administration owed a duty of loyalty to its citizens. The second change was the rise of the welfare state and the expansion of state services provided to citizens, which increased the bureaucratic burden and regulation, as the public administration became inseparable from citizens’ daily lives.5 Although citizens in welfare states benefit from services, the great power given to the executive authority and its branches, and the possibility of abuse of power, increase the need for external supervision. This is what led to the establishment of SAIs. The International Organization of Supreme Audit Institutions (INTOSAI), founded in 1953 following the lessons learned from World War II,6 is the worldwide federation of SAIs. It operates as an umbrella organization for the external government audit community.7 INTOSAI created, among other things, its Framework of Professional Pronouncements (IFPP),8 which contains three categories of professional positions in audit matters: Principles,9 Standards,10 and Guidance.11 The scope of the issues examined by SAIs has expanded over the years, and the purpose of state audit has changed accordingly. In the not-too-distant past, SAIs mainly conducted financial regularity audits, which included document verification 4

For further discussion of the development of SAIs, see Rabin/Mersel/Rodas, Auditing, in: Grote/Lachenmann/Wolfrum (eds.), Max Planck Encyclopedia of Comparative Constitutional Law, pp. 1 – 12. 5 Cassese, The Administrative State in Europe, in: Cassese/von Bogdandy/Huber (eds.), The Max Planck Handbooks in European Public Law, 57; Waldo, The Administrative State: A Study of the Political Theory of American Public Administration. 6 After World War II, the representatives of a number of audit institutions met in Switzerland and decided to establish a forum of institutions engaged in government audit. In 1953, the forum held its first conference, in Havana, Cuba. See the International Organization of Supreme Audit Institutions, INTOSAI: 50 Years (1953 – 2003) 14 (2004). 7 At the time of its foundation, INTOSAI had 34 members. At present, INTOSAI consists of 195 Full Member SAIs from countries that are Member States of the United Nations or any of its specialized agencies, 5 Associate Members, and 2 Affiliate Members. 8 Formal and authoritative announcements or declarations of the INTOSAI Community. 9 INTOSAI Principles (INTOSAI-P) consist of founding and core principles. The founding principles have historical significance and specify the role and functions that SAIs should aspire to. 10 The International Standards of Supreme Audit Institutions (ISSAI) are the authoritative international standards on public sector auditing. 11 The INTOSAI Guidance (GUID) was developed by INTOSAI to support the SAIs in the implementation of ISSAIs in practice.

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and examination of balance sheets and financial statements. In the modern era, especially since World War II, the scope of state audits has been extended from checking financial regularity to include the auditing of expenses and reviewing aspects of efficiency, effectiveness, and the economy.12 Modern state audit is not limited to financial audit and the production of accounting reports; it now examines the performance quality of government agencies’ work and the legality of government activities.13 Today, SAIs are important watchdog agencies trusted with the supervision and control of the conduct of public servants and government authorities. They promote good governance, which includes transparency and political accountability, fairness and equity, efficiency and effectiveness, respect for the rule of law, and high standards of ethical behavior.14 One of the most important functions of SAIs is to make certain that entities with executive authority operate professionally and with integrity, and that public servants do not abuse their status and authority. SAI reviews during state audits are distinguished from other types of reviews (such as judicial review and internal audits) by their status, goals, and methods. As a process, they are characterized by the collection of information about the activities of the audited bodies and the assessment of that information according to standards relevant to the particular field. Audits entail an independent examination of the actions taken by state institutions and government corporations. As national agencies that oversee governmental acts, SAIs act to curb corruption. 2. Supreme Audit Institutions: Role of Curbing Corruption There is no agreed-upon definition of the term “corruption.” According to a straightforward definition, corruption is “the abuse of public power for personal gain or for the benefit of a group to which one owes allegiance.”15 Government corruption includes various actions such as embezzlement of public funds, extortion, favoritism, unlawfully accepting and giving gifts, bribery, money laundering, and nepotism. These actions may be carried out in a planned and systematic way or 12 Elmer B. Staats, who headed the US General Accounting Office between 1966 and 1981, coined the phrase “the three Es” (referring to economy, efficiency, and effectiveness) as a description of these new areas of audit. See Ben-Porat, Basic Law: The State Comptroller, p. 4. 13 ISSAI 300: Fundamental Principles of Performance Auditing. 14 Rabin/Mersel/Rodas, Auditing, in: Grote/Lachenmann/Wolfrum (eds.), Max Planck Encyclopedia of Comparative Constitutional Law, pp. 1 – 12. 15 Dye/Stapenhurst, Pillars of Integrity, The Economic Development Institute of the World Bank, p. 2; for other definitions of the term corruption see Everett/Neu/Rahaman, Accounting and the global fight against corruption, Accounting, Organizations & Society 32 (2007), 513, p. 514; Klitgaard, Bolivia –Healing Sick Institutions in La Paz, Governance and the Economy in Africa: Tools for Analysis and Reform of Corruption, p. 118, He proposes the following definition: C (Corruption) = M (Monopoly Power) + D (Discretion) – A (Accountability).

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on an ad hoc basis. They may be large or small scale, and may be conducted passively or actively.16 This phenomenon is “considered a special case of a particularly damaging activity both to public resources and to public trust,”17 and is often seen as a “social disease” that has a negative effect on many sectors. Government corruption can lead to the irresponsible use of resources, damage economic growth and the quality of life of the citizens, damage the rule of law and democracy, and reduce public trust in government.18 Civil injustice, poverty, and at times arbitrary action by the government against its citizens can also be linked to government corruption. Although no institution, acting alone, can defeat corruption or even reduce it significantly, SAIs can be a powerful force in the fight against it.19 According to the accepted view, the primary responsibility for reducing corruption by prevention and detection of corrupt acts rests with the administrative authorities entrusted with law enforcement, such as the police and the public prosecutor. Therefore, it is not one of the main tasks of SAIs, nor should it be. However, SAIs want to contribute to the ongoing struggle against corruption.20 For example, the 16th International Congress of Supreme Audit Institutions (INCOSAI), held in Montevideo, Uruguay, in 1998, was devoted partly to preventing and detecting fraud and corruption. The Uruguay INCOSAI adopted the following statement: “SAIs agree that fraud and corruption are significant problems affecting all countries in varying degrees and that the SAIs can and should endeavor to create an environment that is unfavorable to fraud and corruption”.21 This approach is explicitly reflected in the INTOSAI Professional Pronouncements.22 INTOSAI Principle 12 added that SAIs should be re16 Kayrak, Evolving Challenges For Supreme Audit Institutions In Struggling With Corruption, Journal of Financial Crime 15 (2008), 60, p. 61. 17 Reichborn-Kjennerud/Carrington et al., Supreme Audit Institutions’ Role in Fighting Corruption, The 15th Biennial CIGAR Conference 2015, p. 2. 18 Mauro, Corruption and Growth, Quarterly Journal of Economics 110 (1995), 681. 19 Cooperation between various institutions also can promote the fight against corruption. For the cooperation between SAIs and parliaments, see: Stapenhurst/Titsworth, Parliament and Supreme Audit Institutions, The Role of Parliament in Curbing Corruption, 101, p. 106. Another way to enhance the effectiveness of the fight against government corruption and increase good governance is to mobilize the public. For example, public participation in the audit process, by allowing the public to contact audit institutions, even anonymously, and report improper behavior of government officials is an effective tool for identifying suspected acts of corruption. See: Armstrong, Citizen Engagement Practices by Supreme Audit Institutions, pp. 41 – 50. 20 Borge, The Role of Supreme Audit Insitutions (SAI’s) in Combating Corruption, 9th International Anti-Corruption Conference, p. 8. 21 XVI INCOSAI UREGUAY 1998 (DRAFT OF ACCORDS), 4 (1998). Available at: https://1997-2001.state.gov/global/narcotics_law/global_forum/F410k.pdf. 22 GUID 5270 – Guideline for the Audit of Corruption Prevention, Endorsed in 2016 as ISSAI 5700 – Guideline for the Audit of Corruption Prevention in Government Agencies. With the establishment of the IFPP, it was renamed GUID 5270. Available at: https://www. issai.org/wp-content/uploads/2019/08/GUID-5270-Guideline-for-the-Audit-of-Corruption-Pre vention.pdf; ISSAI 4000 – Compliance Audit Standard, includes the following requirement:

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sponsive to changing environments and emerging risks. Subsection (3) of that principle states that “SAIs should evaluate changing and emerging risks in the audit environment and respond to these in a timely manner, for example by promoting mechanisms to address financial impropriety, fraud and corruption” (emphasis added).23 Although preventing corruption may not be an explicit responsibility of most SAIs, audits may detect acts of corruption such as fraud and abuse.24 According to Stapenhurst and Titsworth, the main contribution of SAIs to preventing corruption is the psychological factor of deterrence, together with the required reporting of criminal and corrupt activity in the public sector.25 Stapenhurst and Titsworth noted that increasing number of SAIs are required to report criminal and corrupt behavior in the public sector,26 and that INTOSAI has shown an increasing interest in corruption and fraud.27 Another contribution of SAIs lies in improving overall transparency and accountability by supporting and creating an environment that limits opportunities for acts of corruption and promotes a climate of good governance.28 3. The Israeli SAI The State of Israel created a Supreme Audit Institution shortly after its establishment in 1948. The new Israeli SAI was formed as the State Comptroller whose mandate and powers were made statutory in the State Comptroller Law (1949).29 In 1958, the State Comptroller law of 1949 was integrated with several amendments to that law and became the State Comptroller’s Law, 1958 consolidated version.30 In “In conducting compliance audits, if the auditor comes across instances of non-compliance which may be indicative of unlawful acts or fraud, s/he shall exercise due professional care and caution and communicate those instances to the responsible body. The auditor shall exercise due care not to interfere with potential future legal proceedings or investigations. Available at: https://www.issai.org/wp-content/uploads/2019/08/ISSAI-4000-ComplianceAudit-Standard.pdf. 23 INTOSAI-P – 12 – The Value and Benefits of Supreme Audit Institutions – making a difference to the lives of citizens, Available at: The Value and Benefits of Supreme Audit Institutions – making a difference to the lives of citizens j IFPP (issai.org). 24 Stapenhurst/Titsworth, Parliament and Supreme Audit Institutions, The Role of Parliament in Curbing Corruption, 101, p. 107. 25 Stapenhurst/Titsworth, Parliament and Supreme Audit Institutions, The Role of Parliament in Curbing Corruption, 101, p. 107. 26 The following countries were mentioned in the study: Bhutan, China, the Czech Republic, Estonia, Germany, India, Indonesia, Lithuania, Malaysia, the Netherlands, the Philippines, Romania, the Slovak Republic, South Africa, Spain, Sweden, and the United States. 27 Stapenhurst/Titsworth, Parliament and Supreme Audit Institutions, The Role of Parliament in Curbing Corruption, 101, p. 108. 28 Reichborn-Kjennerud/Carrington et al., Supreme Audit Institutions’ Role in Fighting Corruption, The 15th Biennial CIGAR Conference 2015, p. 4. 29 The State Comptroller Law (1949), SH 8, 5 May 1949. 30 Hereinafter, State Comptroller Law.

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1988, the Israeli Parliament (hereinafter, the Knesset) enacted the Basic Law: The State Comptroller which granted constitutional status to the Comptroller’s duties and powers.31 The Basic Law and the State Comptroller Law, amended over the years, govern the operation of the State Comptroller and describe in detail the Comptroller’s powers and duties. The State Comptroller of Israel has several important functions, including the task of maintaining good governance and promoting public accountability. Below we focus on the Comptroller’s role in combating government corruption and promoting moral integrity in the public sector.

II. Moral Integrity Audit The Comptroller’s authority to conduct “moral integrity”“audits was granted by the Knesset in an amendment to the State Comptroller law from 1952. The new authority was not part of the original 1952 bill, which dealt with other issues. It was added to the bill at the suggestion of a member of the opposition, and gained wide support. In the debate held on the bill, several Knesset members argued that the law should give the State Comptroller adequate powers to fight corruption.32 In view of those arguments, the final text of the amendment, which was enacted by the Knesset, provided that the State Comptroller is authorized to examine whether audited bodies

31

Mersel/Guttman/Rodas, From State Comptroller to National Human Rights Institution, Israel Yearbook on Human Rights 48 (2018), 161, p. 175: “From that point on the State Comptroller became a ‘constitutional institution’ that plays an important role in the protection of Israeli democratic values.” 32 At this debate, MK Binyamin Avniel, from the Herut party, said: “According to section 8 of the existing law, the Comptroller is given the honorable task of checking whether ministries have been managed economically and efficiently. This section remains unchanged. Incidentally, I see no reason why not add after the words ‘if they have been managed economically and efficiently’ the words ‘in accordance with the ethical norms required of public employees.’ I don’t need to tell the members of the Knesset about the rumors of deficiencies and even corruption of a part, or as has been noted, even a small part of the system can cause damage. Why hand over this matter to the inspection and review of another mechanism? Why not hand it over to a high and independent authority? Why don’t we also entrust him with the task of investigating and checking all instances where there is suspicion that something is wrong with respect to public morality?” MK Hanan Rubin from the Mapam party also referred to the role of the State Comptroller in the fight against corruption and stated: “In no organization and in no country, can corruption and dishonesty be absolutely prevented. But what can be promised? That no phenomenon of this type will be swept under the carpet, but that the public will know. […] It must be reiterated: if the State Comptroller has a function based on this law, this is not merely an administrative role but rather to prove to the general public that there is an institution in the country, independent of the government, independent of the parties, that operates according to its own understanding, and this is the institution that safeguards ethical norms in the work of government offices, and it is the one that makes sure that issues come to the public’s attention.”

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have operated in a “morally irreproachable manner”.33 The first State Comptroller of Israel, Siegfried Mozes, was aware of the new tasks imposed on him by including the term “moral integrity” in the statute. In the first annual report following passage of the amendment, he recognized the vagueness of the term and the wide margin of consideration that will be required of the Comptroller. He also made initial comments on the directions that auditing was likely to take. He stressed that auditing would not stop at civil servants’ motives because improper deeds may be the result of proper intentions. He stressed that public employees should refrain from getting benefits that they could have received as ordinary citizens in order to avoid even the appearance of impropriety. He warned against an “end justifies the means” attitude that might compromise the moral integrity of a public agency.34 This approach went far beyond what was considered to be the scope of SAI audits internationally in the early years of the second half of the 20th century.35 The authority to undertake moral integrity audits was also enshrined in the 1988 Basic Law: The State Comptroller. Section 2(b) of the Basic Law lists the values and activities that are to be audited: The State Comptroller shall examine the legality, moral integrity, orderly management, efficiency and economy of the audited bodies, and any other matter he deems necessary. (emphasis added)

This section makes investigation into the moral integrity and the legality of the actions of audited bodies part of the Israeli SAI’s core work. Although the majority of SAIs recognize the importance of fighting corruption and try to contribute to this struggle, only a small number of SAIs have been authorized explicitly by legislation to examine whether audited bodies have operated in a morally irreproachable manner. Most SAIs that conduct moral integrity-oriented audits examine this issue within the framework of performance or compliance audits.36 This course of action makes sense because government corruption threatens to lead to irresponsible use of resources and damage the country’s economic growth and reduce citizens’ quality of life.37 However, the explicit stipulation in Israeli legislation that the State Comptroller should examine moral integrity is unique.38 33

See Section 1(c), State Comptroller Law (amendment), 1952, SH 104, 5 August 1952. Navot, State Comptroller Eliezer Goldberg and the Examination of the Moral Integrity of the Public Service, Overseeing State Authorities. 35 Nebenzahl, The Significance of Moral Integrity in the State Comptroller Law, in: Lifschitz/Ganon/Hecht (eds.), Avraham Weinshall – Anthology of Articles in his Memory, 133. 36 Bostan/Firtescu/Nicula, The Role of Supreme Audit Institutions in Promoting and Strengthening Ethics and Integrity in the Public Sector, Journal for Ethics in Social Studies 2 (2018), 43, pp. 46 – 48; Borge, The Role of Supreme Audit Insitutions (SAI’s) in Combating Corruption, 9th International Anti-Corruption Conference, p. 3. 37 Mauro, Corruption and Growth, Quarterly Journal of Economics 110 (1995), 681. 38 To the best of our knowledge, Israel is the only country where statutory law, as interpreted, grants such wide and far-reaching authority to its SAI. 34

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The term “moral integrity” is mentioned five times in the Basic Law and the State Comptroller Law, but no definition of the concept appears in either law. There are, however, some references to the meaning of the expression in Supreme Court rulings and in the academic legal literature. In the Sheves case, Chief Justice Aharon Barak noted that “moral integrity” refers to “a public servant acting in a fair and honest manner.”39 According to the late Justice Haim Cohn, there exist three types of infringements of “moral integrity”: criminal, disciplinary, and moral.40 Justice Miriam BenPorat, a former State Comptroller, wrote that “the term ‘moral integrity’ encompasses the moral and fair behavior befitting public servants and holders of public office.”41 As we will elaborate below, when suspicions arise about possible criminal conduct, the State Comptroller is required to bring those suspicions to the attention of the Attorney General as the Comptroller has no authority to act in those areas. But any activity that amounts to a deviation from the behavior expected of public servants can be considered an infringement of moral integrity. As defined by a leading Israeli scholar on this matter, the State Comptroller’s role is to investigate moral integrity “‘in the ‘twilight zone’, i. e. those gray areas between criminal offenses and indications of incorrect or inappropriate administration.”42 Based on the various approaches, the violation of moral integrity can be defined as any criminal or disciplinary offense or action that does not conform to the rules of ethics and the basic principles of public law, such as actions that are: arbitrary, discriminatory, unreasonable, disproportionate, unfair, partial or carried out without authority. They may be carried out in bad faith, or be based on extraneous considerations. The above definitions suggest that behavior consistent with moral integrity is the opposite of corrupt behavior. Corruption can take many forms, and its definition depends, among other things, on the social culture which defines what is allowed and what is forbidden in a society, both legally and ethically. In the context of government, corruption includes the use of power to obtain personal gain or benefit a group to which the holder of power owes allegiance43, regardless of whether it is on a large or small scale, done passively or actively, is planned and systematic or takes place only occasionally.44 Since the early days of the State of Israel, State Comptrollers have examined moral integrity and published scathing audit reports, for example, regarding financial and political collusion, political appointments and other types of nepotism, misuse of 39

F.H (Crim.) 1397/03 State of Israel v. Sheves, IsrSC 59(4) 385, 410 (2004). Cohn, Reflections on Moral Integrity, Mishpat Umimshal – Law and Government in Israel 2 (1995), 403, p. 412. 41 Ben-Porat, Basic Law: The State Comptroller, p. 230. 42 Friedberg, The Place of the State Audit in the examination of moral integrity in Israel’s Public Sector, The State Audit in Israel – Theory and Practice, 274, pp. 274 – 278. 43 Dye/Stapenhurst, Pillars of Integrity, The Economic Development Institute of the World Bank, p. 2. 44 Kayrak, Evolving Challenges For Supreme Audit Institutions In Struggling With Corruption, Journal of Financial Crime 15 (2008), 60, p. 61. 40

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public funds, and conflicts of interest. Such moral integrity audits promote the fight against public corruption in two ways. Firstly, audits expose acts of corruption and brings them to the public’s attention. Secondly, audits promote the formulation of appropriate norms of behavior for public officials and the creation of an adequate culture of governance that condemns corruption. In this way, state moral integrity audits contribute to the eradication of corruption both by deterrence and by educating public servants.

III. Real-Time Auditing Throughout their history, most SAIs have focused on two types of audits of the executive branch:45 pre-audit (also called a priori, ex ante, or preventive audit) and the more common post-audit or after-the-fact audit (also known as ex post audit). The two types are described in the Lima Declaration of Guidelines on Auditing Precepts of 1977, issued by INTOSAI.46 It is noteworthy that real-time auditing is a departure from traditional SAI practice because it audits the work of government agencies not retrospectively but as it unfolds.47 Neither the Basic Law: The State Comptroller, nor the State Comptroller Law, makes any reference to the Comptroller’s authority to conduct audits in the course of unfolding events. Nevertheless, given the Comptroller’s wide-ranging authority, legal status, and independence, and in the absence of any limitation or prohibition upon conducting real-time audits, the general assumption is that the State Comptroller of Israel has the authority to determine the schedule of its audits, and has the authority to conduct real-time audits.48

45

This concerns the timing of the execution of audits, not the type of audit (financial, compliance, controls, performance, forensic, computer, etc.). 46 The declaration states that each country should choose whether or not its SAI can conduct pre-audits. By contrast, “post-audit is an indispensable task of every Supreme Audit Institution regardless of whether or not it also carries out pre-audits”. See Lima Declaration, 1977, section 2(4). 47 Explicit recognition was granted to real-time audits only in 2013, in ISSAI 100, which set out the fundamental principles of public sector auditing. Section 23 of ISSAI 100 provides that: “SAIs may carry out audits or other engagements on any subject of relevance to the responsibilities of management and those charged with governance and the appropriate use of public resources. These engagements may include reporting on the quantitative outputs and outcomes of the entity’s service delivery activities, sustainability reports, future resource requirements, adherence to internal control standards, real-time audits of projects or other matters. SAIs may also conduct combined audits incorporating financial, performance and/or compliance aspects” (emphasis added). 48 This assumption is consistent with international standards. The Mexico Declaration on SAI Independence from 2007 (formerly known as ISSAI 10) determined that “SAIs are free to decide on the timing of their audit reports except where specific reporting requirements are prescribed by law.”

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The current view in Israel on this issue is that the decision to initiate an audit during or after an event is one of many considerations the Comptroller must consider when deciding to initiate an audit. It follows that although Comptrollers can instruct their staff to conduct real-time audits, they do so cautiously in order to refrain from interfering with the to be audited bodies exercising their authority and meeting their responsibilities.49 Addressing the connection between real-time audits and the prevention of corruption, Josef Haim Shapira, former State Comptroller of Israel, concluded as follows: When the Audit Institution receives information from the public, or when the Audit Institution identifies “warning signs” as an observer on the sidelines, it has no other choice but to conduct a real-time audit […] For many matters concerning the public sphere, there is not always a directly injured party who will bring his complaints to the court and […] In the absence of an injured party who refers the matter to the courts, as stated, real-time intervention by the State Comptroller, based on information he has received about serious deficiencies that require immediate intervention, is the most effective way to protect the public interest and prevent corruption or grave irreversible damage originating from an essential defect that was identified.50

A distinct advantage of real-time audits, which serves as a justification for them, is their contribution to promoting moral integrity and preventing corruption. An afterthe-fact audit does not help prevent the prohibited behavior, and often the discovery of a defect after the prohibited act has been completed does not serve to correct it for the future. Real-time audits have the advantage of the early detection of defects, whereas after the completion of dubious acts it may not be possible to discover and prevent them.

IV. Uncovering Suspected Criminal Acts In the course of audits, SAI staff often uncovers facts suggesting the likelihood of criminal conduct. INTOSAI has taken the position that “the core mission of its members is government audit […] SAIs are neither a substitute for law enforcement nor for public prosecution agencies. If it is part of their statutory mandates, SAIs may assist those institutions in fighting crime as part of their audit activity; however, they must never be called upon to replace those institutions.”51

49 For a detailed discussion of real-time state audits in Israel, see Rabin/Peled, Real-Time Audit of Government Operations. 50 Nahir, Questions and answers with the State Comptroller and Ombudsman of Israel, Israel Journal of State Audit 63 (2018), 5, pp. 36 – 37. 51 The International Organization of Supreme Audit Institutions, INTOSAI: 50 Years (1953 – 2003) 147 (2004); Borge, The Role of Supreme Audit Insitutions (SAI’s) in Combating Corruption, 9th International Anti-Corruption Conference, p. 8.

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In a manner consistent with the INTOSAI position, the Israeli State Comptroller does not have the legal authority to carry out any investigatory activity or criminal enforcement.52 According to Section 14(c) of the State Comptroller Law: If the audit work gives rise to a suspicion that a criminal act has been committed, the Comptroller shall notify the Attorney General of the matter and may do so if the audit work gives rise to a suspicion that a disciplinary infraction, as defined by law, has been committed; the Attorney General will inform the Comptroller and the Committee of the manner in which the matter was handled within six months of being notified.

Over the years and based upon Section 14(c) of the State Comptroller Law, when suspicion of criminal acts arose during an audit, they were brought before the Attorney General. In some past cases, the notification was followed by the Attorney General ordering an investigation, and some investigations have led to criminal trials53 or disciplinary hearings.54 By using this mechanism wisely, the State Comptroller can initiate processes that contribute significantly to the fight against corruption, making those who commit crimes face appropriate legal consequences.

V. The Authority to Issue Orders to Protect Whistleblowers The Fifth Amendment to the State Comptroller Law, from 1971, added a seventh chapter to the law that assigned yet another function to the State Comptroller: investigation of complaints from the public.55 This function was also incorporated into Basic Law: The State Comptroller. Section 4 of the Basic Law states: The State Comptroller shall investigate complaints from the public about bodies and persons, as provided by or under the law; in this capacity the State Comptroller shall bear the title of Ombudsman.

Similarly to judicial institutions, an Ombudsman has the function of protecting the person’s rights by examining the issues arising between the individual and public au-

52 This lack of authority is not unique to Israel. Many countries have defined procedures for dealing with suspicions of criminal conduct that arise during the work of SAIs. See ReichbornKjennerud/Carrington et al., Supreme Audit Institutions’ Role in Fighting Corruption, in: The 15th Biennial CIGAR Conference 2015. 53 See, e. g., the widely covered court decision in the criminal prosecution of the Director General of the Interior Ministry at the time, Aryeh Deri, CrimC 1872/99 (Jerusalem) State of Israel v. Deri (24. 9. 2003); see also, CrimC (Tel Aviv) 66313-12-15 Hevroni v. State of Israel (15. 12. 2016). 54 For further discussion of section 14(c) of the State Comptroller Law, see Rabin/Winograd, State Audit Work that Raises a Suspicion of Criminal Conduct – the Case of Israel, Israel Journal of State Audit 63 (2018), 87. 55 Becker, The Birth of the Modern Ombudsman Concept, Israel Journal of State Audit 63 (2018), 115.

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thorities. Any person may submit a complaint to the Ombudsman56 against an audited body or employee, official, or holder of any position in such a body.57 Another amendment to the State Comptroller Law, from 1981, expanded the Ombudsman’s authority to protect whistleblowers, i. e., employees who, in good faith and following proper procedure, have exposed acts of corruption, serious breaches of the law, or serious violations of the rules of proper administration in the workplace, when such actions result in their victimization or dismissal by their superiors.58 The same amendment also authorized the Ombudsman to protect internal auditors who have been victimized after dutifully meeting their professional responsibilities.59 According to section 45C of the law, Ombudsmen are authorized to issue any order they deem correct and just, including provisional orders, to protect employee rights. If a whistleblower is dismissed for disclosing corruption, the Ombudsman is authorized to void the dismissal or to award special compensation to the employee, in money or rights. The Ombudsman is also authorized to “order the transfer of the employee to another post in the service of his employer.” Furthermore, as part of the authority to issue orders, the Ombudsman tends to issue provisional orders to compel employers to pay compensation should employees choose to resign because of the harm they have suffered following the exposure of the corruption.60 Disclosures provided by whistleblowers are one of the most useful sources of information for detecting fraud and corruption.61 The fight against corruption is greatly assisted by the willingness of people internal to organizations, who are part of the governing system, making disclosures about acts of corruption.62 The Israeli Ombudsman is the address for employees who seek protection against harassment because of providing information about acts of corruption, violations of the law, or any injury to proper administration.

56

Section 33, State Comptroller Law. Section 36, State Comptroller Law. 58 Section 45 A(1), State Comptroller Law. 59 Section 45 A(2), State Comptroller Law. 60 For example, in 2019, 57 complaints were filed by employees who claimed that their superiors had infringed their rights as a result of their exposing acts of corruption. Three complaints received permanent protection orders from the Ombudsman and six received provisional protection orders. The provisional orders were designed to prevent harm to the complainants until the completion of the investigations (2019 Report of the Commissioner for Public Complaints, Annual Report no. 46, pp. 30, 102, published 30. 6. 2020). See also Nahir, Questions and answers with the State Comptroller and Ombudsman of Israel, Israel Journal of State Audit 63 (2018), 5, pp. 13 – 17. 61 Dye, Corruption and Fraud Detection by Supreme Audit Institutions, in: Shah (ed.), Performance Accountability and Combating Corruption, 303, p. 313. 62 Barak-Erez, Administrative Law and the Struggle Against Government Corruption, Mishpatim 37 (2007), 667, p. 690. 57

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VI. Audits of Political Parties and Candidate Financing Section 5 of the Basic Law states that “the State Comptroller shall carry out other functions as provided by law.” Over time, and by virtue of this section, the Knesset has expanded the State Comptroller’s role by assigning additional functions that deviate from the traditional definition of state auditing. For example, various statutes grant the State Comptroller the authority to audit election campaigns and party financing.63 Under these statues, the State Comptroller can review the financial records of parties running in Knesset elections, factions and lists participating in local authority elections, candidates seeking to be elected to head regional councils, and candidates running in party primaries. The Comptroller can also audit the current accounts of parties already represented in the Knesset. The regulations and limitations applying to persons running for office are found in the relevant statutes and in the instructions that the State Comptroller occasionally publishes. As part of these audits, the Comptroller examines whether the parties and candidates have managed their finances in accordance with the law, whether expenditures have exceeded the maximum amounts allowed, and whether contributions met the limitations set by law, determined based on the identity of the contributors and the sums contributed. The Comptroller’s findings are published in a report showing whether each party and candidate acted in accordance with the law. The Comptroller can subsequently levy fines on candidates running in party primaries as well as on the parties and lists that did not abide by the directives of the law. The Comptroller may also revoke some of the state funding allocated to such parties or factions. An example of the importance of auditing political parties to prevent government corruption in Israeli elections is the verdict in the Pinhasi case. MK Pinhasi was prosecuted for offenses committed during an election campaign, including, among other things, charges of improper use and accounting for money received as party financing before the elections,64 as well as false reporting to the State Comptroller in order to receive financing funds provided to political parties.65 Donations to political bodies and the funding of parties and candidates, especially during elections, are fertile ground for corrupt actions at the interface between capital and power (crony capitalism). Thus, the authority given to the State Comptroller to conduct audit in the field of political parties and candidate financing effectively promotes efforts to curb corruption.

63

Parties Financing Law, 1973; Local Authorities Law (Election Financing), 1993; Parties Law, 1992. 64 Shamgar, Judicial Review of Knesset Decisions by the High Court of Justice, Israel Law Review 28 (1994), 43, p. 46. 65 HCJ 1843/93 Pinhasi v. Knesset Israel, IsrSC 49(1) 661 (1995).

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VII. Prevention of Conflicts of Interest: Ministers and Deputy Ministers The actions of public officials experiencing a conflict of interest can compromise their moral integrity and even amount to an act of corruption that exceeds the criminal threshold. Israeli administrative law prohibits being in a situation where a conflict of interest may arise, in order to “prevent evil before it happens.”66 However, despite the great power vested in ministers and deputy ministers, for many years no comprehensive and detailed arrangement was established regarding the limitations and prohibitions that apply to these officials to prevent possible conflicts of interest. In 1977, the government adopted a set of standards known as the Rules of Ethics for the Prevention of Conflicts of Interest of Ministers and Deputy Ministers (hereinafter, “the Rules”).67 Based on recommendations included in the Report of the Public Committee, headed by late Judge Shlomo Asher, the Rules consist of provisions for the conduct of ministers and deputy ministers when discharging their duties, primarily the obligation of discharging their duties fairly and without bias, the avoidance of conflicts of interest or even a semblance thereof, and the prohibition on engaging in additional employment. The Rules also established restrictions on the management of the financial affairs by ministers and their deputies, as well as the control of assets, including those held by their families. Furthermore, the Rules prescribe that ministers and their deputies be subject to the supervision of the State Comptroller in complying with these provisions. The rules even require the State Comptroller to appoint a committee authorized to discuss ministers’ and deputy ministers’ requests for permits to deviate from the Rules (the Permits Committee).68 The State Comptroller’s part in verifying compliance with the Rules is a significant and an important pillar in maintaining the moral integrity of ministers and deputy ministers whose conduct is supposed to serve as an example to the public.

VIII. The State Comptroller of Israel: A Pillar of Good Governance and Moral Integrity SAIs are important gatekeepers whose roles have evolved over the years, and today they are no longer bound to the traditional role of financial regularity audits. The first wave of expansion in the functions of the State Comptroller was in the direction of performance audits and assessments of the quality and the legality of government agency activities. A second wave concerned SAIs developing a growing 66 HCJ 531/79 Likud Faction in Petach Tikvah Municipality v. Petach Tikvah Municipal Council, IsrSC 34(2) 566, 571 (1980). 67 The rules have since been revised on occasion. The version of the Rules currently effective is entitled Rules of Ethics for the Prevention of Conflicts of Interest of Ministers and Deputy Ministers, 2003. 68 Sections 18 – 19 of the rules.

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awareness of their role in curbing corruption. Their public status, the powers granted to them by law, and the international Professional Pronouncements make it possible for them to contribute significantly to this effort. The insights provided by the Israeli experience are very instructive in this regard. First, the decision of the Knesset to explicitly authorize the State Comptroller to conduct moral integrity audits and the additional duties assigned to the Comptroller over the years reflect the idea that the Comptroller plays an essential role in the fight against corruption. These authorities also underscore the understanding that curbing corruption is a duty the Comptroller has toward the Knesset and the public. Thus, national parliaments can act to enshrine in legislation the notion that SAIs are expected to take a significant role in the fight against corruption. Second, the duties assigned to the State Comptroller of Israel were spelled out before the fight against corruption by SAIs became a global trend. Thus, the way the role of State Comptroller of Israel has developed in fighting corruption is a unique one that can be of interest to other SAIs. Our discussion of the State Comptroller of Israel has shown the appropriateness of the powers granted to this office for promoting lawful administration and uncovering and uprooting of improper government conduct. This review demonstrates how SAIs can become both important constitutional players in curbing corruption as well as pillars of good governance and moral integrity. Bibliography Armstrong, Elia Yi (ed.): Citizen Engagement Pracitces by Supreme Audit Institutions, New York 2013. Barak-Erez, Daphne: Administrative Law and the Struggle Against Government Corruption, Mishpatim Vol. 37, 2007, pp. 667 – 700 (Hebrew). Becker Isaac: The Birth of the Modern Ombudsman Concept, Israel Journal of State Audit Vol. 63, 2018, pp. 115 – 123. Ben-Porat, Miriam: Basic Law: The State Comptroller, Jerusalem 2005 (Hebrew). Borge, Magnus: The Role of Supreme Audit Institutions (SAI’s) in Combination Corruption, 9th International Anti-Corruption Conference, Durban, South Africa 1999. Bostan, Ionel/Firtescu, Bogdan Narcis/Nicula, Vasile Cosmin: The Role of Supreme Audit Institutions in Promoting and Strengthening Ethics and Integrity in the Public Sector: Possible Models and Tools to Follow, Journal for Ethics in Social Studies Vol. 2, 2018, pp. 43 – 52. Cassese, Sabino: The Administrative State in Europe, in: Cassese, Sabino/von Bogdandy, Armin/ Huber, Peter (eds.), The Max Planck Handbooks in European Public Law, Vol. 1: The Administrative State, Oxford 2017, pp. 57– 97. Cohn, Haim H.: Reflections on Moral Integrity: Misphat Umimshal – Law and Government in Israel Vol. 2, 1995, pp. 403 – 442 (Hebrew).

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Dye, Kenneth M.: Corruption and Fraud Detection by Supreme Audit Institutions, in: Shah, Anwar (ed.), Performance Accountability and Combating Corruption, World Bank, Washington D.C. 2007, pp. 303 – 321. Dye, Kenneth M./Stapenhurst Rick: Pillars of Integrity: The Importance of Supreme Audit Institutions in Curbing Corruption, The Economic Development Institute of the World Bank, Washington D.C. 1998. Elkins, Zachary/Ginsburg, Tom: Characteristics of National Constitutions, Version 3.0., Comparative Constitutions Project, 2021, last modified: May 20, 2021, available at: www.comparativeconstitutionsproject.org. Everett, Jeff/Neu, Dean/Rahaman, Abu-Shiraz: Accounting and the Global Fight against Corruption, Accounting, Organizations & Society Vol. 32, 2007, pp. 513 – 542. Friedberg, Asher: The Place of the State Audit in the examination of moral integrity in Israel’s Public Sector, The State Audit in Israel – Theory and Practice, 3rd edition, Jerusalem 1995, pp. 274 – 278 (Hebrew). Kayrak, Musa: Evolving Challenges For Supreme Audit Institutions In Struggling With Corruption, Journal of Financial Crime Vol. 15, 2008, pp. 60 – 70. Klitgaard, Robert E.: Bolivia – Healing Sick Institutions in La Paz, Governance and the Economy in Africa: Tools for Analysis and Reform of Corruption, Maryland 1996. Mauro, Paolo: Corruption and Growth, Quarterly Journal of Economics Vol. 110, 1995, pp. 681 – 712. Mersel, Elie P./Guttman, Matan A./Rodas, Alon: From State Comptroller to National Human Rights Institution – A Short but Necessary Path, Israel Yearbook on Human Rights Vol. 48, 2018, pp. 161 – 187. Nahir, David: Questions and answers with the State Comptroller and Ombudsman of Israel, Judge (ret.) Joseph Haim Shapira, Israel Journal of State Audit Vol. 63, 2018, pp. 5 – 44. Navot, Doron: State Comptroller Eliezer Goldberg and the Examination of the Moral Integrity of the Public Service, Overseeing State Authorities, Jerusalem 2023, pp. 153 – 174 (Hebrew). Nebenzahl, Yitzhak Ernst: The Significance of Moral Integrity in the State Comptroller Law, in: Lifschitz, Naftali/Ganon, Yitzhak/Hecht, Reuven (eds.), Avraham Weinshall – Anthology of Articles in his Memory, Haifa 1997, pp. 133 – 139 (Hebrew). Rabin, Yoram/Mersel, Elie P./Rodas, Alon: Auditing, in: Grote, Rainer/Lachenmann, Frauke/ Wolfrum, Rüdiger (eds.), Max Planck Encyclopedia of Comparative Constitutional Law, Oxford 2020, pp. 1 – 12. Rabin, Yoram/Peled, Roy: Keeping it Real: Real-Time Audit of Government Operations and the Lessons to be Learned from Israel’s Practice, 2023. Rabin, Yoram/Winograd, Tehila: State Audit Work that Raises a Suspicion of Criminal Conduct – the Case of Israel, Israel Journal of State Audit Vol. 63, 2018, pp. 87 – 114. Reichborn-Kjennerud, Kristin/Carrington, Thomas, et al.: Supreme Audit Institutions Role in Fighting Corruption, The 15th Biennial CIGAR Conference 2015, Valletta, Malta 2015. Shamgar, Meir: Judicial Review of Knesset Decisions by the High Court of Justice, Israel Law Review Vol. 28, 1994, pp. 43 – 56.

The Role of the State Comptroller of Israel in Combating Government Corruption 131 Stapenhurst, Rick/Titsworth, Jack: Parliament and Supreme Audit Institutions, The Role of Parliament in Curbing Corruption, Washington D.C. 2006, pp. 101 – 109. Waldo, Dwight: The Administrative State: A Study of the Political Theory of American Public Administration, New York 1948.

Erosion of the Rule of Law: Curtailing the Powers of Constitutional Courts By Stefanie Schmahl* On 13 February 2023, Yoram Danziger, former Justice of the Supreme Court of Israel, gave a very interesting lecture as part of a webinar jointly organized by the German-Israeli Lawyers Association and the German Federal Bar Association.1 I had the honour and pleasure of attending his lecture virtually.

I. Restrictions on the Powers of the Supreme Court in Israel by the Knesset’s February 2023 Draft Law In his presentation, Yoram Danziger addressed the judicial reform planned by the government formed on 29 December 2022 under Prime Minister Benjamin Netanyahu. According to the draft law, which passed its first reading in the Knesset on 21 February 2023, despite nationwide protests,2 the Israeli Supreme Court’s decisions can be overturned in most cases by the Knesset with a simple majority. The so-called ‘override clause’ would give the smallest possible majority, 61 out of 120 members of the Knesset, the ability to invalidate Supreme Court rulings. The selection of Supreme Court Justices will also be changed. In particular, the Judicial Selection Committee will be recomposed. Currently, the committee consists of three Supreme Court Justices, one of whom is the President of the Supreme Court; two members of the Israel Bar Association; two ministers, one of whom is the Minister of Justice; and two members of the Knesset elected by secret ballot. Each of the four bodies represented on the committee (the Supreme Court, the Bar Association, the government and the legislature) elects its own representatives. None of the bodies has a majority on the committee. According to the proposed bill, the future compo-

* Prof. Dr. Stefanie Schmahl, LL.M. (E) holds the Chair of German and Foreign Public Law, Public International Law and European Law at the University Würzburg. 1 The webinar is available at https://www.dijv.de/de/article/187.zoom-veranstaltung-zurumstrittenen-justizreform-in-israel.html. 2 See Umstrittenes Gesetz zur Justizreform nimmt erste Parlamentshürde, Frankfurter Allgemeine Zeitung Online, 21. 2. 2023; Knesset stimmt zentralen Teilen von umstrittener Justizreform zu, Zeit Online, 21. 2. 2023; Neue Proteste gegen Justizreform, Jüdische Allgemeine, 1. 3. 2023.

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sition of the Judicial Selection Committee will be as follows:3 Of the nine future members, three will be ministers; three will be members of the Knesset; and three will be Supreme Court Justices, namely the Supreme Court President, along with two retired Justices to be appointed by the Minister of Justice, with the consent of the Supreme Court President. The necessary majority for appointing judges to the Supreme Court will be five committee members (versus seven out of nine until today). Thus, members of the government and the government majority in the Knesset will form the majority on the committee. Both proposed amendments aim to limit the powers and independence of the Israeli Supreme Court, placing it instead in the hands of the majority in government. This populist initiative strikes at the heart of the democratic State of Israel.4 It would no longer be up to the Supreme Court alone to decide whether a law is incompatible with Israel’s constitution-like Basic Laws, but rather the legislature by a simple majority, usually against the votes of the opposition. Since it is obvious that the governing majority considers its own laws to be in accordance with the Basic Laws, decisions of the Supreme Court would often be futile, if not a waste of paper. The new modalities for electing judges would also play into the hands of the government majority. This jeopardizes not only the independence of the judiciary, but also the entire system of checks and balances. Yoram Danziger referred to it as the worst constitutional crisis since the founding of the State of Israel. The draft law poses an acute threat to the constitutional and democratic character of the Jewish State.5 According to Danziger, if the proposed law is enacted, there is no effective means to challenge it. This is particularly true because in Israel, in the absence of a formalized constitution as a yardstick, a law cannot be declared unconstitutional in a formal sense.6 Furthermore, Israeli democracy does not have a bicameral legislature, in which an ‘upper house’ deliberates on legislation proposed by elected representatives of the ‘lower house’. Nor does Israel have a federal structure in which power is divided between national and regional levels of government. Apart from the Knesset, there is no other legislative body that could possibly stop the planned amendments to the law regarding the Israeli Supreme Court. The Israeli system of government has few mechanisms for dispersing or limiting political power. As the government almost always has a majority in the Knesset,

3 See Knesset News: Approved in first reading: Change in makeup of Judges Selection Committee, no judicial review of basic laws, The Knesset, 21. 2. 2023. On previous reform proposals, see Weill, Verfassungsblog, 25. 1. 2023. 4 See Weill, Verfassungsblog, 18. 11. 2022. 5 In this respect, see also the interview by Maximilian Steinbeis with Frances Raday, Verfassungsblog, 3. 3. 2023; as well as Shany, Süddeutsche Zeitung Online, 3. 3. 2023. 6 The Israel Democracy Institute has, however, submitted a draft on a ‘constitution of consensus’ in the past and is currently preparing a revised proposal for a constitution for the State of Israel, see Completing Israel’s Constitutional Process, A Proposal by the Israel Democracy Institute, 13. 2. 2023.

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the separation between the legislative and executive branches is relatively weak.7 The only limitation on the exercise of political power is the role of the Supreme Court in upholding the rule of law, interpreting the Basic Laws and applying the fundamental concepts of the legal system.8 Therefore, the February 2023 draft law, with its curtailment of the Supreme Court’s powers, is all the more tragic for the separation of powers in Israel.

II. Legal Considerations on a Comparable Situation in the Federal Republic of Germany As a German legal scholar, I am not in a position to comment on the Israeli legal system with sufficient expertise. I will therefore concentrate in this contribution on the question of whether a comparable situation could arise under the law of the Federal Republic of Germany: Like the Supreme Court of Israel, the German Federal Constitutional Court is highly respected both nationally and internationally. However, that does not mean that the Federal Constitutional Court could not also get into trouble if political and social paradigms changed, especially if a populist majority came to power. In Germany, too, populist parties have been gaining popularity for about a decade. It is therefore not far-fetched to ask whether, and if so, to what extent, a comparable curtailment of the competences of the Federal Constitutional Court would be permissible within the framework of the German constitution, called the Basic Law (Grundgesetz, GG). First of all, it should be noted that the fundamental decision in Article 92 GG to establish the Federal Constitutional Court cannot be revised. This is because the Federal Constitutional Court ensures the primacy of the constitution over the legislature.9 The precedence of the constitution is guaranteed with regard to the binding nature of fundamental rights in Article 1(3) GG; for all other areas it can be found in the principle of the rule of law in Article 20(3) GG. The legislature may therefore not evade its obligations to the constitutional order in any area.10 Abolishing the Federal Constitutional Court’s control over the legislature would therefore be unconstitutional. However, changes in the composition, the internal organization and the scope of the competences of the Federal Constitutional Court remain possible. In principle, such changes can even be made by an ordinary law, as Articles 93(3) and 94(2) GG make clear. The Act on the Federal Constitutional Court (Bundesverfassungsge7

For the above, cf. also Tibon, Haaretz Online, 22. 2. 2023. See Weinrib/Weinrib, Verfassungsblog, 10. 2. 2023. Further see Walter, Beck aktuell, 2. 3. 2023. 9 Klein, Verfassungsgerichtsbarkeit und Verfassungsprozessrecht, in: Benda/Klein/Klein (eds.), Verfassungsprozessrecht, § 1 mn. 19. 10 Dreier, in: Dreier (ed.), Grundgesetz, Art. 79(3) mn. 51. 8

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richtsgesetz, BVerfGG), which was enacted on the basis of Article 94(2) GG, can be amended by a simple majority in the Bundestag (House of Representatives). For example, the legislature can change the number of judges and senates of the Federal Constitutional Court, the distribution of responsibilities among the senates and the quorums required for judicial decision-making. Such amendments have already taken place in the past.11 Since its foundation in 1951, the Federal Constitutional Court has always been designed as a ‘twin court’, with two senates facing each other.12 However, the internal structure of the Court has undergone several changes. In the original version of the BVerfGG of 1951, each senate consisted of twelve judges.13 From 1956, each senate had ten judges for a transitional period, until the number of judges was further reduced to eight with effect from 1963.14 The term of office of twelve years without the possibility of re-election was not included in § 4 BVerfGG until 1970.15 Previously, the judges of the Federal Constitutional Court were subject to a legal differentiation in their terms of office, with reference to the different professional backgrounds provided for in Article 94(1) (1) GG (‘federal judges and other members’). Professional judges of the federal courts were elected as judges of the Federal Constitutional Court for the duration of their terms of office there; the other members were elected for a fixed term of eight years.16 The legislature can also intervene in the competences of the Federal Constitutional Court, for example by abolishing certain types of proceedings.17 However, this requires a law amending the constitution, which, according to Article 79(2) GG, presupposes a two-thirds majority in each of the two legislative bodies, i. e. the Bundestag and the Bundesrat (Federal Council). In addition, the scope of the eternity clause in Article 79(3) GG, which extends to fundamental principles of State structure laid down in Article 20 GG, must not be touched. Article 20(3) GG, which explicitly includes the principle of the separation of powers as a fundamental organizational principle of the Basic Law,18 can therefore not be changed, at least in its core content, under the aegis of the Basic Law. This affects how the constitution-amending legislature can re-organize the competences of the Federal Constitutional Court.

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A concise overview of the amendment history can be found at Barczak, Einleitung, in: Barczak (ed.), BVerfGG, mn. 98 et seq. 12 Klein, Die Richter, in: Benda/Klein/Klein (eds.), Verfassungsprozessrecht, § 5 mn. 129. 13 See Law of 12. 3. 1951, Federal Law Gazette (Bundesgesetzblatt, BGBl.) 1951 I, p. 243. 14 See Law Amendment of 21. 7. 1956, BGBl. 1956 I, p. 662. 15 See Law Amendment of 21. 12. 1970, BGBl. 1970 I, p. 1765. 16 Schwarz, Verfassungsprozessrecht, § 4 mn. 83. For more detail, see Klein, Die Richter, in: Benda/Klein/Klein (eds.), Verfassungsprozessrecht, § 5 mn. 132. 17 See Kluckert, Verfassungsgerichtsbarkeit, in: Stern/Sodan/Möstl (eds.), Das Staatsrecht der Bundesrepublik Deutschland im europäischen Staatenverbund, § 52 mn. 29. 18 See collection of decisions of the Federal Constitutional Court (Bundesverfassungsgerichtsentscheidungen, BVerfGE) 3, 225 (247). Cf. also Schulze-Fielitz, in: Dreier (ed.), Grundgesetz, Art. 20 mn. 67.

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1. Admissibility of Changing the Binding Effect of the Federal Constitutional Court’s Decisions? § 31 BVerfGG is the central provision on the effect of Federal Constitutional Court decisions and thus also on the role of the Federal Constitutional Court in relation to the other organs of the State as well as to the rest of the judiciary. As is customary in general procedural law, the decisions of the Federal Constitutional Court acquire formal and substantive legal force (res judicata).19 The fact that the decisions of the Federal Constitutional Court have an extended binding effect (§ 31(1) BVerfGG) and, under certain circumstances, even the force of (substitute) statute law (§ 31(2) BVerfGG), is a special feature of German procedural law. These two legal institutions serve to ensure the primacy of the Basic Law through an effective constitutional jurisdiction.20 While the effect of decisions of the Federal Constitutionals Court having the force of law is limited to the types of proceedings listed in § 31(2) BVerfGG, the extended binding effect under § 31(1) BVerfGG applies comprehensively to all types of proceedings before the Federal Constitutional Court. According to § 31(1) BVerfGG, the decisions of the Federal Constitutional Court are binding upon the constitutional organs of the Federation and the Länder (States), as well as on all courts and institutions with public authority. The core effect of the provision is that the legal force of decisions of the Federal Constitutional Court extends beyond the persons involved in proceedings. In this way, the supremacy of the constitution is to be secured beyond the concrete legal dispute.21 In addition to the constitutional organs, all State bodies are bound, including all authorities and courts. This far-reaching decision-making effect means that the Federal Constitutional Court has significant powers, while at the same time limiting the scope of action of the executive and legislative branches as well as specialized courts.22 Binding effect means that all State organs, authorities and courts must in comparable situations base their own actions on the main reasons (tragende Gründe)23 of a Federal Constitutional Court’s decision as a binding interpretation of the Basic Law24.25 In other words, the addressees must comply with the constitutional law that has been bindingly determined by the Federal Constitutional Court. For example, as a result of 19

BVerfGE 20, 56 (86); 78, 320 (328); 104, 151 (196). See, e. g., Heusch, in: Burkiczak/Dollinger/Schorkopf (eds.), BVerfGG, § 31 mn. 13; Bethge, in: Schmidt-Bleibtreu/Klein/Bethge (eds.), BVerfGG, § 31 mn. 3. 21 See Schlaich/Korioth, Das Bundesverfassungsgericht, mn. 482. 22 Rightly so, von Ungern-Sternberg, in: Walter/Grünewald (eds.), Beck’scher Online Kommentar zum BVerfGG, § 31 mn. 2. 23 What is to be understood by ‘main reasons’ of a decision is explained, for instance, in BVerfGE 1, 14 (37); 104, 151 (197). 24 Dependent on the type of procedure, this may also include federal statutes. 25 For more detail, see Heusch, in: Burkiczak/Dollinger/Schorkopf (eds.), BVerfGG, § 31 mn. 67 et seq. 20

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this legal force, the legislature is obliged to correct a law that has been declared unconstitutional. In addition, the legislature must amend parallel statutes that are also unconstitutional.26 When restricting fundamental rights, authorities and courts must observe the limits set by the Federal Constitutional Court.27 The binding effect of § 31 BVerfGG must always be observed; it is not at the disposal or discretion of the addressees. It is true that the decisional effects of § 31 BVerfGG, since they are only laid down in an ordinary law, are not of a constitutional nature. However, there is broad consensus that non-observance of binding effect violates the principle of the rule of law in Article 20(3) GG. Those affected by a failure to comply with the Federal Constitutional Court’s decisions may therefore lodge constitutional complaints on the grounds of a violation of Article 2(1), read in conjunction with Article 20(3) GG.28 Furthermore, deliberate deviation from the binding effect may violate the right to effective legal protection under Article 19(4) GG.29 Against this background, it can certainly be argued that the complete abolition of the binding effect of Federal Constitutional Court’s decisions would violate the core of the rule of law principle in Article 20(3) GG. It would undermine, even destroy, the position of the Federal Constitutional Court in the German legal system. The same could apply if the binding effect of Federal Constitutional Court decisions were made dependent on a simple parliamentary majority. According to the eternity clause in Article 79(3) GG, the principle of the separation of powers cannot be abolished under the aegis of the Basic Law. 2. Admissibility of Changing the Modalities for Electing Judges of the Federal Constitutional Court? In contrast, different parameters may apply both to the election of judges of the Federal Constitutional Court as well as to the composition of the senates. Many details on the election of judges are left open in the Basic Law and are referred to the ordinary legislature. According to § 2(2) and (3) BVerfGG, the Federal Constitutional Court consists of two senates, each with eight members. The competences of the 26 See von Ungern-Sternberg, in: Walter/Grünewald (eds.), Beck’scher Online Kommentar zum BVerfGG, § 31 mn. 42; Heusch, in: Burkiczak/Dollinger/Schorkopf (eds.), BVerfGG, § 31 mn. 69. A different view is expressed by Bethge, in: Schmidt-Bleibtreu/Klein/Bethge (eds.), BVerfGG, § 31 mn. 166. 27 von Ungern-Sternberg, in: Walter/Grünewald (eds.), Beck’scher Online Kommentar zum BVerfGG, § 31 mn. 42. 28 See BVerfGE 40, 88 (93 f.); 115, 97 (108). Further see Klein, Entscheidungswirkungen, in: Benda/Klein/Klein (eds.), Verfassungsprozessrecht, § 42 mn. 1544; Heusch, in: Burkiczak/ Dollinger/Schorkopf (eds.), BVerfGG, § 31 mn. 61. A critical view is expressed by von Ungern-Sternberg, in: Walter/Grünewald (eds.), Beck’scher Online Kommentar zum BVerfGG, § 31 mn. 43. 29 Klein, Entscheidungswirkungen, in: Benda/Klein/Klein (eds.), Verfassungsprozessrecht, § 42 mn. 1544.

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two senates are fundamentally defined in § 14 BVerfGG. Put simply, the First Senate is responsible for norm controls, which essentially concern the compatibility of statute law with fundamental rights, and for constitutional complaints. In particular, the Second Senate is responsible for disputes over competences between the Federation and the Länder (States) as well as between the constitutional organs themselves.30 Since in the first years of the Federal Constitutional Court’s existence there were considerably more cases pending before the First Senate than before the Second Senate, § 14 BVerfGG was amended in 1956.31 Since then, both senates have jurisdiction over certain constitutional complaints. There is no longer a clear distinction between the former ‘fundamental rights senate’ and the ‘state court’. The 16 members of the Federal Constitutional Court are elected half by the Bundestag and half by the Bundesrat (cf. Article 94(1) (2) GG, § 5(1) (1) BVerfGG), which also alternately elect the President and Vice-President of the Court. At least three members of each senate must come from the federal courts so that their special judicial experience can flow into the case-law of the Federal Constitutional Court.32 According to § 3 BVerfGG, anyone who has reached the age of 40 and is qualified to hold judicial office under the German Judges Act is eligible for election as a constitutional judge provided that he or she is eligible for election to the Bundestag, which necessarily implies German citizenship.33 For reasons of separation of powers, persons elected may not be members of the Bundestag, the Bundesrat, the Federal Government or corresponding bodies of the Federal States (Länder).34 Since the amendment of § 4 BVerfGG in 1970, judges have been elected for twelve years; the age limit for office is 68 years. To ensure judicial independence, the re-election of judges is excluded under § 4(2) BVerfGG. The Basic Law does not contain any provisions on the quorum required for the election of judges. Rather the provisions in § 6(1) (2) and § 7 BVerfGG stipulate that (at least) a two-thirds majority is mandatory for the election of a constitutional judge both in the Bundestag and Bundesrat. The judges to be appointed by the Bundestag shall be elected by the plenum at the proposal of the Electoral Committee,35 by means of concealed voting cards and without debate (§ 6(1) (1) BVerfGG).36 In a de30

Schwarz, Verfassungsprozessrecht, § 4 mn. 41. See Law Amendment of 21. 7. 1956, BGBl. 1956 I, p. 662. 32 BVerfGE 65, 152 (157). See also Grünewald, in: Walter/Grünewald (eds.), Beck’scher Online Kommentar zum BVerfGG, § 2 mn. 18. 33 See Kluckert, Das Verfassungsgericht – das BVerfG, in: Stern/Sodan/Möstl (eds.), Das Staatsrecht der Bundesrepublik Deutschland im europäischen Staatenverbund, § 40 mn. 32. 34 These incompatibility rules are provided for by Article 94(1) (3) GG and § 3(3) BVerfGG. 35 The Electoral Committee for the Judges of the Federal Constitutional Court is set up at the beginning of each electoral period. Its twelve members are deputies from the parliamentary fractions represented in the Bundestag and are elected to the Electoral Committee according to the rules of proportional representation, see § 6(2) BVerfGG. 36 The waiver of the debate is intended to protect the integrity of the candidate, see Kluckert, Das Verfassungsgericht – das BVerfG, in: Stern/Sodan/Möstl (eds.), Das Staatsrecht 31

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cision of 2012, the Federal Constitutional Court declared that the previous method of electing judges by the Electoral Committee (without the participation of the plenum) was compatible with the Basic Law.37 However, it criticized the lack of transparency in the procedure,38 which is why judges have been elected directly by the plenum since 2015 and the Electoral Committee only makes preparatory proposals.39 To be elected, a candidate must receive a two-thirds majority of the votes cast, which must at the same time be at least a majority of the legal number of members of the Bundestag (see § 6(1) (2) BVerfGG). Because of the two-thirds majority required, a constitutional judge can usually only be elected by the Bundestag with the participation of the opposition.40 If the election fails, the Electoral Committee must submit a new proposal.41 In the Bundesrat, the judges are also elected by the plenum of this institution. The vote is usually based on a proposal submitted by the Electoral Commission of the 16 Ministers of Justice of the Länder.42 According to § 7 BVerfGG, the election of a person requires a two-thirds majority of the votes of the Bundesrat, i. e. 46 out of 69 votes. Overall, the required two-thirds majority in both legislative bodies (Bundestag and Bundesrat) is intended to ensure a political balance of the judges in the senates. Nevertheless, a change in the election procedure in such a way that a simple majority in the Bundestag or Bundesrat would be sufficient is not constitutionally excluded from the outset. In its original version of 1951, the BVerfGG provided for a three-quarters majority for the election of judges. The two-thirds majority was introduced by the first amendment of the BVerfGG in 1956;43 the government’s draft for the amendment of the BVerfGG at that time also sought to allow even a simple majority in a second ballot.44 For reasons of protection of the minority, however, this proposal was never implemented. The election of judges by both the Bundestag and the Bundesrat is required by the Basic Law (Article 94 (1) (2) GG) in order to take account of Germany’s federal state

der Bundesrepublik Deutschland im europäischen Staatenverbund, § 40 mn. 39; Grünewald, in: Walter/Grünewald (eds.), Beck’scher Online Kommentar zum BVerfGG, § 6 mn. 33. 37 BVerfGE 131, 230 (234 et seq.). 38 BVerfGE 131, 230 (236). 39 See Law Amendment of 24. 6. 2015, BGBl. 2015 I, p. 973. 40 See Schlaich/Korioth, Das Bundesverfassungsgericht, mn. 43; Klein, Die Richter, in: Benda/Klein/Klein (eds.), Verfassungsprozessrecht, § 5 mn. 142. 41 See Schwarz, Verfassungsprozessrecht, § 4 mn. 79. 42 See Grünewald, in: Walter/Grünewald (eds.), Beck’scher Online Kommentar zum BVerfGG, § 7 mn. 4; Schwarz, Verfassungsprozessrecht, § 4 mn. 65, 80. 43 Law Amendment of 21. 7. 1956, BGBl. 1956 I, p. 662. 44 See Printed Matter of the Bundestag (Bundestags-Drucksache) 7/1662. Further see Schlaich/Korioth, Das Bundesverfassungsgericht, mn. 44.

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structure.45 However, the quorum required for the election remains at the discretion of the legislature. The extent of this discretion has not yet been adequately researched. As a minimum, it would not be easy to justify why the current method of electing judges cannot be changed in a way that is compatible with the Basic Law. After all, as mentioned, the BVerfGG has already been amended in the past with regard to the composition of the senates and the term of the judges, in accordance with the requirements of the Basic Law, namely with Article 20(3) GG. Only if the election of the judges could be determined by a simple government majority in the Bundestag and, at the same time, by a simple majority in the Bundesrat, would the independence of the Federal Constitutional Court, and thus the separation of powers, be so seriously endangered that the eternity clause of Article 79(3) GG, which guarantees, inter alia, maintenance of the principle of the rule of law in Article 20(3) GG, could come into play.46 The independence of the Federal Constitutional Court is non-negotiable, not even for the legislature when amending the constitution. Of course, the content and legal consequences of the eternity clause, which upholds the constitutional principle of the rule of law, will always require ongoing social acceptance on the part of the population. 3. Result Therefore, if similar efforts to restrict the power of the judiciary were to be made in Germany, as are currently being done in Israel, much would ultimately depend on the strength and resilience of the social structures in which the Federal Constitutional Court is embedded. Unlike Israel, Germany is member of the European Union and the Council of Europe, which as international organizations also have the task of ensuring that the rule of law is upheld in their Member States. Yet, neither the EU institutions nor the institutions of the Council of Europe have so far been able to bring the governments in Poland and Hungary, which are responsible for major encroachments on the independence of their national judiciaries, back onto the path of the rule of law. Both organizations are trying to engage in rule-of-law dialogues or have in the meantime institutionalized rule-of-law mechanisms.47 The Court of Justice of the European Union and the European Court of Human Rights have already issued clear decisions against undermining the independence of the domestic judiciary in the States

45 Kluckert, Das Verfassungsgericht – das BVerfG, in: Stern/Sodan/Möstl (eds.), Das Staatsrecht der Bundesrepublik Deutschland im europäischen Staatenverbund, § 40 mn. 37; Schwarz, Verfassungsprozessrecht, § 4 mn. 36. 46 Similarly, Dreier, in: Dreier (ed.), Grundgesetz, Art. 79(3) mn. 50; Grzeszick, in: Dürig/ Herzog/Scholz (eds.), Grundgesetz, Art. 20 mn. 240. 47 See Schmahl, Rechtsstaatlichkeit, in: Schulze/Janssen/Kadelbach (eds.), Europarecht, § 6 mn. 28 – 29.

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mentioned.48 However, up to now there have been no significant practical successes in restoring the separation of powers in those States.

III. Conclusion Overall, awareness of the binding nature of the rule of law and the separation of powers is undergoing a worrying process of erosion across Europe. Under the populist pretext of greater democratic acceptance (“If the people want it, that’s the way it has to be”), constitutional limits are increasingly being pushed aside. However, democracy and the rule of law are not mutually exclusive, but complementary and interdependent. Democracy is not the dictatorship of the majority. The idea of democracy is that the majority exercises power in prescribed, constitutional structures for a limited time and does not take away the rights of the current minority. The protection of minority rights is the essential task of the rule of law and the constitutional courts. In particular, an independent constitutional court is an indispensable part of the democratic functioning of modern, diverse and, not least, economically strong societies.49 At the time of writing this contribution,50 there is still hope that the proposed law to amend the Judiciary Code of the Supreme Court in Israel will not become a reality. In his lecture on 13 February 2023, Yoram Danziger, like many organisations in Israel, was exemplary in this respect. The demonstrations in various Israeli cities also show that many Israeli citizens are well aware of the need to uphold the rule of law and the principle of separation of powers.51 In this spirit, I wish the jubilee not only all the best on his birthday, but also the best of luck for the future of the State and people of Israel.

48 See, e. g., CJEU, Judgment of 6. 11. 2012, C-286/12 (Commission v. Hungary), ECLI:EU:C:2012:687; Judgment of 24. 6. 2019, C-619/18 (Commission v. Poland), ECLI:EU:C:2019:531; Judgment of 5. 11. 2019, C-192/18 (Commission v. Poland), ECLI:EU:C:2019:924; Judgment of 15. 7. 2021, C-791/19 (Commission v. Poland), ECLI:EU:C:2021:596; ECtHR, Judgment of 12. 1. 2016, No. 57774/13 – Miracle Europe kft v. Hungary; Judgment of 23. 6. 2016, No. 20261/12 – Baka v. Hungary; Judgment of 8. 11. 2021, Nos. 49868/19, 57511/19 – Dolin´ska-Ficek and Ozimek v. Poland. 49 In this respect, see also the interview by Maximilian Steinbeis with Judge Peter Müller, Verfassungsblog, 24. 2. 2023. 50 This manuscript was completed in early March 2023. 51 According to a special survey on the judicial plan proposed in February 2023, 66 % of Israelis think the Supreme Court should have the power to strike down a law if it is incompatible with the Basic Laws, and 63 % of Israelis think that the current balance in the makeup of the Judge Selection Committee should be maintained, see Hermann/Anabi, The Israel Democracy Institute, 21. 2. 2023.

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Bibliography Barczak, Tristan (ed.): BVerfGG, Mitarbeiterkommentar, Berlin 2018. Burkiczak, Christian/Dollinger, Franz-Wilhelm/Schorkopf, Frank (eds.): BVerfGG, Kommentar, 2nd edition, Heidelberg 2021. Completing Israel’s Constitutional Process, A Proposal by the Israel Democracy Institute, 13. 2. 2023, https://en.idi.org.il/media/19581/completing-israel-s-constitutional-process.pdf (accessed at 6. 4. 2023). Dreier, Horst (ed.): Grundgesetz, Kommentar, Vol. 2, 3rd edition, Tübingen 2015. Dürig, Günter/Herzog, Roman/Scholz, Rupert (eds.): Grundgesetz-Kommentar, Loseblattsammlung, Munich 2022. Hermann, Tamar/Anabi, Or: Only a Minority of Israelis Support the Proposed Judicial Overhaul: Quick Survey about the Legal Reforms, The Israel Democracy Institute, 21. 2. 2023, https://en.idi.org.il/articles/47968?ct=t(EMAIL_CAMPAIGN_3_11_2021_16_7_COPY_ 01) (accessed at 6. 4. 2023). Klein, Eckart: Die Richter, in: Benda, Ernst/Klein, Eckart/Klein, Oliver (eds.): Verfassungsprozessrecht, 4th edition, Heidelberg 2020, § 5. Klein, Eckart: Entscheidungswirkungen, in: Benda, Ernst/Klein, Eckart/Klein, Oliver (eds.): Verfassungsprozessrecht, 4th edition, Heidelberg 2020, § 42. Klein, Eckart: Verfassungsgerichtsbarkeit und Verfassungsprozessrecht, in: Benda, Ernst/ Klein, Eckart/Klein, Oliver (eds.): Verfassungsprozessrecht, 4th edition, Heidelberg 2020, § 1. Kluckert, Sebastian: Das Verfassungsgericht – das BVerfG, in: Stern, Klaus/Sodan, Helge/ Möstl, Markus (eds.): Das Staatsrecht der Bundesrepublik Deutschland im europäischen Staatenverbund, Vol. II, 2nd edition, Munich 2022, § 40. Kluckert, Sebastian: Verfassungsgerichtsbarkeit, in: Stern, Klaus/Sodan, Helge/Möstl, Markus (eds.): Das Staatsrecht der Bundesrepublik Deutschland im europäischen Staatenverbund, Vol. II, 2nd edition, Munich 2022, § 52. Knesset News: Approved in first reading: Change in makeup of Judges Selection Committee, no judicial review of basic laws, The Knesset, 21. 2. 2023, https://main.knesset.gov.il/EN/News/ PressReleases/Pages/press21223q.aspx (accessed at 6. 4. 2023). Knesset stimmt zentralen Teilen von umstrittener Justizreform zu, Zeit Online, 21. 2. 2023, https://www.zeit.de/politik/ausland/2023-02/israel-justizreform-abstimmung-parlament-knes set (accessed at 6. 4. 2023). Neue Proteste gegen Justizreform, Jüdische Allgemeine, 1. 3. 2023, https://www.juedische-allge meine.de/israel/neue-proteste-gegen-justizreform/ (accessed at 6. 4. 2023). Schlaich, Klaus/Korioth, Stefan: Das Bundesverfassungsgericht, 12th edition, Munich 2021. Schmahl, Stefanie: Rechtsstaatlichkeit, in: Schulze, Reiner/Janssen, André/Kadelbach, Stefan (eds.): Europarecht. Handbuch für die deutsche Rechtspraxis, 4th edition, Baden-Baden 2020, § 6. Schmidt-Bleibtreu, Bruno/Klein, Franz/Bethge, Herbert (eds.): BVerfGG, Kommentar, 62nd edition, Munich 2023.

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Schwarz, Kyrill-Alexander: Verfassungsprozessrecht, Munich 2021. Shany, Yuval: Eine schwache Demokratie, die noch schwächer wird, Süddeutsche Zeitung Online, 3. 3. 2023, https://www.sueddeutsche.de/meinung/israel-oberstes-gericht-netanjahu-1. 5762252?reduced=true (accessed at 6. 4. 2023). Steinbeis, Maximilian/Müller, Peter: “Jeder der versuchen würde, das Bundesverfassungsgericht auszuhebeln, würde sich verheben”, Verfassungsblog, 24. 2. 2017, https://verfassungs blog.de/jeder-der-versuchen-wuerde-das-bundesverfassungsgericht-auszuhebeln-wuerdesich-verheben/ (accessed at 6. 4. 2023). Steinbeis, Maximilian/Raday, Frances: An Existential Threat, Verfassungsblog, 3. 3. 2023, https://verfassungsblog.de/an-existential-threat/ (accessed at 6. 4. 2023). Tibon, Amir: Netanyahu’s Coup for Dummies: Israel’s Constitutional Crisis, Explained, Haaretz Online, 22. 2. 2023, https://www.haaretz.com/israel-news/2023-02-22/ty-article/.premi um/netanyahus-coup-for-dummies-israels-constitutional-crisis-explained/00000186-743dd403-a5cf-75ffa3e90000 (accessed at 6. 4. 2023). Umstrittenes Gesetz zur Justizreform nimmt erste Parlamentshürde, Frankfurter Allgemeine Zeitung Online, 21. 2. 2023, https://www.faz.net/aktuell/politik/israel-justizreform-in-ersterlesung-angenommen-18694036.html (accessed at 6. 4. 2023). Walter, Christian: Angriff auf die Justiz: Interview, Beck aktuell, 2. 3. 2023, https://rsw.beck.de/ aktuell/daily/magazin/detail/angriff-auf-die-justiz (accessed at 6. 4. 2023). Walter, Christan/Grünewald, Benedikt (eds.): Beck’scher Online Kommentar zum BVerfGG, 14th edition, Munich 2022. Weill, Rivka: The Tangible and Imminent Threat to Israel’s Judicial Independence, Verfassungsblog, 18. 11. 2022, https://verfassungsblog.de/the-tangible-and-imminent-threat-to-israels-ju dicial-independence/ (accessed at 6. 4. 2023). Weill, Rivka: War over Israel’s Judicial Independence, Verfassungsblog, 25. 1. 2023, https://ver fassungsblog.de/war-over-israels-judicial-independence/ (accessed at 6. 4. 2023). Weinrib, Lorraine E./Weinrib, Ernest J.: Statement by Canadian Law Professors and Jurists on the Proposed Legal Reforms in Israel, Verfassungsblog, 10. 2. 2023, https://verfassungsblog. de/statement-by-canadian-law-professors-and-jurists-on-the-proposed-legal-reforms-in-isra el/ (accessed at 6. 4. 2023).

How the Law Deals with Troublemakers By Kyrill-A. Schwarz*

I. Introduction In a democratic constitutional state, petitions, submissions and applications are just as much a matter of course as the fact that they are always dealt with swiftly and professionally. In this respect, the corresponding rights of participation – not only in the administrative law context, but also in constitutional law one – demonstrate the essential shift from subject to citizen. Of course, these changes are not merely an expression of a changed understanding of the state and a civil society which is now oriented towards participation, and which increasingly also wants to be an informed society. The phenomenon is certainly – and increasingly frequently – observed, that individuals confront the constitutional state with their concerns, and the problem arises of how to respond to quarrelsome or not immediately intelligible requests. Three quotations taken from court decisions from completely different legal cultures may shed some light on the topic of this article: “This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it. Intended for a political purpose, none of the counts of the amended complaint stated a cognizable legal claim”.1 With these opening words, former US President Donald Trump, the plaintiff, was ordered by the court to pay a sanction of US$ 937,989 for “a continuing pattern of misuse of the courts… in order to dishonestly advance a political narrative”. In a leading case of the German Federal Constitutional Court on the foreign deployment of German armed forces2 – the conflict between parts of the government brought before the court, initiated among others by the FDP fraction, which was part of the government majority – the dissenting opinion of Judges Kruis and Böckenförde contains a remarkable statement on the (in)ad* Prof. Dr. Kyrill-A. Schwarz holds a professorship for Public Law at the Institute for Constitutional and Administrative Law at the University of Würzburg. 1 United States District Court, Southern District of Florida, Case No. 22-14102-CVMiddlebrooks, Donald Trump v. Hillary R. Clinton et al., available at https://unicourt.com (accessed at 22. 2. 2023). 2 BVerfGE 90, 286 et seq., cf. also Brenner/Hahn, JuS 2001, p. 729 et seq.; Burkiczak, ZRP 2003, p. 82 et seq.; Hölscheidt/Limpert, JA 2009, p. 86 et seq.; Ladiges, NVwZ 2010, p. 1075 et seq.; Röben, ZaöRV 2003, p. 585 et seq.; Schröder, NJW 2005, p. 1401 et seq.; Thym, DÖV 2010, p. 621 et seq.; Wiefelspütz, ZaöRV 2004, p. 363 et seq.

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missibility of the application. In contrast to the court’s majority,3 the dissenting opinion stated “… that the proceedings involving a conflict between parts of the government are only the pretence to bring the political conflict about the necessity and content of a constitutional amendment before the Federal Constitutional Court and, as it were, to have it decided by judicial opinion”.4 And a last example can show how difficult it is to deal with citizens seeking judicial redress who, through a large number of proceedings, make undue use of the – restricted – capacities of the resource “law”: The plaintiff filed a claim for damages against the public authorities because of the excessive duration of a large number of proceedings he was conducting; the Regional Social Court first determined – without an oral hearing – that the 138 pending proceedings were “… obviously groundless …” and “… did not even begin to show a justified interest”, then it ordered that they be dismissed as “… irrelevant claims…” and ordered that “… no further steps were to be taken …”. Regarding the plaintiff’s appeal against refusal of leave, the Federal Social Court set aside the order of the Regional Social Court and referred the case back to that court for hearing and decision, since there was no legal basis for the decision made by the Regional Social Court and the order also violated the applicant’s constitutional right to a fair hearing (German Federal Constitution, Article 19 (4) (GG)).5 What all three cases have in common is that judicial power is used to enforce goals whose justification – for quite different reasons (open abuse and instrumentalisation of the judiciary for the enforcement of illegitimate goals, on the one hand, procedural abuse of a constitutional court procedure to resolve political conflicts on another, and finally alleged troublemaking through the filing of a multitude of lawsuits) – may appear to be dubious; and at the same time, all three decisions show how differently the courts dealt with the problem of the allegedly illegitimate use of the courts; the possible reactions went from a defensive solution through the imposition of sanctions (almost comparable to punitive damages in US tort law) to a solution – albeit open to criticism – via admissibility requirements (according to the Federal Constitutional Court) to the approach of the Federal Social Court, which was both procedural and substantive. This raises the question of which criteria can be used to find solutions for dealing with difficult litigants: Are the contents of the complaint abstruse, is it the very high frequency of recourse to judicial redress,6 is it the unreasonable and advice-resistant behaviour of a plaintiff, is it professional cantankerousness or is it despair at a system that grants justice only according to the law?7 The reasons can be manifold, but the 3

BVerfGE 90, 286 (338 et seq.). BVerfGE 90, 286 (390, 394). 5 Citations in BSG, Beschl. v. 12. 2. 2015 – B 10 ÜG 8/14 B, BeckRS 2015, 67445. 6 For an instructive judgment, cf. BVerwG, NVwZ 2021, p. 646 et seq. 7 Cf. on the one hand the statement attributed to the GDR civil rights activist Bohley: “We expected justice and got the rule of law”; see on the other hand the literature shedding light on the problem: v. Kleist, Michael Kohlhaas; Walser, Finks Krieg. 4

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rule of law – even in dealing with those who are willing to test its patience – must assure itself of compliance with the rule of law as an imperative to avoid arbitrariness.8 In order to do so, however, it is first necessary to make sure of what the issues raised by the abuse of rights are, on the one hand, and what is the guarantee of redress, on the other.

II. Troublemakers A central difficulty in tackling the problem of dealing appropriately with troublemakers is first of all a definition of the phenomenon “troublemaker”. Notwithstanding pathological manifestations, which can make themselves apparent as delusional compulsions in the pursuit of alleged legal rights with a simultaneous loss of reference to reality,9 and which, incidentally, tend to raise questions about legal capacity (§ 62 VwGO), capacity to act (§ 12 VwVfG) or – from a criminal law perspective – culpability (§§ 20, 21 StGB), we are dealing here with persons – without pathological mental states – who are “only” characterised as having quarrelsome personalities.10 Typical manifestations are a large number of petitions and the long duration of proceedings,11 an increasingly aggressive approach, obtuseness as well as the pursuit of claims in matters that are objectively unfounded and not justifiable. In this context, one can make further distinctions between helpless seekers of help, know-it-alls, aggressive or calculating litigants, and those who instrumentalise the rule of law for the pursuit of interests that are foreign to the law. The decisive factor for the classification and categorisation of different kinds of problems should be the question of whether or not there is any prospect of success in the pursuit of litigation, applying reasonable standards.12 Repeated submissions as such are therefore not inadmissible; only when they concern identical procedural issues and the relevant legal questions have already been decided upon can the legitimate pursuit of rights turn into inadmissibly querulous behaviour.

8 Cf. Jhering, Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung, p. 497: “Die Form ist die geschworene Feindin der Willkür, die Zwillingsschwester der Freiheit.” [“Form ist the sworn enemy of arbitrariness, the twin sister of freedom.”]. 9 On this subject, cf. LAG Düsseldorf, Urt. v. 26. 11. 2008 – 12 Sa 193/07, juris mn. 28. 10 Cf. detailed treatment: Engel, VR 2022, 117 (120 et seq.). 11 See the description of the facts of the case in the BSG decision, Beschl. v. 12. 2. 2015 – B 10 ÜG 8/14 B, BeckRS 2015, 67445. 12 For a review of defensible decisions, see Zippelius, Juristische Methodenlehre, p. 82 et seq.

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III. The Guarantee of Legal Redress and its Realisation in Ordinary Law 1. Article 19 (4) GG as a General Principle of the Rule of Law Insofar as litigants are denied redress – in whatever form – the guarantee of legal redress in Article 19 (4) GG becomes the focus of interest. Legal recourse, which is comprehensively guaranteed by the German constitution, needs to be legally defined. According to the case-law of the Federal Constitutional Court,13 legal redress is a state measure, the preconditions for which must first be created, the nature of which must be defined in more detail, and the scope of which must be specified in detail. In this context, Article 19 (4) GG only provides the legislature with the aims and the main features of this obligation, but in other respects opens up a not inconsiderable scope of discretion, which is, however, further determined by the fundamental necessity of a comprehensive review of the respective sovereign acts complained about both in factual and legal aspects, by the type of decision, by the effect of the judgment, which are to be appropriate to the application for legal protection.14 This, however, does not exclude restrictions of the right to effective legal protection,15 as long as the respective arrangements can still fulfill the protective purpose of Article 19 (4) GG.16 Against this background, measures are inadmissible which are aimed at or even suitable for frustrating the goal of legal protection of the person concerned.17 Overall, Article 19 (4) GG therefore prohibits the creation of unreasonably high procedural obstacles for access to the courts to the detriment of those seeking justice, which make it unreasonably difficult for litigants to avail themselves of legal protection, which cannot be justified on factual grounds.18 Against this background, there are also no fundamental misgivings if access to the courts is not granted free of charge or without litigants facing the risk of costs; the legislature is also at liberty to use fee setting above covering costs,19 in order to pursue the goal of preventing the frivolous or abusive filing of appeals.20 Against this background, Article 19 (4) GG initially constitutes a central feature of the principle of the rule of law, which, concretises for the area of legal protection vis a vis the public authority the general right to the guarantee of justice under the rule of 13

Cf. BVerfGE 133, 1 (23). BVerfGE 101, 106 (123 et seq.); 118, 168 (207); 133, 1 (23) – std. Rspr. 15 BVerfGE 101, 313 (364); 109, 279 (364); 133, 1 (23). 16 BVerfGE 60, 253 (269). 17 BVerfGE 69, 1 (49); 133, 1 (23). 18 BVerfGE 40, 272 (274 et seq.); 60, 253 (269); 78, 88 (99); 88, 118 (124); 133, 1 (27). 19 Cf. on the cost recovery principle in the literature, Kirchhof, Nichtsteuerliche Abgaben, in: Isensee/Kirchhof (eds.), HbStR V, § 119 mn. 49; Korioth, Finanzen, in: Voßkuhle/Eifert/ Möllers (eds.), Grundlagen des Verwaltungsrechts, § 42 mn. 37; Waldhoff, Abgabenrecht, in: Ehlers/Fehling/Pünder (eds.), Besonderes Verwaltungsrecht, § 67 mn. 127. 20 BVerfGE 10, 264 (268); 50, 217 (230 et seq.); 85, 337 (346 et seq.); 133, 1 (27 et seq.). 14

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law.21 Invocation of the fundamental procedural right contained in Article 19 (4) GG also presupposes that substantive subjective legal rights are being asserted in court proceedings. The guarantee of legal protection thus does not create subjective rights, but presupposes them.22 However, this premise alone also permits the reverse conclusion that any recourse to judicial legal protection is in any case inadmissible if a violation of a corresponding subjective right does not seem imaginable from any conceivable point of view. For example, this applies to the so-called unreasonable exercise of a right, which is given if exercise of the right violates the principle of good faith (§ 242 BGB), for example because it is only done for the purpose of causing damage to another person.23 2. Limitations on Legal Redress by Means of Ordinary Law – the Example of the Right of Access to Information This can be clearly illustrated by the example of the right of access to files under the German Freedom of Information Act (IFG): On the one hand, the law itself, in § 9 (3) IFG, provides the option of rejecting an application for access to information if the applicant already has the requested information or can obtain it in a reasonable manner from generally accessible sources. And even if the law then wanted to create a right without preconditions,24 the legislature25 itself considered that “… querulous applications would neither be accepted nor processed …”. However, that raises the question of how this group of cases can be clearly distinguished given the finding that exercise of the right does not require a legal interest, not even a legitimate interest,26 and that freedom of information is thus granted for its own sake.27 Against this background, an unspecified interest in information, even if it at the same time has ulterior purposes, cannot ipso iure be qualified as an abuse of rights. It is indisputable that the expansion of digitalisation has fundamentally changed the relationship between the state and its citizens. This concerns both the modalities of communication and its content. Individuals can contact state authorities and have a – judicially – enforceable right to the respective information. This is of central importance in a democratic constitutional state, as the creation of transparency has a 21

Cf. BVerfGE 88, 118 (123); 96, 27 (39 et seq.); 107, 395 (401); 116, 135 (150); 117, 71 (121 et seq.) – std. Rspr.; see also from the literature Schulze-Fielitz, in: Dreier (ed.), GG, Art. 19 mn. 35 et seq. 22 Cf. also BVerfGE 15, 275 (281); 51, 176 (185); 61, 82 (110 et seq.); 69, 1 (49); 83, 182 (194 et seq.); 84, 34 (49); 103, 142 (156); 116, 1 (11 et seq., 18). 23 Cf. BVerwG, NVwZ 2021, 646 (646 et seq.). 24 Schoch, IFG, § 1 mn. 18 et seq. 25 Cf. in this respect only the draft bill, BT-Drs. 15/4493, p. 16. 26 For the case law on that, cf. BVerwG, NVwZ 2021, 646 (646 et seq.), which rightly points out that the fact that the claim is unconditional does not mean that the applicant does not have to have an interest in the information. 27 For an explicit treatment, cf. Schoch, IFG, § 1 mn. 19.

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confidence-building effect and at the same time also promotes control of the government administration by the citizens. This was precisely the aim of the 2006 federal IFG, which, according to the explanatory memorandum, aimed to promote democratic participation through fast and uncomplicated access to information.28 However, it cannot be overlooked that public authorities are increasingly confronted with very broad requests in view of the unconditional right to information under the provisions of the IFG. The phenomenon can be observed that applications are sometimes made “out of the blue” for research purposes, and that is done with the expectation that at least some information relevant to the applicant’s research will be found in the mass of information made available. Even if one may say that the IFG is not designed to deal with complex issues or mass proceedings, the current law is nevertheless the yardstick for applications under the IFG. An identified need for reform – if it exists at all – must be implemented by the legislature and not achieved by judicial lawmaking. First of all, it is of decisive importance for dealing with IFG applications that the law does not contain a special clause that expressly prohibits applications that are abusive of the law and thus would establish criteria within the IFG itself for abuse of the law in a binding area specific manner. The unconditional right to be granted information by public administrative bodies obliged to provide information can only be denied in accordance with the provisions of §§ 3 to 6 IFG and in accordance with § 9 (3) IFG. The German federal legislature has thus taken adequate and conclusive account of the public and private interests that conflict with the right to information.29 Against this background, the legal regime of the IFG also differs fundamentally from other rules in German federal law on access to information: Under § 8 (2) No. 1 UIG, a request must be rejected if it has been made in an obviously abusive manner; in consumer information law (§ 4 (4) VIG), an abusive request must be rejected if the applicant already has the requested information.30 In contrast, the IFG takes the view that the motivations of applicants should be just as irrelevant as the usefulness of the information for those applicants.31 In this respect, the explanatory memorandum to the IFG only states that “… according to general administrative law principles on the abuse of rights (…) querulous applications must neither be accepted nor processed”.32

28

Cf. BT-Drs. 15/4493, p. 6. This is also very clear in the explanatory memorandum to the draft bill on the Freedom of Information Act, when it says: “The exceptions are concrete and precise. According to the usual rules of interpretation, they are to be understood narrowly”, cf. BT-Drs. 15/4493, p. 9. 30 In this respect, the case law also presupposes a case of abuse here, cf. BVerwG, NJW 2020, 1155 (1157). 31 This is also the consensus in literature: Scheel, in: Berger/Partsch/Roth/Scheel (eds.), IFG, § 1 mn. 4; Schoch, IFG, § 9 mn. 56; Sellmann/Augsberg, WM 2006, 2293 (2297). 32 BT-Drs. 15/4493, p. 16. 29

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According to the aforementioned travaux preperatoire, the legislature deliberately decided to forego an abuse of rights provision;33 accordingly, requests for information can also be made for selfish or possibly even questionable motives.34 That does not mean, however, that abuse of rights as a general legal category is alien to freedom of information law in general. In particular, it should be possible to reject a request for access to information on the grounds that it is an inadmissible exercise of rights. Conceptually, “abuse of rights” is the use of a right in disregard of its intended purpose.35 If the right of access to official information under § 1 (1) IFG is intended to serve the realisation of freedom of access to information and is not intended to lead to the paralysis of the administration, then it is indisputable that querulous requests, as well as requests made with the aim of delaying proceedings or deliberately blocking a government agency from performing its tasks, are definitely recognised cases of abuse of rights.36 Against this background, it is not surprising and quite consistent, in the absence of black letter law, that the case law has so far set the hurdles for abuse of rights under the IFG very high and requires that the applicant must act with the sole motive of harassing the authority and burdening its resources.37 The decisive criterium for abuse is that the right of access to information has been instrumentalised by pursuing aims that are not covered by the IFG and are contrary to its intended goals.38 It is particularly problematic in the area of the application of the IFG that access to official information is to be considered regardless of the motives, goals, purposes and interests of the applicant.39 The adoption of further “soft” criteria by way of further judicial development of the law, however, would lead to the result that the absence of preconditions for the 33 Cf. also OVG Berlin/Brandenburg, NVwZ 2018, 1886 (1887): “Das entspricht der Absicht des Gesetzgebers, der die Gefahr einer missbräuchlichen Nutzung des voraussetzungslos eingeräumten Anspruchs auf Informationszugang durchaus erkannt, aber von der Schaffung eines expliziten Ausschlussgrundes abgesehen hat.” [“This corresponds to the intention of the legislature, which certainly recognised the danger of abusive use of the unconditionally granted right to access to information, but refrained from creating an explicit ground for exclusion.”]. 34 Cf. HessVGH, Beschl. vom 24. 3. 2010 – 6 A 1832/09, BeckRS 2010, 48167; similarly also Scheel, in: Berger/Partsch/Roth/Scheel (eds.), IFG, § 1 mn. 4. 35 Cf. also Kloepfer/v. Lewinski, DVBl. 2005, 1277 (1286); Schoch, IFG, § 9 mn. 59. 36 For concurring views, cf. Kloepfer/v. Lewinski, DVBl. 2005, 1277 (1286); Léopold, WuW 2006, 592 (598); Raabe/Helle-Meyer, NVwZ 2004, 641 (646 et seq.); Schoch, IFG, § 9 mn. 59; cf. also the case law of the OVG Berlin/Brandenburg, NVwZ 2018, 1886 (1887 et seq.). 37 Cf. for example HessVGH, Beschl. vom 24. 3. 2010 – 6 A 1832/09, BeckRS 2010, 48167; VG Berlin, Urt. vom 9. 3. 2017 – 2 K 111/15, BeckRS 20717, 108992 mn. 19; VG Berlin, Urt. vom 15. 3. 2013 – 2 K 172/12, BeckRS 2013, 199208, mn. 23; cf. also on this issue Schoch, IFG, § 1 mn. 25. 38 Cf. Schoch, IFG, § 9 mn. 59. 39 Cf. OVG Schleswig, NVwZ 2013, 810, mn. 53. Cf. approvingly: Scheel, in: Berger/ Partsch/Roth/Scheel (eds.), IFG, § 1 mn. 4; Schoch, IFG, § 1 mn. 25.

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right of access to information, as a central achievement of the law, could be “leveraged out”, as it were, via the back door of abuse of rights.40 If, however, the intentions of the applicant do not play a role consistent with cases regarded as improper use,41 then abuse of rights within the scope of application of the IFG can only be considered with regard to the information as such and its use, whereby it can only be considered in particularly exceptional cases.42 In view of the fact that use-related abuse is ruled out due to the preconditionless design of the right to information, only government agency-related cases of abuse can be considered. These are constellations of cases in which the right of access to information – as already indicated above – is used as an instrument to harass, obstruct or damage a government body obliged to provide information by tying up manpower and causing costly administrative procedures. Only in the case of such rare querulous requests for information is it likely that there is an abuse of rights.43 As a result, it must be left to the legislature to create an abuse clause according to which certain kinds of applications would be classified as abuse of rights if it could be concluded on the basis of an overall view of a person’s application behaviour that motives were predominantly being pursued which ran counter to the legal purpose of the IFG.44 In that context, it is also worth noting that the legislature has not followed suggestions for the inclusion of an abuse clause in the area covered by the 40 Cf. in the literatute Schoch, IFG, § 1 mn. 25; Spindler, ZGR 2011, 690 (699); cf. also the jurisprudence of OVG Berlin/Brandenburg, NVwZ 2018, 1886 (1887). 41 Cf. HessVGH, Beschl. vom 24. 3. 2010 – 6 A 1832/09, BeckRS 2010, 48167. 42 Cf. for example HessVGH, Beschl. vom 24. 3. 2010 – 6 A 1832/09, BeckRS 2010, 48167; OVG Berlin/Brandenburg, NVwZ 2018, 1886 (1887); in the literature on this problem see also Schoch, IFG, § 1 mn. 26. 43 On the above, cf. also Schoch, IFG, § 1 mn. 26 with reference to HessVGH, Beschl. vom 24. 3. 2010 – 6 A 1832/09, BeckRS 2010, 48167; also the very clear treatment of VG Regensburg, Urt. vom 9. 7. 2015 – RN 5 K 14/1110, BeckRS 2015, 51715: “Unter Rückgriff auf allgemeine Rechtsgrundsätze – insbesondere auf den Grundsatz von Treu und Glauben (§ 242 BGB) – wird man einen Antrag dann als rechtsmissbräuchlich einstufen können, wenn es dem Antragsteller in Wahrheit gar nicht um die nachgefragten Daten geht, sondern er ein anderes verborgenes Ziel verfolgt. Dieses könnte z. B. in reiner Schikane oder querulatorischen Neigungen liegen oder aber in der Verzögerung der Arbeitsweise der Behörde. Eine maßgebliche Rolle spielen damit die Motive, die der Antragsteller hat. In diesem Zusammenhang ist jedoch auch zu berücksichtigen, dass die Behörde in aller Regel nicht verlässlich beurteilen kann, welche Motivation hinter einem Antrag steht.” [“With recourse to general legal principles – in particular the principle of good faith (§ 242 BGB) – it will be possible to classify an application as an abuse of rights if the applicant is not in fact interested in the requested data, but is pursuing an ulterior motive. This could be, for example, pure harassment or querulous inclinations or delaying the function of the authority. The applicant’s motives thus play a decisive role. In this context, however, it must also be taken into account that the authority is usually unable to reliably access the motivation behind an application.”] – Against this background, the court did not see any abuse of rights in identical requests. 44 For example the demand in Krüger, ZRP 2018, 79 (81) with the relevant references to the relevant provisions in Landestransparenzgesetz Rheinland-Pfalz (§ 14 Abs. 1 Nr. 12); also Schoch, IFG, § 9 mn. 58; cf. also OVG Berlin/Brandenburg, NVwZ 2018, 1886 (1887).

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IFG,45 but has rather consciously decided to maintain the current legal situation, being aware of the problems of possible abuse. This fundamental decision by the legislature must be respected and cannot be thwarted by way of specialist court interpretation of the relevant provisions.46

IV. Legitimate Response Options of the Constitutional State 1. Historical Models For the first time – as far as can be ascertained – a legal provision for dealing with troublemakers was included in Prussian Edict No. 75 of 12 July 1787.47 The text indicates that the fight against querulousness pursued several objectives: On the one hand, the protection of public authorities from the consequences of “wilful querulousness”, on the other hand, the protection of those who are driven to an “… untamed addiction to litigation …” by “… the disgraceful trade of shyster lawyers (…) and unauthorised consultants …” and thus “… completely lose all moral feeling and all desire and inclination to fulfil their various duties”. In nineteen paragraphs, a concept was then developed which, on the one hand, was capable of granting sufficient legal protection, but, on the other hand, threatened sanctions – for that type of pro-

45 Cf. also Ziekow/Debus/Musch, Evaluation des Gesetzes zur Regelung des Zugangs zu Informationen des Bundes – Informationsfreiheitsgesetz des Bundes (IFG) – on behalf of the Committee on Internal Affairs of the German Bundestag, 2012, p. 193 et seq.: “(…), sollte in Anlehnung an § 8 Abs. 2 Nr. 1 UIG die Möglichkeit geschaffen werden, bei offensichtlich missbräuchlichen Anträgen den Informationszugang zu verweigern. Hierdurch würde zum einen ein deutliches Signal gesetzt, dass eine missbräuchliche Inanspruchnahme die Institution des Informationszugangsrechts über den Einzelfall hinaus zu entwerten droht, und zum anderen den Behörden eine explizite Rechtsgrundlage für die Ablehnung entsprechender Anträge zur Verfügung gestellt.” [“(…), along the lines of Section 8(2) No. 1 UIG, it should have the option of refusing access to information in the case of obviously abusive requests. This would, on the one hand, send a clear signal that abusive applications threaten to devalue the institution of the right of access to information beyond the individual case and, on the other hand, provide authorities with an explicit legal basis for rejecting such requests.”]. 46 Very clear in this respect also OVG Berlin/Brandenburg, NVwZ 2018, 1886 (1887 with reference to BVerwG, NVwZ 2016, 1814): “Auf die Problematik, dass sich eine ausschließliche Verfolgung sachfremder Ziele so gut wie nie belegen lässt, hat bereits (…) das Bundesverwaltungsgericht (…) hingewiesen und ausgeführt, dass es dem Gesetzgeber freistehe, den Ausnahmetatbestand des offensichtlichen Missbrauchs so auszugestalten, dass er nicht nur die ausschließliche, sondern – jedenfalls – auch die weit überwiegende Verfolgung sachfremder (…) Intentionen umfasst.” [“The Federal Administrative Court (…) has already (…) pointed out the problem that the exclusive pursuit of extraneous objectives can almost never be proven and has stated that the legislature is free to design the exceptional circumstance of obvious abuse in such a way that it covers not only the exclusive, but – in any case – also the far predominant pursuit of extraneous (…) intentions.”]. 47 Announcement regarding punishment of wilful troublemakers, reprinted in: Novum Corpus Constitutionum Prussico-Brandenburgensium, 1791, p. 1497 et seq.

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cedural arrangement – to those who had not made use of the given protective mechanisms and nevertheless pursude legal action. It is noteworthy that § 1 explicitly recognised the right to pursue one’s rights and approach the King with “… genuinely justified and substantial complaints …”. Whosoever did not make use of that option and did not submit his complaints and petitions in a lawful and regular manner under § 10 of the Edict, had to expect that his submissions would not be examined and would be returned without further consideration. Whoever then – despite being informed of the inadmissibility of his submission – still insisted on his submission (“repeated impetuous supplications”), would be regarded as a “… wilful and malicious …” troublemaker under § 11. and could be punished with imprisonment for up to 6 months. 2. The Instruments of the Democratic Constitutional State Even if the Prussian regulations can be understood as a preventive provision in procedural law with regard to the requirements and legal consequences, such actions are today barred by GG because of the GG’s guarantee of effective legal protection.48 A criminal trial for being a troublemaker49 is excluded, as is any other stigmatisation by the law; the decisive factor is therefore how the rule of law reacts to the challenges of “troublemakers” in a system characterised by the guarantee of legal protection in Article 19 (4) GG. Against this background, selected potential responses will be presented, analysed and evaluated below. a) Deprivation of the Capacity to Institute Proceedings One option for dealing with querulous behaviour under procedural law can result from an examination of the ability to institute proceedings. Capacity to institute proceedings – in the sense of § 62 VwGO – is understood to mean the ability to undertake or have undertaken procedural acts oneself or through an appointed representative.50 If the plaintiff lacks capacity, the procedural acts are invalid and the respective action must be dismissed as inadmissible.51 The procedural codes (in addition to § 62 (1) no. 1 VwGO, also, for example, § 71 (1) SGG) refer to provisions on legal capacity 48

Cf. the reception: Lindemann, Pathologischer Rechtsmissbrauch oder verdienstvoller “Kampf um’s Recht”?, Zum Umgang des Rechtssystems mit “querulatorischen” Eingaben, in: Dudeck/Kaspar/Lindemann (eds.), Verantwortung und Zurechnung im Spiegel von Strafrecht und Psychiatrie, 135 (146). 49 Similar demands, however, were still being made in the 1950s by Ehrlich, Schweizerische Juristenzeitung 1952, 329 (334). 50 Cf. Czybulka/Siegel, in: Sodan/Ziekow (eds.), VwGO, § 62 mn. 2; Porz, in: Fehling/ Kastner/Störmer (eds.), HKVerwR, § 62 VwGO mn. 3 et seq.; Schenke, in: Kopp/Schenke (eds.), VwGO, § 62 mn. 1. 51 For a general view, cf. Porz, in: Fehling/Kastner/Störmer (eds.), HKVerwR, § 62 VwGO mn. 6.

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in the civil law; according to those provisions, “… anyone who is in a state of pathological mental disturbance that precludes the free determination of his or her wishes is to be regarded as legally incompetent, unless the mental state is by its nature temporary”. (§ 104 No. 2 BGB). However, according to the case law,52 high standards are to be set for the determination of legal incapacity; even if querulousness is obvious and the applicant pursues a large number of identical proceedings – partly also with “unreasonable” conduct of the proceedings and a not inconsiderable risk of legal costs – this is not sufficient for the court to be able to find that there is legal incapacity. Rather, what is required is a kind of “querulous delusion”, which, however, should only be accepted when, as a result of “… delusional development, the connection to reality has been lost and (those affected) are constricted in their thinking and actions by the delusion and are therefore no longer in a position to consider new arguments”.53 Beyond these high factual requirements, however, it is mainly the intention of the legal institution of procedural capacity, which speaks against such an approach as a means of defending against querulous behavior. The power to conduct proceedings serves the interest of the person seeking justice and is intended to protect that person from the adverse consequences of the improper conduct of proceedings.54 However, in view of the protective function, and the resulting necessity of action, either by the legal representative or by a guardian to be appointed by the court, and further clashes that that entails, whether the courts will really get relief in terms of workload, one would probably have to doubt. b) Set Aside and Do Not Process Another possible reaction is simply not to act. According to some case law,55 it should be possible to discontinue proceedings in cases of nonsensical applications, that are not to be taken seriously, and to remove the proceedings from the court register, provided that the person concerned has been made aware of this option by the competent court.56 52 LSG Sachsen-Anhalt, Beschl. v. 3. 2. 2012 – L 5 AS 276/10 B ER –, BeckRS 2012, 66824; cf. also VGH Kassel, NJW 1990, 403. 53 Cf. again LSG Sachsen-Anhalt, Beschl. vom 3. 2. 2012 – L 5 AS 276/10 B ER –, BeckRS 2012, 66824. 54 For a general view, cf. Lindemann, Pathologischer Rechtsmissbrauch oder verdienstvoller “Kampf um’s Recht”?, For how the legal system deals with “querulous” submissions, in: Dudeck/Kaspar/Lindemann (eds.), Verantwortung und Zurechnung im Spiegel von Strafrecht und Psychiatrie, 135 (147 et seq.); Porz, in: Fehling/Kastner/Störmer (eds.), HKVerwR, § 62 VwGO mn. 1. 55 Supporting this view, cf. VGH Mannheim, NVwZ-RR 2017, 4; for a different view, cf. for example Beschl. vom 12. 2. 2015 – B 10 ÜG 8/14 B, BeckRS 2015, 67445. 56 Cf. LG Stuttgart, NJW 1994, 1077 mwN; for case law of the higher courts cf. also BFH, NJW 1993, 1352.

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However, this approach is also subject to strict constitutional limits: Since Article 19 (4) GG unambiguously favours individual legal redress, and guarantees legal protection against public authorities as an independent fundamental right,57 this procedural fundamental right can also only be restricted in accordance with conflicting constitutional law, i. e. by the fundamental rights of third parties or other legal rights of constitutional rank, precisely because it is not subject to any legal reservation.58 In this context, the legislature has open to it, in principle, discretion to shape the more detailed legal formulation of the legal protection guarantee59. It doing so it must ensure the effectiveness of the legal protection guarantee and may not restrict it without objective reasons. If, however, the central significance of Article 19 (4) consists in the procedural safeguarding of fundamental rights, then it is absolutely necessary to invoke the guarantee of legal protection, otherwise there is a danger of devaluing this substantive fundamental right.60 However, if there is no right to be protected, then dismissal or abandonment of proceedings as of right should not be problematic, although a legal basis is required for such actions. This finding is also largely consistent with the case law of the Federal Constitutional Court. According to that case-law, due to the central importance of the legal protection guarantee of Article 19 (4) GG, a court may only refuse to deal with a legal submission because of insults contained therein, i. e. if the submission is essentially confined to insults and it is not apparent that a factual concern is also being pursued at the same time.61 c) Negation of the Need for Legal Protection According to general opinion, there is no need for legal redress – with the consequence that the respective legal remedy is not available – if the person seeking legal protection is objectively pursuing objectives that are recognisably condemnable.62 That would be the case, for example, where the exercise of the right only serves the purpose of causing damage to another person. However, invoking this exception 57

Cf. Huber, in: v. Mangoldt/Klein/Starck (eds.), GG, Art. 19 mn. 342; Schulze-Fielitz, in: Dreier (ed.), GG, Art. 19 mn. 39. 58 For a general view, cf. Huber, in: v. Mangoldt/Klein/Starck (eds.), GG, Art. 19 mn. 372; Ibler, in: Dürig/Herzog/Scholz (eds.), GG, Art. 19 IV mn. 316; Schulze-Fielitz, in: Dreier (ed.), GG, Art. 19 mn. 140. 59 Regarding the possibility of legislation being enacted, cf. also BVerfGE 101, 106 (123); 118, 168 (207). 60 Cf. BVerfGE 63, 131 (143). 61 Cf. also BVerfG (K), NJW 2001, 3615: “Adäquates Mittel zur Sanktionierung von Beleidigungen ist das Strafrecht, nicht aber – über eine Beschneidung der Rechtsschutzmöglichkeiten – das Verfahrensrecht.” [“The appropriate means of sanctioning insult is criminal law, but not – via a scaling back of legal protection – procedural law.”]. In this context, it is noteworthy that the Federal Constitutional Court did not regard the court’s notification that it would no longer process the applications at issue as a failure to act, but rather as a “decision” with the consequence that an appeal could also be lodged against that court’s decision. 62 BVerwG, NVwZ 2021, 642 (643) on the criteria under IFG.

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should only rarely be considered, because in principle the reason why a litigant is seeking legal relief is generally not decisive.63 Subjective intention alone is not sufficient; rather, according to general opinion, it is necessary that the exercise of the right does not objectively bring any advantage to the entitled party and that it is carried out exclusively with the intention of harming another party.64 However, since troublemakers usually also pursue factual issues – the legitimacy of which are debatable – recourse to an alleged lack of need for legal protection is unlikely to be a promising way of dealing with troublemaking behaviour. d) Fines for Abuse and Maliciousness Whereas the courts – this applies to both the ordinary and the specialised courts – de lege lata have only few possibilities of rejecting or not dealing with submissions that are deemed to be querulous, the situation is different at the Federal Constitutional Court. Apart from the possibility of not accepting constitutional complaints for lack of sufficient grounds,65 the Federal Constitutional Court may impose a fine of up to E2,600 under § 34.2 of the BVerfGG if the filing of the constitutional complaint constitutes an abuse. This provision is intended to discourage the filing of unfounded complaints and, at the same time, to ensure the Court’s ability to do its work.66 In doing so, the court has categorised different classes of cases of abuse, because not every obviously futile application also proves to be abusive:67 procedural motions with insulting or offensive content,68 procedural motions by incorrigible complainants who have already been admonished in previous proceedings,69 procedural motions with deceptive content70 or with allegations devoid of any factual relevance,71

63 Cf. Ehlers, Allgemeine Sachentscheidungsvoraussetzungen verwaltungsgerichtlicher Rechtsschutzanträge, in: Ehlers/Schoch (eds.), Rechtsschutz im öffentlichen Recht, § 25 mn. 248. 64 Cf. also Schenke, in: Kopp/Schenke (eds.), VwGO, Vorb. zu § 40 mn. 52; cf. also this case law: VG Meiningen, NVwZ-RR 1996, 720; OLG Frankfurt, NJW 1979, 1613. 65 Cf. Hettchen, in: Burkiczak/Dollinger/Schorkopf (eds.), BVerfGG, § 93 mn. 20 et seq.; Magen, in: Burkiczak/Dollinger/Schorkopf (eds.), BVerfGG, § 92 mn. 53 et seq.; Schwarz, Verfassungsprozessrecht, § 12 mn. 104 et seq. 66 Cf. Klein, in: Benda/Klein (eds.), Verfassungsprozessrecht, § 17 mn. 405. 67 For a detailed treatment, cf. also Klein, in: Benda/Klein (eds.), Verfassungsprozessrecht, § 17 mn. 406; Reiter, in: Burkiczak/Dollinger/Schorkopf (eds.), BVerfGG, § 34 mn. 35 – 43. 68 BVerfG (K), NJW 1999, 207 on calling a judge “arrogant and impertinent”; NJW 2004, 2959 zu allgemein beleidigenden Äußerungen. 69 BVerfG (K), NJW-RR 2005, 1721 on the imposition of a fine on a lawyer who, after three unsuccessful constitutional complaints, again lodged a constitutional complaint with a largely identical submission despite being advised not to do so by the judge. 70 BVerfG (K), NVwZ 2017, 1698 regarding making false statements because of an allegedly imminent deportation. 71 BVerfG (K), NJW 2002, 955 regarding recklessly making false statements.

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motions completely devoid of substance72 or irrelevant motions73 as well as motions that serve the pursuit of purposes unrelated to the proceedings.74 The decision on the imposition of a fine for abuse is at the court’s discretion; this applies both to the question of whether such a fine should be imposed at all and also as to the amount of the fine to be set.75 The decision on the setting of such fines is in principle – with the exception of a violation of the right to be heard76 – not subject to appeal.77 Insofar as, in order to avoid querulous submissions – at least for constitutional court proceedings – on the one hand, the introduction of mandatory representation by lawyers78 and, on the other hand, the option of fines for maliciousness79 for potentially futile constitutional complaint proceedings is under discussion. This takes into account the idea that a functioning and effective constitutional court system is a core element of a constitutional state based on the rule of law.80 It would also make clear to citizens, that they ought really get fined for recourse by means of the remedy of constitutional complaint in cases of obviously futile matters.81 However, such proposals have not found a parliamentary majority and have therefore not been pursued further. In view of the procedural rules affording litigants with reminders and judicial review of the fee assessments, it is obvious that real relief of the court’s burden of a massive workload could really hardly ever be achieved that way.

72 BVerfG (K), NJW 1996, 1273 (constitutional complaint against driving ban and fine for repeat offender); in the words of the Federal Constitutional Court, it was a “meaningless use of its working capacity”; NJW 2012, 143 regarding a fine for filing a manifestly inadmissible application for reinstatement in a constitutional complaint filed out of time. 73 BVerfG (K), NJW 1992, 1952 (Order for costs after discontinuation of the proceedings in the amount of E16); NJW 1995, 1418 (Recovery of a fee in the amount of E3.83); NJW 1996, 1273 et seq. Regarding a constitutional complaint against the recovery of a fee in the amount of E21 for stopping in a no stopping zone. 74 BVerfGE 54, 39 (42) concerning the obvious delay of an administrative court proceedings. 75 Cf. also Klein, in: Benda/Klein (eds.), Verfassungsprozessrecht, § 17 mn. 408; Reiter, in: Burkiczak/Dollinger/Schorkopf (eds.), BVerfGG, § 34 mn. 46. 76 Cf. Klein, in: Benda/Klein (eds.), Verfassungsprozessrecht, § 17 mn. 411. 77 BVerfGE 133, 163 (167). 78 Cf. Magen, in: Burkiczak/Dollinger/Schorkopf (eds.), BVerfGG, § 92 mn. 17, who rightly points out that the lack of compulsory legal representation is also a question of citizen friendliness. 79 Cf. Schluckebier, ZRP 2012, p. 133 et seq. written from the perspective of a judge of the Federal Constitutional Court. 80 According to the then Minister of Justice Schmidt-Jortzig in the foreword to the Commission Report “Relieving the Federal Constitutional Court”, published by the BMJ, 1997. 81 Cf. also Schluckebier, ZRP 2012, 133 (134).

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V. Summary and Outlook As true as the statement of the Federal Constitutional Court is that the court does not have to accept that “… it can only grant citizens the fundamental rights protection they deserve with delay because it is overburdened with insubstantial trivialities and is kept from its actual task …”,82 the rule of law must nevertheless take into account the fact that troublemakers are a phenomenon that cannot be countered with means that no longer meet the requirements of the rule of law. Where the rule of law offers legal protection, these possibilities may in principle also be used within the framework of the procedural rules. Whether the legislature should standardise alternative ways of dealing with cases of abuse, such as general fines for abusing the court, which could also have of a deterrent nature, must be carefully considered, since the imposition of such fines frequently only provokes further legal disputes, which then leads to an even greater strain on the resource “rule of law”. Only in exceptional cases may the state actually deny the legitimacy of a claim when, from any conceivable point of view, there is no apparent basis for the party’s argument to the proceedings; otherwise, it remains the case that the rule of law is a laborious occupation precisely in dealing with those who challenge it. Bibliography Benda, Ernst/Klein, Eckart/Klein, Oliver (eds.): Verfassungsprozessrecht, 4th edition, Heidelberg 2020. Berger, Sven/Partsch, Christoph J./Roth, Jürgen/Scheel, Christopher (eds.): Informationsfreiheitsgesetz: IFG, 2nd edition, Cologne 2013. Brenner, Michael/Hahn, Daniel: Bundeswehr und Auslandseinsätze, JuS 2001, pp. 729 – 735. Burkiczak, Christian: Ein Entsendungsgesetz für die Bundeswehr, ZRP 2003, pp. 82 – 86. Burkiczak, Christian/Dollinger, Franz Wilhelm/Schorkopf, Frank (eds.): Bundesverfassungsgerichtsgesetz, 2nd edition, Heidelberg 2022. Dreier, Horst (ed.): Grundgesetz Kommentar, Vol. 1, 3rd edition, Tübingen 2015. Dürig, Günter/Herzog, Roman/Scholz, Rupert: Grundgesetz Kommentar, 99. EL, Munich 2022. Ehlers, Dirk: Allgemeine Sachentscheidungsvoraussetzungen verwaltungsgerichtlicher Rechtsschutzanträge, in: Ehlers, Dirk/Schoch, Friedrich (eds.): Rechtsschutz im öffentlichen Recht, Berlin 2021, § 25. Ehrlich, Eugen: Schweizerische Juristenzeitung, 1952, pp. 329 – 334. Engel, Albert: Das “schwierige Publikum” – über den Umgang mit Querulanten, VR 2022, pp. 117 – 127. Fehling, Michael/Kastner, Berthold/Störmer, Rainer (eds.): Verwaltungsrecht Handkommentar, 5th edition, Baden-Baden 2021. 82

BVerfG (K), NJW 1995, 1418 – std. Rspr.

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Hölscheidt, Sven/Limpert, Martin: Einsatz der Bundeswehr innen und außen, JA 2009, p. 86 – 89. Jhering, Rudolf von: Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung, Part 2, Vol. 2, Leipzig 1858. Kirchhof, Paul: Nichtsteuerliche Abgaben, in: Isensee, Josef/Kirchhof, Paul (eds.): Handbuch des Staatsrechts, Vol. 5, 3rd edition, Heidelberg 2007, § 119. Kleist, Heinrich v.: Michael Kohlhaas, Berlin 1810. Kloepfer, Michael/Lewinski, Kai von: Das Informationsfreiheitsgesetz des Bundes (IFG), DVBl. 2005, pp. 1277 – 1288. Kopp, Ferdinand O./Schenke, Wolf-Rüdiger (eds.): Verwaltungsgerichtsordnung, 26th edition, Munich 2020. Korioth, Stefan: Finanzen, in: Voßkuhle, Andreas/Eifert, Martin/Möllers, Christoph (eds.): Grundlagen des Verwaltungsrechts, Vol. 2, 3rd edition, Munich 2022, § 42. Krüger, Philipp L.: Das Informationsfreiheitsgesetz des Bundes – Reformüberlegungen aus behördlicher Sicht, ZRP 2018, pp. 79 – 81. Ladiges, Manuel: Grenzen des wehrverfassungsrechtlichen Parlamentsvorbehalts, NVwZ 2010, pp. 1075 – 1078. Léopold, Anders: Die Kartellbehörden im Angesicht der Informationsfreiheit, WuW 2006, pp. 592 – 598. Lindemann, Michael: Pathologischer Rechtsmissbrauch oder verdienstvoller “Kampf um’s Recht”? – Zum Umgang des Rechtssystems mit “querulatorischen” Eingaben, in: Dudeck, Manuela/Kaspar, Johannes/Lindemann, Michael (eds.): Verantwortung und Zurechnung im Spiegel von Strafrecht und Psychiatrie, Baden-Baden 2014, pp. 135 – 166. Mangoldt, Hermann v./Klein, Friedrich/Starck, Christian (eds.): Grundgesetz – Kommentar, 7th edition, Munich 2018. Raabe, Marius/Helle-Meyer, Niels: Informationsfreiheit und Verwaltungsverfahren – Zum Verhältnis neuer und klassischer Informationsrechte gegenüber der Verwaltung, NVwZ 2004, pp. 641 – 647. Röben, Volker: Der Einsatz der Streitkräfte nach dem Grundgesetz, ZaöRV 2003, pp. 585 – 603. Schluckebier, Wilhelm: Warum hält das Bundesverfassungsgericht eine “Mutwillensgebühr” für erforderlich?, ZRP 2012, pp. 133 – 135. Schmidt-Jortzig, Edzard: In the foreword to the Commission Report “Relieving the Federal Constitutional Court”, published by the BMJ, 1997. Schoch, Friedrich: Informationsfreiheitsgesetz, 2nd edition, Munich 2016. Schröder, Florian: Das neue Parlamentsbeteiligungsgesetz, NJW 2005, pp. 1401 – 1404. Schwarz, Kyrill-Alexander: Verfassungsprozessrecht, Munich 2021. Sellmann, Christian/Augsberg, Steffen: Chancen und Risiken des Informationsfreiheitsgesetzes, WM 2006, pp. 2293 – 2301. Sodan, Helge/Ziekow, Jan (eds.): Verwaltungsgerichtsordnung – Großkommentar, 5th edition, Heidelberg 2018.

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Spindler, Gerald: Informationsfreiheit und Finanzmarktaufsicht, ZGR 2011, pp. 690 – 731. Thym, Daniel: Zwischen “Krieg” und “Frieden”: Rechtsmaßstäbe für operatives Handeln der Bundeswehr im Ausland, DÖV 2010, pp. 621 – 630. Waldhoff, Christian: Abgabenrecht, in: Ehlers, Dirk/Fehling, Michael/Pünder, Hermann (eds.): Besonderes Verwaltungsrecht, Vol. 3, 4th edition, Heidelberg 2021, § 67. Walser, Martin: Finks Krieg, Frankfurt am Main 1996. Wiefelspütz, Dieter: Die militärische Integration der Bundeswehr und der konstitutive Parlamentsvorbehalt, ZaöRV 2004, pp. 363 – 389. Ziekow, Jan/Debus, Alfred G./Musch, Elisabeth: Evaluation des Gesetzes zur Regelung des Zugangs zu Informationen des Bundes – Informationsfreiheitsgesetz des Bundes (IFG) – on behalf of the Committee on Internal Affairs of the German Bundestag, 2012. Zippelius, Reinhold: Juristische Methodenlehre, 12th edition, Munich 2021.

Probabilism in Legal Interpretation* By Alex Stein**

I. Theories of Interpretation Rules that appear in constitutions and statutes are cast in words. Do those words have an objectively ascertainable meaning? For many decades, this fundamental question has been the subject of an ongoing debate implicating disciplines as diverse as philosophy, political theory and sociology.1 The debate’s participants split into five distinct schools of legal interpretation, identified as textualism, intentionalism, purposivism, pragmatism and fiatism. Textualism follows the “meaning at birth” approach: it interprets a statutory or constitutional provision in accordance with how the provision was generally understood when it was put in place.2 For example, in applying a statutory rule that prohibits the use of “vehicles in parks,” textualist judges ought to find out what means of transportation and types of land were ordinarily included in the words “vehicle” and “park” at the time of the rule’s enactment. Intentionalism, by contrast, focuses on the subjective intent of the provision’s drafters.3 Correspondingly, in ascertaining what “no vehicles in parks” means, an intentionalist judge ought to find out what the rule’s drafters intended to communicate by the words “vehicle” and “park.” If she finds credible evidence indicating that the drafters intended to limit the prohibition’s scope to automobiles and public recreational lands, she should interpret the words “vehicle” and “park” in accordance with this intent, notwithstanding the misalignment between that narrow interpretation and ordinary language. Under both textualism and intentionalism, words and sentences of a statutory or constitutional provision must be traced back and tied to the authority – the provision’s drafters – that brought those words and sentences into existence. For that reason, * This is a shortened version of the article that originally appeared in Iowa Law Review Vol. 107 (2022), pp. 1389 – 1437. ** Prof. Dr. Alex Stein is a Justice of the Israel Supreme Court. 1 See generally Marmor/Soames (eds.), Philosophical Foundations of Language in the Law. 2 See, e. g. Nourse, Textualism 3.0: Statutory Interpretation After Justice Scalia, Alabama Law Review 70 (2019), pp. 680 – 684; Nelson, What Is Textualism?, Virginia Law Review 91 (2005), pp. 351 – 353. 3 See, e. g., Alexander, Connecting the Rule of Recognition and Intentionalist Interpretation: An Essay in Honor of Richard Kay, Connecticut Law Review 52 (2021), pp. 1522 – 1525.

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these schools of thought connect to the broader notion of originalism.4 Textualism proceeds on an irrebuttable presumption that the provision’s drafters communicated their command to the subjects by using ordinary language.5 Under intentionalism, this presumption is rebuttable: credible evidence indicating that the drafters intended to communicate something different will override the ordinary language.6 Purposivism, in contrast, derives the meaning of legal words and sentences from the unstated – yet, underlying – purpose of the provision that contains those words and sentences.7 This approach employs the so-called “mischief rule” that purports to reconstruct the lawmaker’s goal or intent by prompting judges to identify – analytically or empirically – the mischief that the provision aims to quell or abate.8 For example, when the history, the rationale or other credible background information indicates that the provision “no vehicles in parks” was enacted to prevent damage to the environment, purposivist judges will tend to interpret “vehicle” as limited to transportation using fossil fuels and possibly to expand the meaning of “park” to include privately owned recreational lands – regardless of whether the drafters of the rule had all that in mind. Textualism, intentionalism, and purposivism are being challenged by pragmatism and fiatism. From a pragmatist perspective, words such as “vehicle”, “park” and all other legal terms have no fixed or objectively ascertainable meaning and are open to multiple interpretations.9 As a result, a judge ought to assume the role of a benevolent legislator or trustee and inject meaning into the words of constitutions and statutes in a way that best serves societal interests at a given point in time.10 For example, when a pragmatist judge finds out that the parks’ massive invasion by bicycle riders creates a

4 See generally Wurman, A Debt Against the Living: An Introduction to Originalism, pp. 11 – 24; McGinnis/Rappaport, Unifying Original Intent and Original Public Meaning, Northwestern University Law Review 113 (2019), pp. 1375 – 1388. 5 See, e. g., Tobia/Mikhail, Two Types of Empirical Textualism, Brooklyn Law Review 86 (2021), pp. 461 – 462. 6 See, e. g., Buchanan/Dorf, A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism, Cornell Law Review 106 (2021), p. 628. 7 See Eskridge/Frickey, Statutory Interpretation as Practical Reasoning, Stanford Law Review 42 (1990), p. 324; Manning/Stephenson, Legislation and Regulation, Cases and Materials, p. 24; see also Manning, What Divides Textualists from Purposivists?, Columbia Law Review 106 (2006), pp. 85 – 91 (hereinafter What Divides Textualists from Purposivists?); Krishnakumar, Backdoor Purposivism, Duke Law Journal 69 (2020), p. 1275. 8 See Bray, The Mischief Rule, Georgetown Law Journal 109 (2021), p. 970. See also Hart/ Sacks, The Legal Process, p. 1374; Benjamin/Renberg, The Paradoxical Impact of Scalia’s Campaign Against Legislative History, Cornell Law Review 105 (2020), pp. 1033 – 1045. 9 See Posner, What Has Pragmatism to Offer Law?, Southern California Law Review 63 (1990), pp. 1656 – 1660. 10 See Cardozo, The Nature of the Judicial Process, p. 66 (“The final cause of law is the welfare of society.”).

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socially inefficient congestion while denying other visitors enjoyment of the park, she can interpret “vehicle” to include bicycles.11 Fiatism is a concept defined by the philosopher Borden Parker Bowne as “the fancy that we can make things over to suit ourselves by renaming them.”12 The phenomenon it describes has been – and still is – the raison d’être of the critical schools of thought that reject textualism, intentionalism, purposivism, and pragmatism altogether.13 These schools include critical legal studies, critical race theory, as well as some of the Marxist and feminist approaches to law.14 The common denominator of these schools of thought is the ever-present nexus between language and power.15 Theorists who affiliate themselves with these schools maintain that legal concepts – such as “offer,” “acceptance” and “intent” – and many other legal words – such as “vehicle” and “park” – are inherently ambiguous because they are abstract and have no direct referents in the real world. This feature opens the words to multiple interpretations, thereby giving judges a broad power to determine the actual meaning of the law.16 However, unlike pragmatists, critical legal scholars maintain that judges do not act as trustees for society as a whole. On the contrary, according to those scholars, judges act for the benefit of the rulers who put them in that position and for the benefit of the well-to-do classes that the rulers – and judges themselves – represent.17 Within the framework of fiatism, critical legal scholars also maintain that legal terms are arranged into dichotomies: good faith vs. bad faith; negligence vs. adequate care; adverse vs. non-adverse possession; and so forth.18 According to their argument, such dichotomies are false because any of them can be deconstructed in a way that will show that the realities they purport to categorize on a yes-or-no basis escape that categorization.19 In fact, those realities form a continuum situated 11 Cf. Merrill, Legitimate Interpretation – Or Legitimate Adjudication?, Cornell Law Review 105 (2020), pp. 1397 – 1400. 12 Bowne, The Passing of Educational Fiatism, Pacific Philosophical Quarterly 4 (1923), p. 77. This concept has also been used in Fuller, Reason and Fiat in Case Law, Harvard Law Review 59 (1946), p. 376; and in the canonical – yet, still controversial – article by Wechsler, Toward Neutral Principles of Constitutional Law, Harvard Law Review 73 (1959), p. 11. 13 See, e. g., Hutchinson/Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, Stanford Law Review 36 (1984), p. 211. 14 See generally Schlegel, Critical Legal Studies: An Afterword, Stanford Law Review 36 (1984), p. 673. 15 See Winter, The “Power” Thing, Virginia Law Review 82 (1996), pp. 795 – 780. 16 See generally Kennedy, Form and Substance in Private Law Adjudication, Harvard Law Review 89 (1976), p. 1685 et seq.; Peller, The Metaphysics of American Law, California Law Review 73 (1985), p. 1151 et seq. 17 See, e. g., Peller, The Metaphysics of American Law, California Law Review 73 (1985), at 1151 – 1290. 18 See Kennedy, Form and Substance in Private Law Adjudication, Harvard Law Review 89 (1976), at 1732 – 1737, 1766 – 1777. 19 Kennedy, Form and Substance in Private Law Adjudication, Harvard Law Review 89 (1976), at 1732 – 1737.

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between the two dichotomized extremes. As a result, judges are free to categorize them either way.20 This feature, too, makes words of the law radically indeterminate; and when indeterminacy carries the day, fiatism triumphs over reason and, as a result, might makes a right. From that perspective, what judges say about the meaning of “no vehicles in parks” and other words of the law turns out to be a political determination catered to the ruling classes while being dressed up – and thereby legitimized – as a legal ruling.21 This Article offers an alternative theory of interpretation identified as probabilism. At its core, probabilism maintains that judges should view legal rules as a communication between individuals. The parties to that communication are the lawmakers, who give their commands in the form of rules, and the individuals who receive those commands. What these commands say and do not say is a purely empirical fact. Correspondingly, in order to identify the content of such communications, judges should proceed in the same way they carry out factfinding in a bench trial. Under probabilism, the question “What was communicated by the individuals who drafted the statute prohibiting the use of vehicles in the park”? is a question of a potentially uncertain fact. This question is conceptually no different from the empirical question “What was communicated by Jane Roe to John Doe on January 1, 2020? when she wrote him a note saying that he should not use any of his vehicles in the park”.22 To answer any such question under probabilism, judges ought to proceed in three steps. First, judges ought to consider all available information that pertains to the interpretive task they are facing. Second, judges ought to specify and analyze all the probable meanings of the rule as a communication coming from its maker – the legislator or the constitution’s founders. Third and finally, among all probable meanings of the rule, judges should adopt the one they deem most probable to be factually correct. To that end, judges should determine the probability that the provision’s drafters have chosen its wording to communicate the meaning under consideration. As I explain in the pages ahead, this approach uses the conventional evidentiary principles to resolve questions of statutory and constitutional interpretation. Specifically, probabilism combines the original public meaning of the underlying statutory or constitutional provision with the evidence concerning the drafters’ intent and the applicable default rules to find out what the drafters likely meant to say. By following probabilism, judges will enhance the accuracy of their decisions and accomplish their mission as faithful agents of the legislature and the people. The remainder of this Article proceeds as follows. In Part II, I introduce probabilism and explain its mechanics. In Part III, I analyze the recent United States Supreme 20 Kennedy, Form and Substance in Private Law Adjudication, Harvard Law Review 89 (1976), at 1732 – 1737. 21 Kennedy, Form and Substance in Private Law Adjudication, Harvard Law Review 89 (1976), at 1732 – 1737. 22 Cf. Zeppos, Legislative History and the Interpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, Virginia Law Review 76 (1990), pp. 1335 – 1341.

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Court decision, Bostock v. Clayton County,23 that spurred controversy among the originalist justices as to how to determine the meaning of the word “sex” in Title VII of the Civil Rights Act of 1964 – that outlawed workplace discrimination on the basis of “race, color, religion, sex, or national origin”24 – and whether it encompasses sexual orientation as well. The following analysis questions the Justices’ fundamental premise associating the originalist text-oriented and intent-based “fixation thesis”25 with the certainty of meaning. Specifically, I show that this association is responsible for the logical inconsistencies that plague both the majority opinion and the dissent, and then move on to demonstrate that statutory and constitutional meanings need not be certain and can be determined probabilistically. Furthermore, I demonstrate that under the probabilistic approach that utilizes all relevant evidence – including the information generated by applying Ludwig Wittgenstein’s concept of “family resemblance”26 – the word “sex” unquestionably includes the lesbian, gay, bisexual and transgender ways of life, thereby extending the Title VII protection to the LGBT community.

II. Introducing Probabilism Evidence theory has developed three fundamental insights that can improve the ways in which judges determine the factual meanings of ambiguous statutory and constitutional provisions. The first and most basic insight is the need to set up standards of proof: rules that determine the probability thresholds for factual findings under uncertainty, such as “preponderance of the evidence,” “clear and convincing evidence” and “proof beyond a reasonable doubt.”27 The second insight is the social utility in setting up default rules, or tie-breakers, in the form of rebuttable presumptions that will instruct courts on how to resolve disagreements in certain predetermined types of cases.28 The third insight is about evidence-selection: rules that ensure that courts use evidence that rationally facilitates factfinding and do not consider evidence that is wasteful, irrelevant or misleading.29

23

Bostock v. Clayton County, 140 S. Ct. 1731 (2020). 42 U.S.C. § 2000e–2(a)(1). 25 See Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, Notre Dame Law Review 91 (2015), p. 1 et seq. 26 See Wittgenstein, Philosophical Investigations, §§ 65 – 71, G.E.M. Anscombe trans. 27 For exposition and analysis of these standards see Stein, Foundations of Evidence Law, pp. 143 – 153. 28 Stein, Foundations of Evidence Law, pp. 151 – 152. 29 Stein, Foundations of Evidence Law, pp. 154 – 167; see also generally Stein, Inefficient Evidence, Alabama Law Review 66 (2015), p. 423 et seq. 24

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These three insights define probabilism – a method that courts have been using in carrying out factfinding tasks since time immemorial.30 This method highlights the necessity of having secondary rules that will instruct courts on how to determine individuals’ primary rights, duties and obligations under conditions of uncertainty. As stated in the Introduction, I posit that judges should use the same factfinding method – and an analogous set of secondary rules – in determining the meanings of unclear legal provisions: human communications that appear in statutes and constitutions. The use of probabilism as a theory of legal interpretation is not as simple as it appears to be because it depends on the meaning of the legal “meaning”.31 As Professor Richard Fallon put it, “We need to know what we are looking for before we can ascertain whether the evidence sufficiently establishes what needs to be proved.”32 Under probabilism, the meaning of a statutory or constitutional provision that needs to be ascertained is the communication intended by the provision’s drafters as encapsulated in the words and the sentences they chose to use. As a result, the interpreters need to discover, as an empirical fact, what the drafters’ intent was and how it was manifested in the provision’s words and sentences. Empirical facts are virtually never certain and can only be probable.33 Communications encapsulated in the words and sentences of the lawmaker are no exception to this general observation.34 Judges effectively never have enough information to determine the meaning of those communications with certainty. Consequently, they have no choice but to base their interpretive decisions upon probability. Under such circumstances, judges facing an unclear statutory or constitutional provision would have to identify its possible meanings by considering every relevant evidence and then determine which of those meanings is most probable. To make that determination, judges would have to ask themselves and answer the following question: Which of the provision’s available meanings represents what its drafters most likely intended to communicate through the language they chose to use? To answer this question, judges must proceed in two steps. First, they need to identify the provision’s plausible meanings. To this end, the judges need to determine what the drafters’ language could communicate to people at the time it was used. Second, after identifying the provision’s plausible meanings, judges need to determine, in relation to each identified meaning, how probable it is that the drafters chose to use the language they used to communicate this particular meaning, as opposed to an alternative meaning. In carrying out this task, judges ought to consider every relevant 30 See Allen/Stein, Evidence, Probability and the Burden of Proof, Arizona Law Review 55 (2013), pp. 565 – 575. 31 See Fallon Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, University of Chicago Law Review 82 (2015), p. 1235 et seq. 32 Fallon Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, University of Chicago Law Review 82 (2015), p. 1252. 33 See Ayer, Language, Truth and Logic, p. 19. 34 This observation lies at the heart of philosophical empiricism. See ibid.

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and potentially credible evidence, including the provision’s history and purpose, and how the provision’s words and sentences were understood at the time of its enactment. This interpretive methodology has two advantages. The first of these advantages is factualism35 : this methodology enhances the accuracy of courts’ decisions that ascribe meanings to unclear statutory and constitutional provisions. The second and equally important advantage is separation of powers: probabilism forces judges to act as faithful agents of the legislature and the people. As a threshold matter, the interpreters of statutory and constitutional provisions ought to acknowledge that they would not be able to carry out their task in the absence of standards of proof, presumptions and other secondary rules. When secondary rules do not exist and the meaning of the underlying legal provision is unclear, there is no way to ascertain what that provision likely means. As I already indicated, the absence of secondary rules is the principal shortcoming of the two versions of originalism: textualism and intentionalism. Each of these schools of thought endorses the “fixation thesis” postulating that words of the statute and the constitution acquire their fixed meanings at the time of the enactment. As a result, textualism only works well when the underlying legal provision has a readily ascertainable ordinary meaning, while leaving the judges in a state of impasse in all other cases.36 By the same token, intentionalism works well when the drafters’ intent as to what the underlying provision means is crystal clear, but it offers no tie-breaking rules for cases in which this intent is uncertain. As a result, judges who practice originalism find themselves in an impasse when they encounter a statutory or constitutional provision that can be plausibly interpreted in more than one way. To avoid such an impasse, judges should stop using textualism and intentionalism in their pure forms. Instead, they should try to establish which of the available meanings of the underlying legal provision represents what its drafters most likely intended to communicate by using the language they chose to use. Hence, judges should follow probabilism. 1. Standard of Proof Acknowledging that secondary rules are indispensable for legal interpretation does not yet establish what those rules should ordain. However, the initial task faced by the legal system, is unmistakably clear: the system ought to set up standards of proof in the form of probability thresholds that will allow judges to make factual findings necessary for ascertaining the meanings of unclear laws. The process of formulating those standards turns out to be much easier than designing the standards of proof for the general law of evidence. Under the general law of evidence, standards of proof come in the form of probability thresholds for decisions that determine the risks of error that factfinders can and cannot assume: “preponderance of the evidence,” 35 36

Ayer, Language, Truth and Logic, pp. 23 – 24. Ayer, Language, Truth and Logic, p. 12.

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“clear and convincing evidence,” and “proof beyond a reasonable doubt.”37 The nature of the risk of error varies from one decisional context to another. In criminal cases, the risk of convicting an innocent defendant differs from the risk of acquitting a guilty offender, as well as from the risk of denying an excusatory defense to a defendant proven beyond a reasonable doubt to have committed the underlying offense.38 In civil cases, the risk of erroneously depriving a person of her money or property differs from the risk of a mistaken deportation, denial of parental rights, or confinement to a mental institution; and so forth.39 This variability complicates the lawmakers’ task. In the domain of statutory and constitutional interpretation, however, things are different because the risks of error on both ends are stable and symmetrical. To see why, consider a hypothetical scenario in which facts supporting the ascription of meaning A to the underlying statutory or constitutional provision are as likely to be present as the facts indicating that the provision actually means to say B rather than A. To stay within the bounds of this hypothesis, assume further that in arriving at the conclusion that A is as probable as B, judges did everything they were supposed to do: they considered every piece of available evidence pertaining to the question “A or B?” while ignoring misleading and irrelevant evidence. Under such circumstances, probabilism tells us that the judges can decide the case either way. Decision A would be as good as decision B: both decisions are equally justified on factual grounds. Importantly, the fact that there is, or might be, a reason to believe that adopting meaning A over B, or vice versa, will make society better off is immaterial. This reason has nothing to do with the factual grounds of the underlying legal provision that have been fully accounted for. Similar to all other factfinding endeavors, the inquiry into the provision’s meaning is empirical rather than normative: it is about the “is”, not the “ought.” This abstract scenario lays the groundwork for setting up the general probability threshold, or standard of proof, for the domain of legal interpretation. The requisite standard should be set at the preponderance of the evidence. That is, when the facts indicating that the provision in question means A are more probable than not, judges should interpret the provision as saying A rather than anything else. Under probabilism, A wins the day because it is comparatively the most probable meaning of the provision. That is, A wins the day because the provision’s drafters most likely intended to communicate A by using the language they chose to use. Choosing A over B thus enhances the accuracy of the judges’ decisions and aligns with the judges’ duty to act as faithful agents for the legislature and society as a whole. Notably, this standard of proof was implicitly present in the old rule that instructed courts to interpret an ambiguous statutory or constitutional provision by adopting the provision’s better-at-

37

See Stein, Foundations of Evidence Law, pp. 143 – 153. Stein, Foundations of Evidence Law, pp. 148 – 151. 39 Stein, Foundations of Evidence Law, pp. 143 – 148, 151 – 153.

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tested historical meaning.40 This rule has been uncovered and discussed in a recent article by Professors John McGinnis and Michael Rappaport, who claim, on originalist grounds, that “at the time of the Constitution’s enactment a legal interpretive rule […] required interpreters to choose the better supported interpretation,” and that “the 51 – 49 rule – the rule that directs the interpreter to choose the better interpretation of a provision, even if it is only slightly better – is a key to reducing uncertainty.”41 This formulation of the requisite standard of proof raises the question about the nature of the probability that judges should use in determining the meanings of unclear statutory and constitutional provisions. Probability is often understood as referring to statistical information cast in mathematical language.42 For the most part, this understanding has been rejected by the courts of law.43 In courts, probability predominantly refers to the relative plausibility of the competing concrete accounts of factual events, formulated as stories.44 This feature derives from the irreducibly second-personal nature of legal entitlements, obligations and responsibilities that attach to the rightholder, on one side, and to the duty-bearer, on the opposite side. Correspondingly, facts that courts need to ascertain ought to be second-personal as well. Courts must only rely upon second-personal evidence, that is: upon case-specific information concerning the alleged jural relationship between the holder of the underlying entitlement and the bearer of the correlative duty or obligation.45 Statistical distributions will not do. Courts should proceed in the same way in determining the probabilities of factual accounts that ascribe meanings to the lawmaker’s communications. Whether one such account is more probable than its competitors depends on the accounts’ relative plausibility. There are no mathematical algorithms for plausibility: what informs courts’ evaluations of plausibility are all the experience-based factors that convince people that some story may be true and another story may be false. These factors include coherence, consistency, completeness, articulation, simplicity and evidential support or consilience.46 Based on these factors, courts consider the competing accounts and decide which is superior and wins the day. To win the plausibility contest under the preponderance standard, evidence must unfold a narrative that makes the 40 See McGinnis/Rappaport, The Power of Interpretation: Minimizing the Construction Zone, Notre Dame Law Review 96 (2021), p. 938. 41 Ibid. See also ibid. at 942. 42 See Stein, The Flawed Probabilistic Foundation of Law & Economics, Northwestern University School of Law 105 (2011), pp. 207 – 222. 43 Ibid. at 235 – 246; see also Allen/Stein, Evidence, Probability and the Burden of Proof, Arizona Law Review 55 (2013), pp. 567 – 571. 44 Allen/Stein, Evidence, Probability and the Burden of Proof, Arizona Law Review 55 (2013), pp. 567 – 571. 45 See Stein, in: Dahlman/Stein/Tuzet (eds.), Philosophical Foundations of Evidence Law, p. 96. 46 Allen/Stein, Evidence, Probability and the Burden of Proof, Arizona Law Review 55 (2013), p. 568.

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most sense.47 Among the prima facie plausible accounts as to what the underlying statutory or constitutional provision means to communicate, the court should select the account that gets the overall highest score on coherence, consistency, completeness, articulation, simplicity and evidential support.

2. Tie-Breakers For cases involving two or more equally plausible understandings of the underlying provision, the legal system needs to set up default or tie-breaking rules.48 One such tie-breaker, which many legal systems actually use, comes in the form of the rule that instructs interpreters to adopt the provision’s current ordinary meaning when everything else is equal.49 This tie-breaker is related to the drafters’ forward-looking standpoint.50 When the provision in question is open to two or more equally plausible understandings, selecting the understanding that reflects the current ordinary meaning of the provision has a better chance to hit the mark because the drafters may have intended the provision to track the changes in the phenomena and the social practices to which the provision’s language refers.51 For example, an old statute referring to “documents” must be understood, when everything else is equal, as extending to computerized or digital records that did not exist at the time. That is, when nothing in the statute indicates its particular preference for paper records, it is safe enough to assume that the drafters used the word “documents” to reflect the future changes in society’s documentation practices. By the same token, the word “vehicles” in the “no vehicles in the park” prohibition would include Teslas and other cars powered by electricity when everything else is equal, that is: when evidence shows that the prohibition was put in place to advance different goals that include the safety of walkers and joggers in the park. The fact that the prohibition’s drafters did not anticipate the advent of vehicles not using fossil fuels would be of no consequence because the lawmakers clearly had in mind all kinds of transportation, including those not yet developed. By contrast, things would be different with respect to a law imposing a “clean air tax” upon owners of “all vehi47 Allen/Stein, Evidence, Probability and the Burden of Proof, Arizona Law Review 55 (2013), p. 568. 48 See generally Samaha, On Law’s Tiebreakers, University of Chicago Law Review 77 (2010), p. 1661 et seq. See also Baude/Sachs, The Law of Interpretation, Harvard Law Review 130 (2017), p. 1099. 49 Cf. Scalia, A Matter of Interpretation: Federal Courts and the Law, p. 23; Whittington, Originalism: A Critical Introduction, Fordham Law Review 82 (2013), pp. 383 – 385; Fallon Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, University of Chicago Law Review 82 (2015), pp. 1250 – 1251. 50 See Whittington, Originalism: A Critical Introduction, Fordham Law Review 82 (2013), p. 385. 51 Cf. Whittington, Originalism: A Critical Introduction, Fordham Law Review 82 (2013), p. 383; Bork, The Constitution, Original Intent, and Economic Rights, San Diego Law Review 23 (1986), p. 826.

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cles” in order to reduce air pollution caused by the use of fossil fuels. This provision cannot be interpreted to cover nonpolluting cars powered by electricity. Another tie-breaker, or default rule, established by numerous legal systems, is the so-called “lenity rule” that applies in criminal cases, where it requires judges to prefer a narrow over a broad interpretation of the underlying offense upon finding both interpretations equally plausible.52 Importantly, this rule does not apply when the tiebreaker is not required.53 Thus, when the broad interpretation of the criminal prohibition is more likely to be correct than the narrow one, the court should simply adopt the broad interpretation. That is, the court must proceed on the assumption that the risks of error on both ends of the interpretive disagreement are symmetrical. Tiebreakers are being used merely to avoid impasse54 and, as a supplementary reason, to motivate drafters of statutes to be as precise as possible.55 Remarkably, the tiebreaking rules set up for the domain of legal interpretation operate similarly to presumptions under the law of evidence.56 They identify the preferred interpretation for ambiguous statutory and constitutional provisions and shift the burden of proof to the party advancing a different interpretation. Furthermore, the tie-breakers menu may also include a rule that instructs judges facing equally probable interpretations of the underlying statutory or constitutional provision to choose the interpretation that best promotes overall social welfare.57 This tie-breaker may create some common ground between probabilism, textualism, intentionalism, purposivism and pragmatism. It is important to understand, however, that this common ground will not transform probabilism into a different school of thought. Under probabilism, welfare maximization can only function as a tie-breaker rather than as the ultimate goal of the process by which judges ascertain the meanings of unclear laws. Put differently by using my terminology: welfare maximization can only be a secondary default rule of legal interpretation. This critical factor separates probabilism from purposivism and pragmatism that oftentimes put welfare maximization ahead of all other considerations. For slightly different reasons, textualism, too, cannot untie judges’ decisions from the words of the law by substituting those words with an open-ended standard such as welfare maximization. This substitution will unravel textualism. Therefore, textualism can only use welfare-maxi52

See Cleveland v. United States, 531 U.S. 12, 25 (2000); Note, The New Rule of Lenity, Harvard Law Review 119 (2006), pp. 2422 – 2423. 53 See Skilling v. United States, 561 U.S. 358, 410 (2010). 54 See Samaha, On Law’s Tiebreakers, University of Chicago Law Review 77 (2010), pp. 1661 – 1663. 55 See Baker/Krawiec, The Penalty Default Canon, George Washington Law Review 72 (2004), p. 664. 56 See Allen/Schwartz/Pardo/Stein, An Analytical Approach to Evidence: Text, Problems and Cases, pp. 755 – 761 (hereinafter: Analytical Approach to Evidence). 57 See Posner, What Has Pragmatism to Offer Law?, Southern California Law Review 63 (1990), pp. 1656 – 1657, 1667.

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mization (or another chosen value, such as equality) as a tie-breaker, similarly to probabilism. As far as intentionalism is concerned, this approach cannot simply adopt welfare maximization or another tie-breaker for cases in which the drafters’ intent is unclear. Thus, applying a tie-breaker will not fix the fundamental problem that intentionalism suffers from because tie-breakers cannot determine what was an “unclear intent.” To separate the “clear intent” cases from the “unclear intent” cases governed by the tiebreaker, intentionalism would need to set up a standard of proof for the uncertain evidence to determine what was the drafters’ intent. Critically, the adoption of any such standard would undo intentionalism. Setting the requisite standard too high would make the drafters’ intent virtually unprovable, which would let the welfare-maximizing tie-breaker seize the domain of interpretation, thereby transforming intentionalism into some version of pragmatism or purposivism. On the other hand, setting the standard at preponderance of the evidence, in tune with my proposal, would transform intentionalism into probabilism.58 3. Language, “Family Resemblances” and Other Evidence I now move on to discuss the mechanisms for selecting evidence under probabilism. These mechanisms track the admissibility, the judicial-notice and the permissive inference rules operating under the general law of evidence.59 Those rules prioritize evidence that provides empirical grounds for making factual findings, while excluding from the factfinders’ consideration nonfalsifiable evidence that falls into the selfasserting, self-serving and speculative categories.60 Begin with the inclusionary rule that instructs courts to consider and form their decisions based upon all potentially credible information.61 This rule provides that, in ascertaining the meaning of an unclear statutory or constitutional provision, judges must take into consideration all available evidence that can help understand the provision’s language and context. As far as language is concerned, such evidence will relate to the drafters’ intent in communicating the provision the way they did; the way in which the provision’s words and expressions have come to be understood in other legal contexts, as well as in people’s ordinary speech, at a given point in time; and so forth. Critically, in ascribing meanings to general and open-ended concepts that appear in statutes and constitutions, judges will also have to account for “family 58

The inevitability of this transformation was implicitly acknowledged by two leading originalists: see McGinnis/Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, Northwestern University Law Review 103 (2009), p. 774. 59 See Allen/Schwartz/Pardo/Stein, Analytical Approach to Evidence, pp. 56 – 58, 763, 801 – 802, 815 – 816. 60 See Stein, Foundations of Evidence Law, pp. 154 – 167; see also generally Stein, Inefficient Evidence, Alabama Law Review 66 (2015), pp. 443 – 460. 61 See Fed. R. Evid. 401, 402.

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resemblances” – generalized descriptions as to what the given concept normally encompasses or encompassed at a given point in time.62 Such general descriptions include facts “generally known within the trial court’s territorial jurisdiction” that can be judicially noticed.63 They can also be proven by evidence. Either way, “family resemblance” will function as a dependable secondary rule in cases in which the word’s or the concept’s true meaning is uncertain. Accounting for “family resemblances” involves an empirical, as well as logical, investigation into people’s linguistic and conversational practices. This important point was made decades ago by Ludwig Wittgenstein,64 whose philosophical work focused on the rule-governed aspects of people’s language – specifically, on the connection between words and their particular uses or instantiations.65 As part of this work, Wittgenstein coined the term “family resemblance” as a substitute for the words’ essential meanings.66 This term captures the ways in which people speaking the same language use and understand words as referring to “a complicated network of similarities overlapping and criss-crossing.”67 The word “game”, Wittgenstein’s prime example of a family resemblance, vividly illustrates this concept as an intricate network of meanings.68 The word “game” captures activities as diverse as soccer and poker, whose only common denominator is competition that produces winners and losers. At the same time, when a child throws a ball against the wall in order to catch it, she also engages in a game: albeit, a noncompetitive game. The games I mentioned may still have a common denominator: for example, recreation. However, once we think of professional soccer, this common denominator disappears as well, yet the word “game” stays unmodified as a proper description of the underlying activity. Similar reasoning applies to the word “vehicles” in the “no vehicles in the park rule.” As observed long ago by H.L.A. Hart, “Faced with the question whether the rule prohibiting the use of vehicles in the park is applicable to some combination of circumstances in which it appears indeterminate, all that the person called upon to answer can do is to consider … whether the present case resembles the plain case ‘sufficiently’ in ‘relevant’ respects.” 69

Hence, some words that people use have different meanings with no unifying common denominator. This language feature, however, does not produce open-endedness and indeterminacy because words are not communicated in a vacuum. Rather, they are communicated within a given conversational context. Together with the fam62

See supra note 26 and materials cited therein. See Fed. R. Evid. 201(b)(1). 64 See Wittgenstein, Philosophical Investigations. 65 Ibid. §§ 65 – 71. 66 Ibid. §§ 65 – 66. 67 Ibid. § 66. 68 Ibid. §§ 65 – 66. 69 Hart, The Concept of Law, p. 124. 63

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ily resemblance, this context allows the person to whom the communication is addressed to determine the word’s likely meaning. For example, when the expression “John is playing games” is made in the context of a discussion of John’s dealings with people, the expression will likely mean to say that John is being insincere or not serious. In this example, family resemblance and context reduce the range of interpretive possibilities to two: “insincere” and “not serious”. Thus, the listener’s next step will be to use other available information to determine which of those interpretations is more likely than the other to be correct. When words with a high level of generality are used in statutory and constitutional provisions, the interplay of context and family resemblances becomes critical. In any such case, the relevant background information, including the provision’s purpose and history, comes in handy.70 Another important contextual factor is the default and other rules of the law surrounding the provision71 and how it came to be understood and applied by governmental agencies.72 Under probabilism, courts will thus have to admit any evidence shedding light on the textual meaning or, alternatively, the motivation of the underlying statutory or constitutional provision. That is, any evidence capable of either increasing or decreasing the probability of a factual account as to what the provision means to say will be admissible and judges will have to consider it. This rule of statutory and constitutional interpretation aligns with the relevancy doctrine set up by the general law of evidence.73 Setting up the exclusionary rules for the domain of legal interpretation is fairly easy. First and most importantly, those rules should generally prioritize official records and peer-reviewed historical publications over any private opinion evidence offered by a self-motivated litigant.74 This preference aligns with the general evidentiary standards for admitting hearsay evidence75 and expert testimony.76 Private opinion evidence as to what a statutory or constitutional rule means to say generally fails to satisfy the credibility standards met by official records and professional expert testimony. Such evidence is both self-asserting and speculative.77 More often than not, it is offered on a “believe me” basis and can neither be verified nor refuted on empirical grounds. For that reason, judges should not rely on it in ascertaining the meaning of the law, save for very exceptional cases. 70

683. 71

See Manning/Stephenson, Legislation and Regulation, Cases and Materials, pp. 682 –

See Baude/Sachs, The Law of Interpretation, Harvard Law Review 130 (2017), pp. 1108 – 1112. 72 See, e. g., City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 302 (2013). 73 See, e. g., Allen/Schwartz/Pardo/Stein, Analytical Approach to Evidence, pp. 65 – 70. 74 This factfinding method originates from the “best evidence” principle. See generally Nance, The Best Evidence Principle, Iowa Law Review 73 (1988), pp. 227 – 297. 75 See Stein, Foundations of Evidence Law, pp. 154 – 167; see also generally Stein, Inefficient Evidence, Alabama Law Review 66 (2015), pp. 444 – 450. 76 Ibid. at 459 – 460. 77 Ibid. at 444, 455.

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Under probabilism, judges should also be wary of potentially self-serving evidence coming from staffers entrusted with drafting congressional committee reports and other documents that move the legislative process forward. Those staffers have an opportunity to fabricate statutes’ backgrounds in order to influence their interpretation down the road. Mindful of that opportunity and its distortionary consequences, judges should generally refrain from using staffers’ reports as evidence documenting the statute’s history.78

III. Probabilism and Bostock This part of the Article illustrates probabilism through discussion of the recent United States Supreme Court decision, Bostock v. Clayton County.79 This decision has interpreted the word “sex” in the Title VII prohibition of workplace discrimination on the basis of “race, color, religion, sex, or national origin” as encompassing sexual orientation as well.80 According to the Court, the prohibition of workplace discrimination against a member of the LGBT community is an unintended – yet logically inevitable – consequence of the drafters’ broad wording that outlawed all forms of employment-related discrimination of males as males and of females as females. An employer’s adverse treatment of a male employee for being gay, transgender or bisexual penalizes that male employee for not behaving as the employer expects males to behave.81 By the same token, an employer’s adverse treatment of a female employee for being lesbian, transgender or bisexual penalizes that female employee for not behaving as the employer expects females to behave.82 In each of these cases, the employee’s maleness or femaleness plays a role in the employer’s decision, in violation of Title VII.83 The Court based this decision on textualism.84 This path-breaking ruling was described by the dissent, written by Justice Alito, as “breathtaking arrogance”.85 The dissent analogized the Court’s allusion to textualism to a “pirate ship” that “sails under a textualist flag, but what it actually represents is a theory of statutory interpretation” authorizing courts “[to] “update” old statutes so that they better reflect the current values of society.”86 According to the dissent, the word “sex”, as used 78 See Blanchard v. Bergeron, 489 U.S. 87, 98 – 99 (1989) (Scalia, J., concurring). For a more nuanced statement of the same principle, see Manning, Textualism as a Nondelegation Doctrine, Columbia Law Review 97 (1997), p. 681. 79 See Bostock v. Clayton County, 140 S. Ct. 1731 (2020). 80 Ibid. at 1737. 81 Ibid. at 1741. 82 Ibid. 83 Ibid. 84 See ibid. at 1738 – 1742. 85 Ibid. at 1757. 86 Ibid. at 1755 – 1756.

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back in 1964 when the Civil Rights Act was put in place, could not, and hence did not, refer to a person’s sexual orientation.87 As far as logic is concerned, to demonstrate that sex discrimination and discrimination on the basis of sexual orientation are not overlapping, the dissent compiled the following table: Table 1

sex

preferred women partners

men

Women

discrimination

no discrimination

Men

no discrimination

discrimination

According to the dissent, this table demonstrates that men and women in Bostock have received equal treatment from their employers. In the employers’ eyes, sexual orientation motivating disparate treatment of employees is a reason separate from sex. The dissent held that discrimination based upon sexual orientation is not a sex-discrimination prohibited by Title VII, however morally wrong it may be.88 To further support this argument, the dissent mentioned a few unaccomplished legislative initiatives at protecting employees against being discriminated for being lesbian, gay, bisexual or transgender.89 According to the dissent, these initiatives represent the general understanding that the word “sex” in Title VII does not encompass sexual orientation.90 As far as pure logic is concerned, the dissent was right. From a purely logical standpoint, an employer who discriminates against lesbians, gays, bisexuals and transgenders does not treat a male employee differently from a similarly situated female employee. Rather, it discriminates among males and among females alike. Such discrimination is morally repugnant, but arguably not unlawful. Furthermore, the dissent’s claim that the word “sex” does not logically include “sexual orientation” could be made even stronger by considering the community of asexuals.91 Consider an employer who fires every employee, male or female, discovered to be asexual.92 This form of discrimination is depicted in the table below:

87

Ibid. at 1767. Ibid. at 1769. 89 Ibid. at 1770 – 1773, 1776 – 1778. 90 Ibid. at 1783 – 1784. 91 See Emens, Compulsory Sexuality, Stanford Law Review 66 (2014), pp. 308 – 309. 92 In New York, such practices constitute unlawful discrimination: see ibid. at 362 – 366. 88

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Table 2

sex

preferred none partners

men or women

Women

discrimination

no discrimination

Men

discrimination

no discrimination

Under this scenario, the employer treats male and female employees equally, while penalizing both males and females for being asexual, that is, for behaving “unmanly” and “unfemininely” at once. If so, what makes the LGBT discrimination different from this scenario? In the LGBT discrimination case, men are discriminated against for behaving “unmanly” and women for behaving “unfemininely” – but why should it make a difference? Could it be the case that Title VII prohibits employers from penalizing female employees for acting “unfemininely” while allowing them to adversely treat the same employees for acting “unfemininely” while exhibiting no maleness either? This weakness in the Court’s reasoning originates from its implicit assumption that the nexus between “sex” and “sexual orientation” should be determined analytically rather than empirically. Yet, the fact that the analytical ground underneath the Court’s decision is shaky does not establish that this decision was wrong. The Court’s decision could still be vindicated on empirical grounds. Arguably, by banning all kinds of employment-related sex discrimination, Title VII meant to say – quite simply, and as a matter of fact – that employers should treat all sex-related reasons as not relevant for hiring, for assigning jobs to, as well as for promoting and for firing employees. This prohibition originates from the simple factual understanding of the word “sex”. According to this understanding, an employer cannot discriminate against an employee for reasons that have to do with his or her maleness or femininity, both conventional and unconventional. This interpretation would extend the Title VII protection not only to the LGBT community, but also to asexual employees. According to the dissent, this broad interpretation of Title VII would be wrong as well, albeit not analytically wrong. To reject this interpretation, the dissent relied on Title VII’s history: absence of any references to sexual orientation in the Congress discussions, as well as the fact that the word “sex” in 1964 predominantly referred to the “male vs. female” biology.93 In the dissenters’ opinion, these historical facts indicate that Congress did not intend to extend its antidiscrimination protection to males and females whose sexual orientation might motivate their employers to treat them adversely.94 Notice that by making this argument the dissent moved the debate from textualist grounds to intentionalism.95 This move was far from accidental. The dissent could 93

See Bostock, 140 S. Ct. at 1756 – 1758. Ibid. at 1767. 95 Ibid. at 1757.

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easily establish, as it did, that the Court’s decision does not really align with textualism, but it was unable to fully vindicate its own interpretation of what “sex” does and does not encompass by simply stating that “[i]t defies belief to suggest that the public meaning of discrimination because of sex in 1964 encompassed discrimination on the basis of a concept that was essentially unknown to the public at that time.”96 To start with, homosexuality was far from unknown in 1964.97 Moreover, the dissent did not dispute the ban on gender-related stereotyping formulated in Price Waterhouse v. Hopkins98 – a Title VII precedent featuring an accomplished female accountant not “feminine” enough to become a partner at Price Waterhouse99; and it also could not dispute that not hiring, not promoting or firing an employee for reasons that have to do with his or her affiliation to the LGBT community entails gender stereotyping. In other words, the dissent resorted to textualism only offensively, rather than defensively, because Title VII’s words “because of sex” were open to multiple textual interpretations back in 1964, as they are now. Does the dissent win the debate on intentionalist grounds upon demonstrating that “there is not a shred of evidence that any Member of Congress interpreted the statutory text [the way the Court interpreted it] when Title VII was enacted”?100 I believe it does not. The fact that Congress did not envision the Bostock-type of discrimination back in 1964 surely does not establish that it affirmatively intended not to extend its antidiscrimination protection to employees whose intimate life, or lack thereof, does not fit their employer’s taste. Congress may well have intended to set up a broad prohibition that bans every type of employment decision implicating the employee’s maleness or femininity, both conventional and unconventional.101 Note that when a legislator enacts a standard by using a broad concept, it does not envision many, if not most, of the standard’s future applications ahead of time.102 Regulating conducts unforeseeable ahead of time is the whole point of setting up a standard, as opposed to a rule.103 For example, when a legislator lays down a “good faith” requirement for business relationships,104 it may not anticipate the scenario featuring a firm willing to forego minor deviations from its agreements with suppliers to all suppliers

96

Ibid. at 1773. See Katz, Gay American History: Lesbians and Gay Men in the U.S.A., pp. 276 – 283. 98 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). 99 Ibid. at 233 – 235. 100 Bostock, 140 S. Ct. at 1757. 101 For a persuasive argument that supports this observation, see Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, New York University Law Review 69 (1994), pp. 208 – 219. 102 See Kaplow, Rules Versus Standards: An Economic Analysis, Duke Law Journal 42 (1992), pp. 569 – 577. 103 Kaplow, Rules Versus Standards: An Economic Analysis, Duke Law Journal 42 (1992), p. 564. 104 See, e. g., Uniform Commercial Code § 1 – 303. 97

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but homosexuals, yet such a practice would most certainly constitute bad faith.105 When a legislator enacts a broad standard, it intends the standard to apply in many different circumstances, including circumstances altogether unknown at the time of the standard’s enactment. This is how standards work; and this is how they probably should work in the Bostock type of cases under the “because of sex” formula.106 The qualifier “probably” in my last sentence suggests that there is no certainty as to whether Congress intended to use the “because of sex” expression as a broad standard. Yet, the dissent’s claim that Congress intended to set up a bright-line rule is equally uncertain. To resolve this puzzle, the statute’s interpreters consequently need secondary rules that will tell them how to proceed in the face of uncertainty. Alas, intentionalism provides no such rules, and textualism, as we just saw, does not provide them either. Enter probabilism. Under this methodology, since Title VII’s expression “because of sex” includes a general concept – “sex” – its meaning should be determined by considering family resemblance as well. Specifically, one ought to find out whether this concept, as understood in the sixties, referred not strictly to the male-female biology, as suggested by some evidence, but also, more generally, to the intimate activities associated with maleness, as opposed to femininity, or vice versa. Answering this empirical question turns out not to be very difficult. First and most importantly, it ought to be acknowledged at the outset that the expression “because of sex” is open-textured and that its open texture – as Frederick Schauer put it, for all words and expressions, in his classic work Playing by the Rules – is an “indelible feature of language, a consequence of the confrontation between fixed language and a continuously changing and unknown world.”107 Empirical generalizations used at ascertaining open-textured words and expressions such as “sex” and “because of sex” are bound to be probabilistic and non-exclusive, rather than certain and exclusive.108 Based on this understanding, consider now the fundamental egalitarian premise of Title VII.109 By enacting this antidiscrimination statute, Congress clearly intended to outlaw gender-related stereotypes and prejudices that attached to women as opposed to men, as a reason for not hiring, not promoting or firing an employee.110 Important105 See Williams, Offer, Acceptance, and Improper Considerations: A Common-Law Model for the Prohibition of Racial Discrimination in the Contracting Process, George Washington Law Review 62 (1994), p. 186. 106 See Parchomovsky/Stein, Catalogs, Columbia Law Review 115 (2015), pp. 172 – 178. 107 Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based DecisionMaking in Law and in Life, p. 36. 108 Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based DecisionMaking in Law and in Life, pp. 35 – 37. 109 See Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989). 110 Ibid. at 244 – 245, 250 – 251.

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ly, the outlawed stereotypes and prejudices included not only those that were common back in 1964, but also those that were yet to develop. To secure this inclusion, Congress preferred the “because of sex” standard to a fully itemized list of specific prohibitions. Furthermore, at the time of the Civil Rights Act’s enactment homosexuality was already a widely known, albeit not socially accepted, sexual orientation.111 These factors establish the family-resemblance relationship between Title VII’s prohibition of employment discrimination and an adverse treatment of LGBT employees. This form of discrimination does not treat female and male employees differently from each other, but it penalizes women for being “unfeminine” and men for acting “unmanly” – a morally repugnant employment practice that resembles the core sex discrimination sufficiently enough. Hence, the drafters’ ban on discrimination “because of sex” was likely enough to encompass disparate treatment of LGBT employees. This argument establishes the case for adopting the Court’s interpretation of “because of sex” by a preponderance of the evidence.

IV. Conclusion Alongside their differences, textualism, intentionalism, purposivism, pragmatism, and fiatism share one common feature, identified as absolutism. Each of these schools of thought views legal interpretation as a special type of decision-making endeavor that only succeeds when it manages to ascertain the true meaning of an unclear statutory or constitutional provision. Under textualism, the requisite meaning must be extracted from the provision’s words and sentences, as understood at the time of its enactment. Under intentionalism, the requisite meaning is present in the drafters’ intent, while under purposivism it is embedded in the provision’s purpose. Under pragmatism and fiatism, ascertainment of the provision’s true meaning is doomed to fail because the requisite meaning does not exist (as under fiatism) or is beyond the courts’ reach, except when the provision’s words are straightforward and require no interpretation (as under pragmatism). The probabilistic approach to legal interpretation, advocated in this Article, separates itself from these schools of thought in two ways. First, it denies the schools’ absolutist assumption and the consequent “true or false” approach to the meaning of the law. Under probabilism, the meanings of statutory and constitutional provisions admit of different degrees of probability and thus can be more and less likely to be true. Second, probabilism repudiates other schools’ underlying assumption that legal interpretation is a special type of decision-making. Under probabilism, legal interpretation is not special in any sense. Rather, it is just another factfinding endeavor – one that courts should carry out in the same way in which they determine disputed facts under conditions of uncertainty. Correspondingly, when the meaning of the underlying statutory or constitutional provision is uncertain, courts ought to abandon 111

See Katz, Gay American History: Lesbians and Gay Men in the U.S.A., pp. 276 – 283.

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the absolutist quest for certainty. Instead of trying to find out the provision’s true meaning, courts will do well to identify the meaning that is most likely to be true as a matter of fact. Bibliography Alexander, Lawrence: Connecting the Rule of Recognition and Intentionalist Interpretation: An Essay in Honor of Richard Kay, Connecticut Law Review Vol. 52, 2021, pp. 1513 – 1528. Allen, Ronald J./Schwartz, David S./Pardo, Michael S./Stein, Alex: An Analytical Approach to Evidence: Text, Problems and Cases, 7th edition, Boston 2022. Allen, Ronald J./Stein Alex: Evidence, Probability and the Burden of Proof, Arizona Law Review Vol. 55, 2013, pp. 557 – 602. Ayer, Alfred Jules: Language, Truth and Logic, London 1936. Baker, Scott/Krawiec, Kimberly D.: The Penalty Default Canon, George Washington Law Review Vol. 72, 2004, pp. 663 – 723. Baude, William/Sachs, Stephen E.: The Law of Interpretation, Harvard Law Review Vol. 130, 2017, pp. 1079 – 1147. Benjamin, Stuart Minor/Renberg, Kristen M.: The Paradoxical Impact of Scalia’s Campaign Against Legislative History, Cornell Law Review Vol. 105, 2020, pp. 1023 – 1091. Bork, Robert H.: The Constitution, Original Intent, and Economic Rights, San Diego Law Review Vol. 23, 1986, pp. 823 – 832. Bowne, Borden Parker: The Passing of Educational Fiatism, Pacific Philosophical Quarterly Vol. 4, 1923, p. 77 et seq. Bray, Samuel L.: The Mischief Rule, Georgetown Law Journal Vol. 109, 2021, pp. 967 – 1013. Buchanan, Neil H./Dorf, Michael C.: A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism, Cornell Law Review Vol. 106, 2021, pp. 591 – 676. Cardozo, Benjamin N.: The Nature of the Judicial Process, Whitefish 1921. Emens, Elizabeth F.: Compulsory Sexuality, Stanford Law Review Vol. 66, 2014, pp. 303 – 386. Eskridge, William N., Jr./Frickey, Philip P.: Statutory Interpretation as Practical Reasoning, Stanford Law Review Vol. 42, 1990, pp. 321 – 384. Fallon Jr., Richard H.: The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, University of Chicago Law Review Vol. 82, 2015, pp. 1235 – 1308. Fuller, Lon L.: Reason and Fiat in Case Law, Harvard Law Review Vol. 59, 1946, pp. 376 – 395. Hart, H. L. A.: The Concept of Law, Oxford 1961. Hart Jr., Henry M./Sacks, Albert M.: The Legal Process, Goleta 1994. Hutchinson, Allan C./Monahan, Patrick J.: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, Stanford Law Review Vol. 36, 1984, pp. 199 – 245.

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Kaplow, Louis: Rules Versus Standards: An Economic Analysis, Duke Law Journal Vol. 42, 1992, pp. 557 – 629. Katz, Jonathan: Gay American History: Lesbians and Gay Men in the U.S.A., 1978, New York. Kennedy, Duncan: Form and Substance in Private Law Adjudication, Harvard Law Review Vol. 89, 1976, pp. 1685 – 1778. Koppelman, Andrew: Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, New York University Law Review Vol. 69, 1994, pp. 197 – 287. Krishnakumar, Anita S.: Backdoor Purposivism, Duke Law Journal Vol. 69, 2020, pp. 1275 – 1352. Manning, John F.: Textualism as a Nondelegation Doctrine, Columbia Law Review Vol. 97, 1997, pp. 673 – 739. Manning, John F.: What Divides Textualists from Purposivists?, Columbia Law Review Vol. 106, 2006, pp. 70 – 111. Manning, John/Stephenson, Matthew: Legislation and Regulation, Cases and Materials, 3rd edition, Goleta 2017. Marmor, Andrei/Soames, Scott (eds.): Philosophical Foundations of Language in the Law, Oxford 2011. McGinnis, John O./Rappaport, Michael B.: Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, Northwestern University Law Review Vol. 103, 2009, pp. 751 – 802. McGinnis, John O./Rappaport, Michael B.: The Power of Interpretation: Minimizing the Construction Zone, Notre Dame Law Review Vol. 96, 2021, pp. 919 – 972. McGinnis, John O./Rappaport, Michael: Unifying Original Intent and Original Public Meaning, Northwestern University Law Review Vol. 113, 2019, pp. 1371 – 1418. Merrill, Thomas W.: Legitimate Interpretation – Or Legitimate Adjudication?, Cornell Law Review Vol. 105, 2020, pp. 1395 – 1464. Nance, Dale A.: The Best Evidence Principle, Iowa Law Review Vol. 73, 1988, pp. 227 – 297. Nelson, Caleb: What Is Textualism?, Virginia Law Review Vol. 91, 2005, pp. 347 – 418. Nourse, Victoria: Textualism 3.0: Statutory Interpretation After Justice Scalia, Alabama Law Review Vol. 70, 2019, pp. 667 – 685. Parchomovsky, Gideon/Stein, Alex: Catalogs, Columbia Law Review Vol. 115, 2015, pp. 165 – 210. Peller, Gary: The Metaphysics of American Law, California Law Review Vol. 73, 1985, pp. 1151 – 1290. Posner, Richard A.: What Has Pragmatism to Offer Law?, Southern California Law Review Vol. 63, 1990, pp. 1653 – 1670. Samaha, Adam M.: On Law’s Tiebreakers, University of Chicago Law Review Vol. 77, 2010, pp. 1661 – 1737. Scalia, Antonin: A Matter of Interpretation: Federal Courts and the Law, Princeton/New Jersey 1997.

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Schauer, Frederick: Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life, Oxford 1991. Schlegel, John Henry: Critical Legal Studies: An Afterword, Stanford Law Review Vol. 36, 1984, pp. 673 – 674. Solum, Lawrence B.: The Fixation Thesis: The Role of Historical Fact in Original Meaning, Notre Dame Law Review Vol. 91, 2015, pp. 1 – 78. Stein, Alex: Foundations of Evidence Law, 1st edition, Oxford 2005. Stein, Alex: Inefficient Evidence, Alabama Law Review Vol. 66, 2015, pp. 423 – 470. Stein, Alex: Probabilism in Legal Interpretation, Iowa Law Review Vol. 107, 2022, pp. 1389 – 1437. Stein, Alex: Second-Personal Evidence, in: Dahlman, Christian/Stein, Alex/Tuzet, Giovanni (eds.), Philosophical Foundations of Evidence Law, Oxford 2021, p. 96 et seq. Stein, Alex: The Flawed Probabilistic Foundation of Law & Economics, Northwestern University School of Law Vol. 105, 2011, pp. 199 – 260. Tobia, Kevin/Mikhail John M.: Two Types of Empirical Textualism, Brooklyn Law Review Vol. 86, 2021, pp. 461 – 487. Wechsler, Herbert: Toward Neutral Principles of Constitutional Law, Harvard Law Review, Vol. 73, 1959, pp. 1 – 35. Whittington, Keith E.: Originalism: A Critical Introduction, Fordham Law Review Vol. 82, 2013, pp. 375 – 409. Williams, Neil G.: Offer, Acceptance, and Improper Considerations: A Common-Law Model for the Prohibition of Racial Discrimination in the Contracting Process, George Washington Law Review Vol. 62, 1994, pp. 183 – 229. Winter, Steven L.: The “Power” Thing, Virginia Law Review Vol. 82, 1996, pp. 721 – 835. Wittgenstein, Ludwig: Philosophical Investigations, G.E.M. Anscombe trans., Basil Blackwell 3rd edition, Oxford 1967. Wurman, Ilan: A Debt Against the Living: An Introduction to Originalism, Cambridge 2017. Zeppos, Nicholas S.: Legislative History and the Interpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, Virginia Law Review Vol. 76, 1990, pp. 1295 – 1374.

Restoring Stolen Dignity Reappraisal of the National Socialist Unlawful Revocation of Doctoral Degrees at the University of Würzburg By Christoph Weber and Caroline S. Rapatz*

I. Depromotions as an Instrument of the Nazi Regime Depromotion is the German word for the revocation or the withdrawal of academic doctoral degrees. In cases of plagiarism or serious criminal offences, it is an instrument available to universities to protect their scientific standards and reputations. At the same time, it is a profound encroachment on the professional and personal integrity of the persons concerned – accordingly, the hurdles for the revocation of a doctorate have always been high. The Nazi regime, however, deliberately perverted the revocation of doctoral degrees, turning it into an instrument for the degradation and persecution of system-critical persons and Jewish academics. The massive expansion of the criteria for the deprivation of doctoral degrees and the application of those rules in state-directed and -controlled proceedings led to a situation where, within a short period of time, the universities’ practice of revocation of doctoral degrees in individual cases, which was guided by academic considerations, was turned into a machinery for the discriminatory deprivation of titles. The deprivation of doctoral degrees proved to be part of a comprehensive program of discrimination and disenfranchisement of dissidents and Jews, leading up to and including the systematic persecution and murder of millions of persons. The University of Würzburg was also guilty through its cooperation in these purely politically and ideologically motivated depromotions. Although not exclusively so, the vast majority of victims were Jewish academics, including some prominent Jewish citizens of Würzburg. For a long time, this dark chapter in the university’s * Prof. Dr. Dr. h.c. Christoph Weber holds the Chair of Civil Law and Labour Law at the University of Würzburg; Prof. Dr. Caroline Sophie Rapatz (née Rupp) was most recently a junior professor there and has held a professorship in Civil Law, European and International Private and Procedural Law, Comparative Law at the University of Kiel since 1. 10. 2022. A German version of this contribution has been published in the anthology of the lecture series Judentum – 1700 Jahre jüdisches Leben in Deutschland, edited by Brigitte Burrichter et al., Würzburg (forthcoming). The authors wish to thank Roger Fabry for the translation of their text into English.

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history went unnoticed. It was not until 2008 that a project was initiated to investigate what had happened in Würzburg, and in 2011 the official rehabilitation of the victims of depromotion was carried out by the University. The process and results of the reappraisal project have been comprehensively documented in the book Die geraubte Würde1 (“The Dignity Stolen”), which was published as volume 1 of Beiträge zur Würzburger Universitätsgeschichte. Based on that book, the following account is an overview of the project and its most important findings on the deprivation of doctoral degrees by the University of Würzburg during the National Socialist era.2

II. The Würzburg Reappraisal Project 1. The Genesis and Course of the Project The project to reappraise the revocations of doctoral degrees at the University of Würzburg during the National Socialist era goes back to a request made in November 2008 by Karl Kreuzer, Chair Emeritus of German and European Private Law and Private International Law. He had heard that a year earlier in Leipzig the deprivation of doctoral degrees of Jewish and other academics at the law faculty during the National Socialist era had been investigated and reappraised.3 He asked Christoph Weber, the newly elected Dean at the time, if there was any information about comparable events in Würzburg. It quickly became apparent that neither the Faculty of Law nor committees at university level had made any attempt to come to terms with the problem in the more than 60 years since the end of the war. Initial research was sobering: documents on depromotions during the Nazi era could no longer be found in Würzburg. Like most of the University’s files, they were probably lost during the air raid of 16 March 1945 at the latest. However, a review of publications from other German universities that had already initiated a reappraisal process, as well as a Festschriftbeitrag by Sabine Happ, the university archivist in Freiburg at the time, showed that there was nevertheless information available on Würzburg: at the time, German universities had informed each other in newsletters of the results of their depromotion proceedings.4 1 Universität Würzburg (ed.), Die geraubte Würde. Die Aberkennung des Doktorgrads an der Universität Würzburg 1933 – 1945. 2 In particular, the descriptions of both the depromotion practices (III.) as well as the occurrences in Würzburg (IV.) are a condensation of the contribution by Rupp, in: Universität Würzburg (ed.), Die geraubte Würde, pp. 44 – 122; reference is made to it for further details as well as for its extensive references. 3 Henne (ed.), Die Aberkennung von Doktorgraden an der Juristenfakultät der Universität Leipzig 1933 – 1945. 4 Happ, in: Happ/Nonn (eds.), Vielfalt der Geschichte – Lernen, Lehren und Erforschung vergangener Zeiten. Festgabe für Ingrid Heidrich zum 65. Geburtstag, p. 288.

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After Sabine Happ had thankfully sent the Faculty of Law an initial list of names, a team assembled at the Dean’s Office set to work and try to collect and compile as much information as possible about the events of the NS era, initially for the Faculty of Law. Caroline Rupp took the lead. She had previously completed a Master’s degree in English Philology, was studying law, and worked at the time as a scientific assistant at the Dean’s Office. The students received professional guidance from the university archivist Marcus Holtz. In the second phase, the aim was to involve the university as a whole in the project. An interfaculty working group was formed in which, in addition to the Dean of the Faculty of Law, the university archivist Marcus Holtz, and Caroline Rupp, as head of the student research team,5 the former Vice President of the University of Würzburg and Dean of the Faculty of Philosophy II Wolfgang Schneider, the medical historian Michael Stolberg, and the Dean of the Faculty of Economics Martin Kukuk participated. The reappraisal of the depromotions based on criminal convictions had the support of the Würzburg criminal law expert and criminologist Klaus Laubenthal. Student assistants from all participating faculties were then entrusted with the research. The academic reappraisal was supplemented and enhanced by research conducted by Marcus Holtz (the overall framework), Caroline Rupp (legal aspects of the depromotions at the University of Würzburg), Leila Al-Deri and Michael Stolberg (deprivations of doctoral degrees at the Würzburg Medical Faculty). All the contributions were brought together in the book Die geraubte Würde. The final phase of the project consisted of a political reappraisal at university level. Following preliminary work by the interfaculty working group, the project culminated in a resolution by the extended university management, the senate and the university council of the University of Würzburg stating that the withdrawal of doctoral degrees carried out at the University of Würzburg in the years 1933 – 1945 based on National Socialist ideology was in blatant contradiction to the principles of the constitutional state, to academic freedom and to the humanistic-academic spirit of the university. The depromotions were declared to be void. This act of rehabilitation is not only documented in the book Die geraubte Würde, but was also made public in a solemn academic commemoration ceremony in the Neubaukirche of the Alte Universität on 30 May 2011. The text of the rehabilitation resolution is also printed at the end of this contribution – together with the names of the Würzburg PhDs whose degrees were revoked – in order to keep alive the memory of the injustice inflicted upon them by the university, but above all to remember their academic contributions as members of the Würzburg scientific community.

5 Julia Döllein, Daniel Gemeinhardt, Angelina Mangold, Melissa Okanovic, Manuel Pietzko, Christina Rott, Annika Schneider, Eva Singer, Sarah Stoll, Jana Wagner und Katharina Wülk.

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2. Methodology The reappraisal of the events in Würzburg initially faced a methodological challenge: both the documents of the Rectorate on the depromotion proceedings and the faculty records up to 1945 were almost completely lost during the war-related destruction of the city and the university. Original directories or protocols were just as non-existent as internal and outside correspondence on the depromotions, doctoral regulations and doctoral record books. During the research work, however, it turned out that fortunately at least the student card index from the relevant period had been partly preserved and copies of most of the dissertations were still available in the university library. The result was that only external records could be used to reconstruct the Würzburg depromotion proceedings. The evaluation of the sources preserved in the Freiburg University Archive provided by Sabine Happ were correlated with the data from the Leipzig University Archive (Jens Blecher) and the Hannover University Archive (Christian-Alexander Wäldner). In addition, there was an independent analysis of the extensively preserved primary sources in the Marburg University Archives, the holdings of the Hauptstaatsarchiv Munich (HStA) and the Bundesarchiv Berlin as well as other German university and state archives. Finally, the names of all persons who received their doctorates in Würzburg between 1885 and 1935 were determined on the basis of the annual directories6 of German university publications and compared with the expatriation lists7 published in the Reichsanzeiger (Reich Gazette). The comparative composition of those fragments allowed a multi-layered view of the Würzburg proceedings and, in particular, a detailed examination of the (administrative) legal background to the Nazi depromotions. Data sheets were then prepared for each of the PhD graduates affected by the depromotions identified in this way, in which the biographical information resulting from the available sources was compiled and supplemented by further research. Even though most of the CVs remained fragmentary, they show an impressive picture of the diversity of the Würzburg doctoral community and demonstrate how deeply and cruelly the academic and non-academic injustice by the Nazis cut into the lives of those dedicated citizens.

6 These were published from 1885 onwards under varying titles: Jahresverzeichnis der an den deutschen Universitäten erschienenen Schriften (1885 – 1912); Jahresverzeichnis der an den deutschen Universitäten und Technischen Hochschulen erschienenen Schriften (1913 – 1925) and Jahres-Verzeichnis der an den deutschen Universitäten und Hochschulen erschienenen Schriften (1924 – 1935). 7 Hepp (ed.), Die Ausbürgerung deutscher Staatsangehöriger 1933 – 45 nach den im Reichsanzeiger veröffentlichten Listen.

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III. Depromotion Practices under the Nazi Regime 1. The (Administrative) Law Foundations for the Deprivation of Doctoral Degrees The Nazi regime used existing (university) legal provisions for revoking doctoral degrees and thus seemingly merely continued an already established practice. However, the massive expansion of the practical application of the existing grounds for depromotion in the years from 1933 to 1945, and above all the introduction of the new provision on the revocation of degrees due to punitive expatriation, meant a perversion of higher education law and its underlying principles of academic integrity. Even if it was not explicitly and exclusively directed against Jewish academics, the vast majority of the victims were Jews. As far as can be seen, the use of the previously existing power to revoke doctoral degrees to deal with plagiarised dissertations did not increase under the Nazi regime as the narrowly defined and objectively verifiable requirements for academic misconduct as the basis for the revocation of a degree hardly allowed for the arbitrary revocation of PhDs. On the other hand, it can be observed that the Nazi regime increasingly used criminal convictions as the legal basis for depromotions (revocation of degrees in the case of “valid conviction for a dishonourable act”,8 in particular as a consequence of the additional penalty of loss of civil rights in accordance with § 33 RStGB9). Although the universities had a certain amount of discretion10 in the assessment of individual cases, it was increasingly restricted, especially as the universities tended to be strict in their “rush to obey”.11 Although those affected could try to appeal against the revocation of their doctoral degrees or get them back by “petition for clemency”, such attempts were mostly unsuccessful. Under the National Socialist regime of injustice, the deprivation of doctoral degrees from 1933 onwards thus had the status of a comprehensive “additional penalty” accompanying criminal convictions, regardless of any connection between the doctoral degree acquired through academic achievement and the misconduct disapproved of under criminal law. Especially as a consequence 8 Cf. § 16 of the doctorate regulation of the medical faculty of 1935 as well as § 10 doctorate regulation of the philosophical faculty of 1935. 9 Reichsstrafgesetzbuch (Reich criminal code) of 1871 (RGBl. 1871, p. 127). § 33 RStGB entered into force on 1. 1. 1872 and stayed in force unchanged until it was repealed on 1. 4. 1970. Cf. Fuchs (ed.), Strafgesetzbuch für das Deutsche Reich vom 15. 5. 1871. Historischsynoptische Edition 1871 – 2009, available at: lexetius.com (last visit: 23. 3. 2023). 10 Cf. Harrecker, Degradierte Doktoren: Die Aberkennung der Doktorwürde an der Ludwig-Maximilians-Universität München während der Zeit des Nationalsozialismus, p. 106. 11 Cf. also Szöllösi-Janze/Freiträger, “Doktorgrad entzogen”. Aberkennung akademischer Titel an der Universität Köln 1933 bis 1945, p. 27 et seq.; Thieler, “[…] des Tragens eines deutschen akademischen Grades unwürdig” – die Entziehung von Doktortiteln an der GeorgAugust-Universität Göttingen im “Dritten Reich”, p. 45; Wollgast, Zur Geschichte des Promotionswesens in Deutschland, p. 223.

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of criminal sentences motivated by the Nazi regime’s perverted doctrines or in cases of purely politically motivated convictions, the grounds for a depromotion were turned into a targeted instrument for degrading “unpopular” academics. By far the greatest significance, however, was gained by the depromotion ground of (punitive) expatriation, which was newly introduced by the Nazi regime. It was based on the principle of combining the deprivation of German citizenship with the revocation of doctoral degrees awarded by German universities. This was initially motivated by the desire to deprive prominent opponents of the regime living abroad of the “prestige” of their doctorates, especially in cases of public statements regarding resistance to the Nazi regime.12 Beyond that, however, all persons who had been forcibly expatriated – often Jewish – were to be systematically and symbolically excluded from the German academic community by having their academic degrees taken away and this outward manifestation of academic dignity and professional qualifications removed.13 From 14 July 1933, § 2 Law on the Revocation of Naturalisation and the Deprivation of German Citizenship (Gesetz über den Widerruf von Einbürgerungen und die Aberkennung der deutschen Staatsangehörigkeit) made forced and punitive expatriation possible:14 “Members of the Reich who are abroad may be declared to have lost their German citizenship if they have harmed German interests by conduct that violates the duty of loyalty to the Reich and the people.”

In addition to statelessness and thus the loss of state diplomatic protection for those affected, the publicised deprivation of citizenship enabled the Nazi regime to symbolically distance itself from personae non gratae – and at the same time allowed it to confiscate their assets. From 25 August 1933 onwards, the Reichsanzeiger regularly contained lists with the names of persons expatriated as punishment. Punitive expatriation was at first mainly directed against prominent opponents of the regime who had already fled abroad (e. g. Dr. Heinrich Mann, Dr. Alfred Kerr), but soon thereafter their families were also listed.15 Over time, the broad wording of the law allowed for an increasingly expansive reading, especially in the case of German Jews16 who had fled abroad. However, punitive expatriation remained an exception 12

Cf. for example the propaganda article, “Stürmer” No. 52, 12.1937. Cf. Blecher, in: Döring (ed.), Universitätsgeschichte als Landesgeschichte. Die Universität Leipzig in ihren territorialgeschichtlichen Bezügen, p. 163; Szöllösi-Janze/Freiträger, “Doktorgrad entzogen”. Aberkennung akademischer Titel an der Universität Köln 1933 bis 1945, p. 32 et seq. 14 RGBl. 1933 I, No. 81, p. 480. 15 For the interpretation and understanding of § 2 Act of 14. 7.1933, cf. for example Harrecker, Degradierte Doktoren: Die Aberkennung der Doktorwürde an der Ludwig-Maximilians-Universität München während der Zeit des Nationalsozialismus, p. 33 et seq. and HStA Munich MK 70708. 16 Lehmann, in: Hepp (ed.), Die Ausbürgerung deutscher Staatsangehöriger 1933 – 45 nach den im Reichsanzeiger veröffentlichten Listen, Vol. 1 pp. XIII–XIV. 13

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to the traditional rule, according to which not emigration, but only the acceptance of another nationality led to the loss of German citizenship.17 Almost immediately after the start of the punitive expatriations – beginning in Bavaria – the idea emerged of depriving those who had been expatriated holding a doctorate of their doctoral degrees as well. On the one hand, this was intended to intensify the degradation of and deterrent effect on critics of the regime; on the other hand, the Nazi-led Ministries of Culture considered persons subject to expatriation “not worthy […] of holding a doctorate from a German university”.18 Purely political considerations rather than academic ones were behind this. In 1935, when cultural sovereignty was transferred from the states to the newly founded “Reich and Prussian Ministry of Science, Education and National Formation”, the law that existed in Prussia, which obliged universities to revoke the doctoral titles of persons who had been expatriated, was extended to cover the entire territory of Germany.19 The implementation of the ministerial requirements was slow in many places, but very rapid in Würzburg: as early as November 1935, the Faculty of Philosophy and the Faculty of Law and Political Science reported the inclusion of corresponding amendments into their doctoral regulations.20 In the years that followed, emphatic requests from the Reich Minister of Science, and binding decrees that regulated in detail the uniform depromotion procedure,21 triggered a flood of degree revocations at German universities on the basis of punitive expatriations. The Law on the Use of Academic Degrees of 7 June 1939 definitively consolidated the previous rules into a single statute for the revocation of academic titles. No changes in content were introduced compared with the existing rules in the already harmonised doctoral regulations.22 § 4 (1) of the law provided for the grounds for depromotion to include, in addition to the academic grounds of plagiarism or the lack of essential requirements for the award of the title (lit. a), the extensive ground of “unworthiness” already existing at the time of the award of the doctorate (lit. b) or occurring as a result of later conduct on the part of the degree holder (lit. c). Punitive expatriations (as well as criminal convictions) were classified as cases of “unworthiness due to later conduct”, so that depromotion could or even had to take place under § 4 para 1 lit c. No possibility of appeal or “right to petition for clemency” was granted in the case of punitive expatriation. However, there were no solely “racially” justified depromotions or depromotions based solely on the “Jewish descent” of academics. Corresponding proposals – for 17 Cf. §§ 17 Nr. 2, 25 Reichs- und Staatsangehörigkeitsgesetz of 22. 7.1913, RGBl. 1913, p. 583. 18 Decree BayMinKultus M. E. No. V 55485 of 3. 10. 1933. 19 Decree RMinWiss W I a 603/55, M 1 of 13. 4. 1935. 20 Both notifications can be found in HStA München MK 70708. The exact date of the amendment to the doctoral regulations of the Faculty of Medicine is not known. 21 Decree RMinWiss W I a 1910/36 of 16. 12. 1936. 22 Letter of RMinWiss of 8. 6. 1937.

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example by the “Reich Protector in Bohemia and Moravia”23 – and ministerial considerations regarding a separate depromotion statute for “Jewish descent” were not implemented up to 1945. Instead, the Reich Ministry of Science emphasized that according to the applicable regulations the basis for degree revocation could only be “conduct” on the part of the person concerned.24 Therefore, only punitive expatriation under § 2 of the law of 14 July 1933,25 but not any other loss of German citizenship, could lead to degree revocation. Against this background, it cannot be conclusively determined whether the blanket loss of German citizenship of all Jews who had their habitual residence abroad or moved abroad, as decreed by the 11th Ordinance to the Reich Citizenship Law of 15 September 1935 on 25 November 1941,26 also led to the deprivation of the doctoral degrees. On the one hand, this “umbrella”-ordinance was aimed in principle at depriving all emigrated Jewish persons of their German citizenship, and on the other hand, it was intended to enable seizure of their domestic assets, which were in principle declared forfeited to the Reich. Primarily, however, according to the perverted “logic” of the Nazi regime, it served as the formal legal groundwork for the mass murder of the Jewish deportation victims: By crossing the Reich’s borders, they lost their German citizenship on the way to the extermination camps, so that the Nazi regime carried out the subsequent murders not on its own citizens, but on defenceless stateless persons.27 Whether this automated and blanket expatriation also entailed depromotion cannot be determined with certainty, as clear sources on this question are not known.28 However, available archival materials support the assumption that a doctoral degree revocation was only to be carried out as a consequence of the individual punitive expatriation under § 2 of the law of 14 July 1933 – the laws, decrees and ordinances on depromotion only refer to this;29 there are no indications that the “umbrella”-ordinance was also included. According to the current state of knowledge, it therefore seems likely that expatriation on the basis of the “umbrella”-ordinance was not combined with an additional, symbolic academic disenfranchisement through depromotion – which, of course, can hardly be significant in view of the unimaginable suffering of the victims of the deportations and their systematic extermination. 23

Letter of 11. 7. 1942. Cf. for example the circular of RMinWiss W I a 190 of 6. 2. 1936; Letter of RMinWiss to RMinInnen of 12. 11. 1938; Letter RMinInnen to RMinWiss of 11. 1. 1939; Letter of 1944. 25 Decree RMinWiss W I a 1910/36 of 16. 12. 1936. 26 RGBl 1941 I, p. 722. 27 Hepp (ed.), Die Ausbürgerung deutscher Staatsangehöriger 1933 – 45 nach den im Reichsanzeiger veröffentlichten Listen, p. XXXV et seq. 28 Cf. Thieler, “[…] des Tragens eines deutschen akademischen Grades unwürdig” – die Entziehung von Doktortiteln an der Georg-August-Universität Göttingen im “Dritten Reich”, p. 19. 29 Cf. also Lemberg, “… eines deutschen akademischen Grades unwürdig”: Die Entziehung des Doktortitels an der Philipps-Universität Marburg 1933 – 1945, p. 16. 24

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2. Conduct of the Depromotion Proceedings In practice, the revocation of degrees was carried out by means of a complex procedure30 that was meticulously regulated by numerous ministerial guidelines. Those procedures were increasingly streamlined by the Act on the Administration of Academic Degrees and two Implementing Ordinances. The decision on depromotion, which was originally the responsibility of the university faculties, was transferred to a Rector-Deans’ Committee at an early stage, in accordance with the Führerprinzip, which was also established at the universities. The doctoral degrees that were revoked were initially recorded in the doctoral files.31 After a degree was revoked, the universities had to inform the Reich Ministry of Science; in addition, the practice of informing all other universities of the degree revocation by circular letter became established.32 Finally, the universities had to publish the depromotions in the Reichsanzeiger.33 It is remarkable that the dissertations of the depromoted academics were not removed from the university libraries or included in the “list of harmful and undesirable literature”.34 At least formally, the universities had to decide on each case individually. The universities only had discretionary powers in cases of plagiarism and criminal convictions; the withdrawal of German citizenship, on the other hand, generally led to revocation of the doctoral degree. The persons concerned were not heard before the decision was made.35 Subsequent notification of the decision to the persons concerned was in principle provided for, but only in cases of disqualification due to plagiarism or a criminal conviction, for which the depromoted persons had the right of appeal. In the case of depromotions due to punitive expatriation, notification of the persons concerned was mostly not made – in the case of persons concerned living abroad, notification was considered unnecessary, especially since it was difficult 30 Cf. for example Decree RMinWiss W F No. 834 of 15. 4. 1937 which contains detailed guidelines for the publication of depromotions in the Reichsanzeiger. 31 Harrecker, Degradierte Doktoren: Die Aberkennung der Doktorwürde an der LudwigMaximilians-Universität München während der Zeit des Nationalsozialismus, p. 45. 32 While individual notices were always sent in the case of academic title withdrawal due to a criminal conviction, the practice of “collective circular letters” at longer intervals quickly established itself for depromotions due to punitive expatriation, cf. collective circular letters of 12. 6. 1939 and of 27. 3. 1940. 33 Decree RMinWiss W I a 1910/36 of 16. 12. 1936. – Those affected were thus listed twice in the Reichsanzeiger: once for punitive expatriation and once for depromotion, although the order could vary. However, the depromotions listed in the Reichsanzeiger are not complete, cf. Breitbach, Das Amt des Universitätsrichters an der Universität Gießen im 19. und 20. Jahrhundert. Zugleich ein Beitrag zu den Doktorentziehungsverfahren zwischen 1933 und 1945, p. 326. 34 Cf. also Henne, in: Henne (ed.), Die Aberkennung von Doktorgraden an der Juristenfakultät der Universität Leipzig 1933 – 1945, p. 26; Harrecker, Degradierte Doktoren: Die Aberkennung der Doktorwürde an der Ludwig-Maximilians-Universität München während der Zeit des Nationalsozialismus, p. 104. 35 Decree RMinWiss W I a 1910/36 of 16. 12. 1936.

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in practical terms. Recovery of the doctoral certificates was also dispensed with.36 However, the fact that the vast majority of those affected never became aware of the academic degradation inflicted on them and continued to use their doctoral degrees in exile did not change the disparagement and academic degradation intended by the depromotion practice. From the point of view of its organisers, the revocations of doctoral degrees due to expatriation met with procedural obstacles. Neither ministerial notifications of planned and completed expatriations37 nor the obligation of universities to check the expatriation lists38 published in the Reichsanzeiger had the effect desired by the regime of speedy and comprehensive degree revocations; rather, there were repeated delays and confusion about names and persons. Furthermore, in order to reduce the administrative burden on the universities, the proposal made early on by the Rector of the University of Würzburg, the committed National Socialist Seifert, of automating the depromotions on the basis of punitive expatriation,39 was finally implemented in 1943 against the backdrop of increasing war-related restrictions on administrative procedures. With the 2nd Implementing Decree to the Law of 7 June 1939 dated 29 March 1943,40 the depromotion decision of the universities – the result of which was already predetermined anyway – became superfluous; rather, the deprivation of doctoral degrees came into effect automatically with the entry into force of the punitive expatriation. On the part of the universities, the depromotion was only to be noted internally and recorded in the doctoral files.41 At the same time, this new procedure had the effect that the degree revocation (possibly retroactively) affected without exception all PhDs who had been expatriated.

IV. Würzburg Depromotions 1933 – 1945 A reconstruction of the Würzburg depromotion proceedings was only possible – due to the lack of intact documentation from the university or the faculties – on the basis of the records of other universities and the ministerial files that still exist. In particular, the circular letters on degree revocations from the University of Würzburg that have survived in other places made it possible to shed light on the events and to largely determine the names of the Würzburg doctoral graduates who had been depromoted. In this context, it cannot be ruled out that beyond the cases that became 36

Decree RMinWiss W I a 1910/36 of 16. 12. 1936. Cf. Decree RMinWiss W I a 1910/36 of 16. 12. 1936. 38 Circular letter RMinWiss W f 3486/36 of 2. 3. 1937. 39 Letter from the Rector of the University of Würzburg to the RMinWiss of 14. 11. 1938. 40 RGBl. 1943 I, p. 168. 41 Cf. also Moritz, in: Kohnle/Engehausen (eds.): Zwischen Wissenschaft und Politik. Studien zur deutschen Universitätsgeschichte, p. 545. – A decree of the Reich Ministry of Science of 19. 5. 1943 also dropped internal declaratory resolutions of the universities, Decree RMinWiss W A 953 of 19. 5. 1943. 37

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known in the course of the project there were further unlawful doctoral revocations at the University of Würzburg, which are not (yet) recorded and known by name today. In Würzburg, only one depromotion case due to a plagiarised dissertation is known from the Nazi period.42 A political motivation for the revocation of the academic degree cannot be discerned there – rather, the doctoral title was by clemency left in place after a lengthy appeals procedure, partly due to the politically loyal attitude to the regime of the person concerned. According to the current state of knowledge, a total of 77 depromotions took place in Würzburg in the period 1933 to 1945 on the basis of valid criminal convictions. In 30 of those cases, the loss of the doctoral degree was determined to be an automatic consequence of a deprivation of civil rights under § 33 of the RStGB; in the remaining 47 cases, the Rector-Dean Committee of the University of Würzburg made an independent decision to revoke the degree. This affected 28 academics in the Faculty of Medicine, 41 in the Faculty of Law and Political Science and 8 in the Faculty of Philosophy. They were based on widely varied criminal convictions.43 The depromotions on the basis of clearly politically or ideologically motivated criminal offences during the Nazi era (e. g. violation of the “Blood Protection Act”44 or the “Treachery Act”45) are a clear expression of National Socialist injustice, as well as those on the basis of war-related criminal offences (e. g. “listening to enemy radio stations”) and the case of a demonstrably unlawful conviction on ideological grounds. In contrast, the investigation of depromotions due to criminal convictions for other offences (e. g. murder, forgery of documents, fraud) presented considerable difficulties. In many cases, the existing files did not allow a conclusive assessment of the injustice of the convictions for (factually) committed offences; it was not possible to say with certainty to what extent the sentences on which the subsequent deprivation of degree was based were an expression of Nazi injustice and therefore violations of the principles of the rule of law. The necessary individual investigation of each case has so far failed due to the particularly incomplete source material in this area. It can be assumed, however, that in many of those cases the criminal conviction and the resulting revocation of the doctoral degree were an expression of politically and ideologically motivated injustice.46 42

Documented in: Bundesarchiv R 4901/13573, p. 99 et seq. Cf. also Happ, in: Happ/Nonn (eds.), Vielfalt der Geschichte – Lernen, Lehren und Erforschung vergangener Zeiten. Festgabe für Ingrid Heidrich zum 65. Geburtstag, p. 290 et seq. 44 Gesetz zum Schutze des deutschen Blutes und der deutschen Ehre vom 15. 9. 1935, RGBl. 1935 I, p. 1146. 45 Verstoß gegen das Gesetz gegen heimtückische Angriffe auf Staat und Partei und zum Schutz der Parteiuniform vom 20. 12. 1934, RGBl. 1934 I, p. 1269. 46 When rehabilitating individual victims by name, their interest in rehabilitation must be taken into account, on the one hand, but also their personality rights – including post-mortem rights – on the other. The working group at the University of Würzburg has developed guidelines for rehabilitation in criminal conviction cases, cf. Universität Würzburg (ed.), Die ge43

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By far the largest proportion of Würzburg’s depromotions during the Nazi era are the doctoral revocations due to punitive expatriation. The first of the documented cases dates from 1937, and the last from 1941. In total, the University of Würzburg revoked the doctorates of 145 persons explicitly due to a previous punitive expatriation: Of those persons, 61 were from the Faculty of Medicine, 75 from the Faculty of Law and Political Science and 9 from the Faculty of Philosophy.47 In addition, there are those Würzburg doctoral graduates who lost their degrees after their punitive expatriation through the automated procedure under the 2nd Implementing Decree of 29 March 1943. In the absence of documented university decisions that have survived, those affected persons could only be identified indirectly: The names of all those awarded doctorates in Würzburg listed in the annual directories of German university publications were checked against the punitive expatriation lists published in the Reichsanzeiger. This revealed that in addition to the 145 persons formally depromoted by the university, there were a further 16 cases (5 in the Faculty of Medicine, 9 in the Faculty of Law and Political Science and 2 in the Faculty of Philosophy) in which a punitive expatriation between 1933 and 1941 (at the latest) led to the loss of the doctoral title due to the automatic depromotion procedure introduced in 1943. Many of the Würzburg academics who were depromoted were of Jewish origin. The files, which have only survived in part, allow for an exact determination of religious affiliation only in some cases. However, the student card index preserved for the years 1922 to around 1936 shows the Jewish (“Israelite” in the language of the student card index) religious affiliation of a large number of those who were later depromoted from those doctoral years. Würzburg’s strong Jewish community, which was well integrated into the life of the city, and Würzburg’s comparatively high tolerance of Jewish students48 made the university particularly attractive for them. Many of them chose an education that opened up the door to a “liberal profession” (in particular doctor, lawyer, businessman) without state admission restrictions (as was the case for civil service careers).49 The high proportion of doctoral degrees awarded by the Faculty of Medicine and the Faculty of Law and Political Science among the later depromotions reflects this. In some cases, the doctoral degree was not subsequently revoked because the university had already refused to award it and hand out the doctoral diploma due to the doctoral candidate’s Jewish origin or critical attitude towards the system, even though raubte Würde. Die Aberkennung des Doktorgrads an der Universität Würzburg 1933 – 1945, pp. 133 – 134. 47 In addition, there is the case of the physician Dr. Firnbacher, in which the university later withdrew the depromotion because the punitive revocation of citizenship had not been effective. 48 Cf. Flade, Juden in Würzburg 1918 – 1933, p. 176. 49 Cf. for example Harrecker, Degradierte Doktoren: Die Aberkennung der Doktorwürde an der Ludwig-Maximilians-Universität München während der Zeit des Nationalsozialismus, p. 96 et seq.

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the doctoral examination had been passed. Only two cases of this kind of academic degradation, carried out at the Medical Faculty in Würzburg, are known by name. However, it seems likely that the University of Würzburg, also perpetrated injustice against it members in other cases by refusing to recognise their doctoral achievements by awarding them degrees – quite apart from the fact that Jewish students were as a matter of principle no longer admitted to doctoral studies from April 1937.50 In the years after 1945, the university and faculties paid little attention to the depromotions that had taken place in Würzburg during the Nazi era. Only in 7 individual cases, in all of which a criminal conviction had given rise to the revocation of the doctoral degree, was there a rehabilitation – at the request of the person concerned. In contrast, nothing has come down to us that could indicate just one single official rehabilitation of a victim of a depromotion due to a punitive expatriation. There was no critical reflection on the Nazi academic injustices; rather, the topic was quickly forgotten. The faculties complied with requests from emigrated, depromoted alumni to send new doctoral certificates to replace the originals that had been lost during the war or due to emigration,51 as well as requests to award “golden doctoral diplomas” on the occasion of the fiftieth anniversary of the doctorate.52 Behind each of the Würzburg depromotions is the fate of a member of the university’s academic community. The biographical information on the Würzburg doctoral graduates compiled within the framework of the reappraisal project reflects the diversity of their life plans, their contributions to university, social and societal life and their suffering under systematic disenfranchisement and persecution. The deprivation of their doctoral degrees was only one of many forms of discrimination and degradation that academics, especially those of Jewish origin, had to endure under the Nazi criminal regime. In many cases, their (forced) emigration was preceded by bans on practising their professions, forced sales of companies or businesses or imprisonment in concentration camps. It is particularly tragic that some Würzburg PhDs who had initially fled abroad and were punitively expatriated and depromoted later became victims of deportation and murder – as did numerous other members of the University of Würzburg and their families. It is to be hoped that all the victims of the unlawful depromotions were at least not robbed of their inner dignity as PhDs of the University of Würzburg associated with their personal academic achievements and their intellectual ties as members of the university community.

50 Cf. the detailed rules on the doctorates of Jewish academics in Decree RMinWiss W A 590 W U Z IIa M.(b) of 15. 4. 1937. 51 Cf. for the Faculty of Law and Political Science file no. 367 “Ersatz-Diplome”; for the Faculty of Humanities Dean’s files of the Faculty of Humanities I. 52 Cf. for the Faculty of Law and Political Science file no. 368 I–II “Erneuerung der Doktordiplome 61 – 67” and file No. 368 “Erneuerung der Doktordiplome 1972 – 1985”, for the Faculty of Humanities Dean’s files of the Faculty of Humanities I.

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V. Rehabilitation Resolution The Senate, the Extended University Management and the University Council of the University of Würzburg publicly and unanimously adopted the following resolution at their meetings on 22 February 2011, 28 February 2011 and 14 March 2011: The deprivations of doctoral degrees carried out at the University of Würzburg in the years 1933 – 1945, based on National Socialist ideology, constitute arbitrary violations of human rights. They are in blatant contradiction to the principles of the rule of law, academic freedom and the humanistic academic spirit of the University. The University hereby expressly states that these unjust acts of political persecution were void from the outset. It is the explicit intention to do justice to all victims of the depromotions individually and to keep their personal and academic memories alive. As part of the process of reappraising the occurrences the University has identified a list of the names of those affected. However, it cannot be ruled out that further unlawful deprivations of doctoral degrees have not yet been ascertained by the current state of research and are still unknown by name. Today’s resolution includes those still unknown doctoral graduates in addition to the persons named below. Depromotions Siegfried Adler Joseph Aha Bruno Altenberg Wilhelm Isaak Auerbach Alfred Bacharach Samuel Badt Hermann Baer Kurt Baruch Egon von Bastineller Hans Beer Ernst Berg Hans Berg Charlotte Bergmann (geb. Manasse) Isidor Bettmann Ernst Julius Billigheimer Ernst Bloch Willy Bloch Wolfgang Bode Hugo Cahn Jenny Cohen (geb. Philipps) Arthur Cohn Hans Hermann Cramer Walter Daldrop Friedrich David Paul Doctor Hans Dombrowsky Friedrich Dünkelsbühler Alfred Eschelbacher Samuel Eschwege

Wilhelm Esslinger Arthur Eulau Willy Fackenheim Salomon Feibelmann Hans Nathan Feld Emanuel Firnbacher Julius Frank Rudolph Raphael Freudenberger Kurt Freudenthal Elias Fröhlich Theodor Fuchs Hermann Robert Daniel Ganz Theodor Geiger Hermann Geßner Siegfried Goldschmidt Willi Gotthilf Max Gottlieb Leo Gottschalk Adolf Grabowsky Ludwig Greger Ernst Grünbaum Isidor Hermann Gunzenhäuser Bernhard Gutmann Georg Hallemann Bernhard Hallenstein Max Hamburger Hans Martin Hammelbacher Fritz Hammelburger Ludwig Hammelburger

Restoring Stolen Dignity Heinrich Händler Julius Heilbrunn Moritz Heinemann Rudolf Jakob Heinemann Willy Herrmann Emil Herzfelder Paul Hes Walter Heßlein Ludwig Heussinger Arnold Heymann Artur Heymann Alfred Hirschmann Hans Hirschmann Willy Hofmann Josef Hudalla Eugen Israel Jakob Jakobsohn Ludwig Jessberger Fritz Kamm Rudolf Kayser Karl Klein Hermann Klugmann Günther Knobloch Walter Kohn Ernst Kohnstamm Albert Kritzmann Martha Lebermann Friedrich Lieberg Louis Lindenstein Rudolf Linz Wilhelm Simon Loeb Hugo Loew Philipp Löwenfeld Adolf Löb Lustig Ernst Mai Ludwig Mai Maximilian Mai Max Mainzer Samuel Mandelbaum Siegfried Marcus Kurt Edgar Marcuse Lothar Markiewitz Arthur Mayer Erich Mayer Eugen Mayer Ludwig Metzler Karl Meyer Karl Ernst Meyer Martin Mohr Justin Mohrenwitz Eugen Mosbacher Marcus Mosheim Hermann Müller

Eugen Nelkenstock Siegfried Neuberger Julius Nördlinger Israel Wilhelm Alexander Oppenheim Josef Oppenheimer Rudolf Oppenheimer Hermann Ostfeld Paul Felix Peltasohn Gustav Pfingst Sylvius Pick Ferdinand Popp Herbert Prasse Fritz Preiß Kurt Schimme Sheskel Rathe Hans-Josef Rehfisch Kurt Reis Alfred Reiß Julius Reiter Walter Rheinheimer Heinrich Rheinstrom Julius Richheimer Wilhelm Freiherr von Richthofen Ludwig Rose Erich Rosenbaum Otto Nathan Rosenberg Karl Samuel Rosenthal Kurt Rosenthal Alfred Sadler Gustav Samson Erich Samuelsdorff Kurt Schendel Georg Schlee Moritz Schlesinger Heinrich Schloß Rudolf Schmeidler Georg Schoenmann August Schulz-Albrecht called Otto Brattskoven Maximilian Schwab Herbert Schwarz Bruno Schwarzer Michael Siegel Bruno Sieger Fritz Simon Carl Sonnenberg Hans Isidor Otto Springer Leo Stahl Wilhelm Stamm Sally Stargardter Julius Stern Walter Ludwig Stern Otto Strasser Eugen Strauß Max Strauß

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Albert Stühler Hugo Tannenbaum Fritz Taussig Robert Theilhaber Ernst Israel Leopold Treidel Paul Tuteur Matthias Rudolf Vollmar Ferdinand Wagschal Karl Wallach Ernst Wallerstein

Harry Warburg Ludwig Weil Bernhard Weiß Ludwig Weitmann Simon Wittekind Oskar Wittmer Richard Alexander Wolf Ludwig Wolff Alfred Worms Felix Zedermann

Doctoral diplomas not awarded Elli Caspari Norbert Riedmiller

Bibliography Blecher, Jens: Akademische Graduierungen und deren Entzug im Dritten Reich und in der DDR. Untersuchungen am Beispiel der Universität Leipzig, in: Döring, Detlef (ed.), Universitätsgeschichte als Landesgeschichte. Die Universität Leipzig in ihren territorialgeschichtlichen Bezügen, Leipzig 2008. Breitbach, Michael: Das Amt des Universitätsrichters an der Universität Gießen im 19. und 20. Jahrhundert. Zugleich ein Beitrag zu den Doktorentziehungsverfahren zwischen 1933 und 1945, in: Archiv für hessische Geschichte und Altertumskunde, Neue Folge 59, 2001, pp. 267 – 334. Circular letter RMinWiss W f 3486/36 of 02. 03. 1937, UA Marburg, 305a Acc. 1975/79 and 1976/19, Nn. 534, p. 82, Bundesarchiv R 4901/769, p. 83. Collective circular letter of 12. 06. 1939, UA Marburg, 305a Acc. 1975/79 and 1976/19, No. 536, p. 122. Collective circular letter of 27. 03. 1940, UA Marburg, 305a Acc. 1975/79 and 1976/19, No. 536, p. 253. Decree BayMinKultus M. E. Nb. V 55485 of 03. 10. 1933, HStA München MK 70708. Decree RMinWiss W I a 603/55, M 1 of 13. 04. 1935, Bundesarchiv R 4901/12860, p. 2. Decree RMinWiss W I a 1910/36 of 16. 12. 1936, UA Marburg, 305a Acc. 1975/79 and 1976/19, No. 534, p.170, HStA München MK 70708. Decree RMinWiss W F No. 834 of 15. 04. 1937, UA Marburg, 305a Acc. 1975/79 and 1976/19, No. 534, p.170b. Decree RMinWiss W A 953 of 19. 05. 1943, UA Marburg, 307d Acc. 1966/10 No. 58, p. 12, Bundesarchiv R 4901/12860. Decree RMinWiss WA 590 W U Z IIa M.(b) of 15. 04. 1937, Bundesarchiv R 4901/14505, p. 26. Doctorate regulation of the medical faculty of 1935, HStA München MK 70708.

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Doctorate regulation of the philosophical faculty of 1935, HStA München MK 70708. Entziehung des Doktor-Grades – Einzelfälle, Bundesarchiv R 4901/13573, p. 99. Faculty of Humanities, Dean’s files of the Faculty of Humanities I. Faculty of Law and Political Science, file no. 367, “Ersatz-Diplome”. Faculty of Law and Political Science, file no. 368 I–II, “Erneuerung der Doktordiplome 61 – 67”. Faculty of Law and Political Science, file no. 368, “Erneuerung der Doktordiplome 1972 – 1985”. Flade, Roland: Juden in Würzburg 1918 – 1933, Würzburg 1985. Fuchs, Thomas (ed.): Strafgesetzbuch für das Deutsche Reich vom 15. 05. 1871. Historisch-synoptische Edition 1871 – 2009, Mannheim 2010, available at: lexetius.com (accessed at 23. 3. 2023). Happ, Sabine: Politische und nicht politische Aberkennung von akademischen Graden: eine Auswertung der Rundschreiben deutscher Universitäten in der NS-Zeit, in: Happ, Sabine/ Nonn, Ulrich (eds.), Vielfalt der Geschichte – Lernen, Lehren und Erforschung vergangener Zeiten. Festgabe für Ingrid Heidrich zum 65. Geburtstag, Berlin 2004, pp. 283 – 296. Harrecker, Stefanie: Degradierte Doktoren: Die Aberkennung der Doktorwürde an der LudwigMaximilians-Universität München während der Zeit des Nationalsozialismus, Munich 2007. Henne, Thomas: Die Aberkennung von Doktorgraden an der Juristenfakultät der Universität Leipzig – Überblick zu den Ergebnissen des Projekts, in: Henne, Thomas (ed.), Die Aberkennung von Doktorgraden an der Juristenfakultät der Universität Leipzig 1933 – 1945, Leipzig 2007, pp. 17 – 34. Henne, Thomas (ed.): Die Aberkennung von Doktorgraden an der Juristenfakultät der Universität Leipzig 1933 – 1945, Leipzig 2007. Hepp, Michael (ed.): Die Ausbürgerung deutscher Staatsangehöriger 1933 – 45 nach den im Reichsanzeiger veröffentlichten Listen, 3 Vol., Munich/New York/London/Paris 1985. Lehmann, Hans Georg: Acht und Ächtung politischer Gegner im Dritten Reich. Die Ausbürgerung deutscher Emigranten 1933 – 45, in: Hepp, Michael (ed.): Die Ausbürgerung deutscher Staatsangehöriger 1933 – 45 nach den im Reichsanzeiger veröffentlichten Listen, Vol. 1, Munich/New York/London/Paris 1985. Lemberg, Margret: “ … eines deutschen akademischen Grades unwürdig”: Die Entziehung des Doktortitels an der Philipps-Universität Marburg 1933 – 1945, Marburg 2002. Letter from the Rector of the University of Würzburg to the RMinWiss of 14. 11. 1938, Bundesarchiv R 4901/769, p. 119. Letter of RMinWiss of 08. 06. 1937, Bundesarchiv R 3001/22747. Letter of RMinWiss to RMinInnen of 12. 11. 1938, Bundesarchiv R 3001/22747, p. 103. Letter of 11. 07. 1942, Bundesarchiv R 4901/769, p. 238. Letter of 1944, Bundesarchiv R 4901/769, p. 259. Letter RMinInnen to RMinWiss of 11. 01. 1939, Bundesarchiv R 4901/769, p. 130.

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Moritz, Werner: Die Aberkennung des Doktortitels an der Universität Heidelberg während der NS-Zeit, in: Kohnle, Armin/Engehausen, Frank (eds.): Zwischen Wissenschaft und Politik. Studien zur deutschen Universitätsgeschichte, Stuttgart 2001, pp. 540 – 562. Rupp, Caroline S.: Die Entziehung von Doktorgraden an der Universität Würzburg, 1933 – 1945, in: Universität Würzburg (ed.), Die geraubte Würde. Die Aberkennung des Doktorgrads an der Universität Würzburg 1933 – 1945, Würzburg 2011, pp. 44 – 122. “Stürmer” No. 52, 12.1937, Bundesarchiv R 4901/769, p. 91a. Szöllösi-Janze, Margit/Freiträger, Andreas: “Doktorgrad entzogen”. Aberkennung akademischer Titel an der Universität Köln 1933 bis 1945, Nuremberg 2005. Thieler, Kerstin: “[…] des Tragens eines deutschen akademischen Grades unwürdig” – die Entziehung von Doktortiteln an der Georg-August-Universität Göttingen im “Dritten Reich”, Göttingen 2004. Universität Würzburg (ed.): Die geraubte Würde. Die Aberkennung des Doktorgrads an der Universität Würzburg 1933 – 1945, Würzburg 2011. Wollgast, Siegfried: Zur Geschichte des Promotionswesens in Deutschland, Bergisch Gladbach 2002.

II. Criminal Law and Criminal Justice

Criminal Law in Intercultural Dialogue1 On the Method of Culture-Based Comparative Criminal Law By Susanne Beck* The primary aim of culture based comparative law is a deeper understanding of foreign law as an expression and mirror of culture. This is an important basis for transnational communication in law which surely can be said to be represented by the opus and intercultural activities of Justice Yoram Danziger. Intercultural dialogue is especially important for criminal law, as it is, more than other areas of law, deeply woven into the cultural communication fabric of a nation. Scholars of comparative law should acknowledge the subjectivity that results from being shaped by their (legal) cultures and account for it both in the description and the evaluation of foreign law. Culture based comparative criminal law also requires consideration of the backgrounds of the situations to be compared – which is achievable through interdisciplinary cooperation, e. g. history, language, metaphysics, moral development, economy, social structures, etc. In the course of analysis, emphasis should be placed on differences, in order to understand the foreign law as well as the own law by understand the other from an external point of view.

I. Introduction Due to the speed of transport, the limitless possibilities of communication and the globalization of commerce and economy, the world has changed significantly in recent decades.2 National borders have lost their importance. These developments are impacting on national legal systems as more and more areas of life are no longer comprehensible in purely domestic terms.3 Especially in civil law which underpins the globalized economy, there is a notable increase in the number of transnational rules and regulations. However, even criminal law and criminal procedure law4, 1

The following thoughts are a translation of my article “Strafrecht im interkulturellen Dialog”, in: Beck/Burchard/Fateh-Moghadam (eds.), Strafrechtsvergleichung als Problem und Lösung, 65 – 86; for the translation I want to extend my heartfelt thanks to Verena Beck. * Prof. Dr. Susanne Beck holds the Chair of Criminal Law, Criminal Procedure Law, Comparative Criminal Law and Philosophy of Law at the University of Hannover. 2 See the contributions in Beck (ed.), Politik der Globalisierung. 3 An extensive “therapy” for this is proposed by Höffe, in: Brugger/Neumann/Kirste (eds.), Rechtsphilosophie im 21. Jahrhundert, p. 382 et seq. 4 Satzger, Internationales und Europäisches Strafrecht, p. 91 et seq. Likewise, BVerfG, 2 BvE 2/08 of 30. 06. 2009, p. 249. Hörnle, ZStW 117 (2005), pp. 801 – 838.

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which are by their very nature the areas of law most closely linked to individual nation states, are changing as a result of transnational changes in crime. Not only International Criminal Law5 and the development of criminal law in Europe6, but also discussions regarding specific crimes regarding the internet7, economy8 and environment9, are indications of the internationalization of these areas of law10. This is leading to a resurgence in comparative criminal law that had been neglected for a long time11: Through the application of the law, legislation and criminal law theory we are increasingly discovering possibilities as well as the necessity of including elements from foreign criminal law systems. However, this is – at least in Germany12 – only rarely done on the basis of adequate examination of the methodologies available. In many publications on comparative criminal law, the question of methods is either not discussed at all or one method, usually the functionalist variant, is used without further reflection13. This contribution seeks to supplement functionalism with culture-based comparative criminal law, which, going beyond the comparison of legal cultures, includes various interdisciplinary findings about the cultures of countries in comparison.14 By doing this, comparative analysis based on the function 5 See the contributions of Büngener/Burkhardt, in: Beck/Burchard/Fateh-Moghadam (eds.), Strafrechtsvergleichung als Problem und Lösung, with further references. 6 See the contributions of Hauck/Burchard, in: Beck/Burchard/Fateh-Moghadam (eds.), Strafrechtsvergleichung als Problem und Lösung, with further references, see also BVerfG, 2 BvE 2/08 from 30. 06. 2009, p. 249 “European unification […] may not be achieved in such a way that not sufficient space is left to the Member States for the political formation of economic, cultural and social living conditions. This applies in particular to areas […] that rely especially on cultural, historical and linguistic perceptions […].” 7 Hilgendorf, in: Schwarzenegger/Arter/Jörg (eds.), Internet-Recht und Strafrecht, pp. 257 – 298. 8 Tiedemann, Wirtschaftsstrafrecht AT, p. 5 m. w. N. 9 Heger, Die Europäisierung des Umweltstrafrechts. 10 Ambos, Internationales Strafrecht: Strafanwendungsrecht, Völkerstrafrecht, europäisches Strafrecht; Dannecker, ZStW 117 (2005), pp. 697 – 748. 11 Comparative law may have been the hobby of yesterday but is destined to become the science of tomorrow”, Lord Goff of Chieveley, International and Comparative Law Quarterly 46 (1997), pp. 745 – 748 (747). See, for example, Jescheck, Entwicklung, Aufgaben und Methoden der Strafrechtsvergleichung; Jung, JuS 1998, pp. 1 – 7; Perron, ZStW 109 (1997), pp. 281 – 301; Sieber, in: Sieber/Albrecht (eds.), Strafrecht und Kriminologie unter einem Dach, pp. 78 – 130. 12 Within the Anglo-American sphere, the debate was largely initiated by Frankenberg, Harvard International Law Journal 26 (1985), pp. 411 – 455; an overview of the current status can be found in the contributions in the “Utah Group”, Utah Law Review, Symposium Issue – New Approaches to Comparative Law; and in Nelken (ed.), Comparing Legal Cultures; Reimann/Zimmermann (eds.), The Oxford Handbook of Comparative Law. 13 See e. g. Hartan, Unternehmensstrafrecht in Deutschland und Frankreich, that only deals with the fundamental importance of criminal law in its discussion of methods; p. 9 et seq. A summary can be found in Richers, ZaöRV 67 (2007), p. 510 et seq. 14 See for the comparison of legal cultures: Cotterrell, in: Reimann/Zimmermann (eds.), The Oxford Handbook of Comparative Law, pp. 709 – 738 as well as the contributions in

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of law are not pushed aside or replaced – as it is precisely the resolution of practical problems that can be a big benefit of such an approach. On the contrary, it is possible, even necessary, to use a variety of approaches in comparative law. It is the interaction of approaches that allows for different perspectives, opens up new facets for the observation of different legal systems and thus, in their interplay, may lead to an approximation of reality. For, in the words of Nietzsche: “There is only a perspective seeing, only perspective ‘knowing’, and the more affects we allow to speak about one thing, the more eyes, different eyes, we can use to observe one thing, the more complete will our ‘concept’ of this thing, our ‘objectivity’, be.”15

II. Goals of Culturally Comparative Criminal Law Does current comparative criminal law research actually require additions? Does comparative criminal law, as Frankenberg states, need healers curing the participants of the ‘disease’ caused by their lack of method and theory?16 Why is it not sufficient to admit that functional comparative criminal law has in fact contributed to the resolution of practical problems in the past? 1. In Search of Knowledge This would not do justice to the potential of comparative criminal law, as it would reduce an academic activity in the humanities, a possibility of gaining knowledge, to its value for practical use.17 Attempts to understand the relativization of existing truths is a reason for academic activity in the humanities that needs no justification. At the same time, comparative law is a valuable examination of how we understand and interpret our own legal system and foreign ones. Comparative law thus includes hermeneutic questions18 – although post-structuralist points of criticisms have to be acknowledged and incorporated in our ways of interpretation and perception.19 Especially the acceptance of ambiguity, the deconstruction of seemingly contradictory Nelken (ed.), Comparing Legal Cultures. On the culture-based comparison going beyond this, see instead of many others, Frankenberg (supra note 12); Hörnle (supra note 4) or the contributions of the Utah Group (supra note 12). 15 Nietzsche, Zur Genealogie der Moral, III 12, zitiert nach Colli (ed.): Sämtliche Werke, Bd. 5. English version: Nietzsche, Basic Writings of Nietzsche, p. 555. 16 Frankenberg, Global Jurist Advances 6 (2006), p. 3. 17 Legrand, Legal Studies 16 (1996), p. 238: “Without doubt, a commitment to theory is paramount if comparative legal studies is to take place in any credible form.” See also Vasilache, Interkulturelles Verstehen nach Gadamer und Foucault, p. 56 et seq.; Waldenfels, Grundmotive einer Phänomenologie des Fremden. 18 Gadamer, in: Gadamer, Gesammelte Werke, Bd. 1, Wahrheit und Methode, p. 270 et seq. 19 Kögler, Die Macht des Dialogs. Kritische Hermeneutik nach Gadamer, Foucault und Rorty; Vasilache (supra note 17).

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aspects, the relativization of one’s own point of view, and the horizon of possible understanding require special emphasis in cultural comparative criminal law.20 As soon as comparative law research goes beyond practical aspects and aims at serving a deeper understanding of criminal law, it seems reasonable to turn to the background of the creation and application of the law, as well as to differences, and not to only scratch at the surface of legal texts but to reach into the depths of legal systems. Especially the relativization of law, as part of culture, makes this understanding of the regulation of the human coexistence possible. This is not only true for foreign law and culture – comparisons made in the awareness of the subjectivity of one’s own standpoint allow new insights into one’s own work as a legal scholar and into one’s own legal system.21 Thus, the main goal of culture-based comparative criminal law – understanding and relativizing – is achievable through referring to the cultural backgrounds of the legal systems compared. 2. Supplementing Functionalism in Practice-Based Comparative Law It is, however, also sensible for solving practical problems to strengthen culturebased analyses. Even and especially in the current globalized world, there are continuing differences between cultures that lead to serious difficulties and to miscommunication, often without being noticed,.22 The need to address these differences in order to achieve better cooperation and to find sustainable solutions can be seen in the increasing numbers of projects concerned with interculturalism, intercultural competence, etc.23 Supplementing functionalism is necessary regarding the practical benefits24 because a purely functionalist approach often faces limitations. This can be illustrated very well by an example from the area of corporate criminal liability. Most comparative law research on this subject has found that criminal prosecution of corporations having separate legal personality as corporations is an efficient means of combating 20

The importance of this kind of comparison is increased, among other things, by the movement of post-colonialism. Conrad/Randeria (eds.), Jenseits des Eurozentrismus. Postkoloniale Perspektiven in den Geschichts– und Kulturwissenschaften; Ashcroft/Griffiths/Tiffin, Post-Colonial Studies. 21 Legrand (supra note 17) p. 232 et seq. 22 See e. g. Hansen, Kultur und Kulturwissenschaft, p. 179: “Wenn unterschiedliche Lebenswirklichkeiten von den Kollektiven geschaffen werden, dann ergibt sich an ihren Rändern ein Verstehens- und Kommunikationsproblem.” [“If different realities of life can be created by the collectives, this results in problems of understanding and understanding on the margins.”, author’s translation]. 23 The Bertelsmannstiftung calls intercultural competence a key qualification of the 21st century: Bertelsmannstiftung und Fondazione Cariplo, Interkulturelle Kompetenz – Die Schlüsselkompetenz im 21. Jahrhundert?, www.bertelsmannstiftung.de (Downloads). 24 The practical use of functionalism is emphasized, among others, by Zweigert/Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts, p. 16.

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white-collar crime. There is at the very least express surprise that this legal model has not been introduced in Germany.25 The practical value of such contributions cannot be measured exclusively by whether the law is amended – one can, however, at least pose the question of what exactly would be gained by it if the expressed lack of understanding led to legal changes not to a coming together of different countries. The same is true for the subject of bio-criminal law, where numerous comparative law contributions can be found that express dissatisfaction at restrictive attitudes in Germany.26 Although this can certainly lead to increasingly critical examination of a country’s own laws – as long as they ignore the cultural roots of the restrictive approaches, discussion about differences between the German legal system and that of other countries has only been of limited significance. The functionalist approach of these comparative law studies is problematic, because the thorough inclusion of cultural background provided using this methodology is often only paid lip service.27 Additionally, functionalism adopts a point of view that is determined by the own legal system, without being aware of its subjectivity.28 This is by any means intended to deny the value of these studies for the legal professionals that work in practice, be it as a rationale in legal doctrine or legal policy or even in the field of law making.29 It should then be pointed out, however, that especially if there are significant differences between criminal legal regimes, a purely functional contrast of the problems – even if it is explicitly the function of the law, its practical application and the surrounding conditions are explained – can only provide very little understanding, but rather leads instead to the continuing illusion of mutual understanding.30 This is due to the fact that it is problematic to apply one country’s categories concerning the function of the rule or law to a foreign culture. Additionally, prioritizing function necessarily limits the law to being a tool and overlooks an aspect of the law that is significant, especially in criminal law. Criminal laws are not exclusively means to specific, measurable, and directly comparable ends but rather they are expressions

25 Stessens, International and Comparative Law Quarterly 43 (1994), p. 518; Beale/Safwat, Buffalo Criminal Law Review 8 (2004), p. 122. 26 As seen here, pointing out the problem of argumentation with permissive foreign regulation, Koch, Aus Politik und Zeitgeschichte 2001, p. 51 et seq. 27 Legrand (supra note 17), p. 236; Zweigert/Kötz (supra note 24) point out that for practical comparative law, the reduction of academic standards have to be accepted in order to meet time constraints (p. 12), the demand to objectivity and exactness (p. 44) gives way to the necessity, in which the decision on the better law must be based on the immediately obvious material justice (p. 23). See Richers (supra note 13), p. 512. 28 Frankenberg (supra note 12), p. 411; Richers (supra note 13), p. 513 et seq., p. 517 et seq. 29 Thus, the works cited in supra note 26 have, as already mentioned, the effect of selfreflection on the part of the German legislator. 30 Legrand (supra note 17), p. 236 et seq. “a superficial and, therefore, meaningless way”.

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and communication of the culture of the respective country.31 Not infrequently, the necessary reflection is missing from discussion about the category “law” and the surrounding “legal culture”, its functionality and its content.32 A functional comparison thus necessarily falls short of a comprehensive understanding of “law” even if it includes the environmental conditions of the law. The communicative aspect of law is not discernible from the internal perspective, which is entrenched in the legal system. This is also evident in the frequent neglect of the problem of different languages in functionalist comparative law studies.33 Precisely because language is a tool and the interpretation of it is the task of legal scholars, it is surprising how seldom it is even discussed that a translation of legal texts and legal ideas from one language into another is nearly always a distortion, an adaptation of foreign legal concepts into the own system and existing categories.34 As long as functionalist comparisons avoid this discussion, they remain necessarily a mere approximation to the foreign law in the unreflected categories of one’s own law. Thus, these comparisons need to be supplemented by a methodology that addresses those aspects of law that have been neglected: The causes, the cultural roots, the meaning.35 The point of view of this comparison is also in a certain sense “internal”, because it continues to be shaped of one’s own culture and remains subjective. However, it does not start from the law and includes culture as the background of the legal system, but rather looks at the law from a cultural perspective. Beyond “legal cultures”, the entire culture is considered and included in the comparison. Moreover, this methodology consciously perceives the subjectivity of one’s own point of view and includes that in the question of purpose, the possibility of knowledge, as well as the limits and the achievability of making neutral comparisons. On the one hand, this enables a deeper mutual understanding with regard to law, and, on the other hand, it makes possible rapprochement on a cultural level. Such a methodology involves more knowledge of the country, whose law a scholar compares to the law of his own country, because the external point of view, which is open for the background of the laws, is added to already existing knowledge. For this, it is necessary to consciously position oneself as a layperson or as an external observ31

See among others BVerfG, 2 BvE 2/08 of 30. 6. 2009, p. 253. Legrand (supra note 17), p. 235 et seq. 33 Legrand (supra note 17), p. 234 et seq. 34 Legrand (supra note 17) p. 237 explains with the example of the English “common law” that does not know the categories of “right” or “rule” and has not – in contrast to “civil law” developed as a system and did not want to develop as such. See also Jung, ZStW 121 (2009), p. 492 et seq. 35 Cotterrell, in: Reimann/Zimmermann (eds.), The Oxford Handbook of Comparative Law, pp. 710 – 737; Legrand (supra note 17), p. 236: “French law is, first and foremost, a cultural phenomenon”; see also the contributions of the Utah group (Supra note 12). Critical see Peters/Schwenke, International and Comparative Law Quarterly 49 (2000), pp. 800 – 834. 32

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er in the foreign legal system and foreign culture. Moreover, it enables the person studying the foreign law to gain new knowledge about the cultural embeddedness and relativity of her own law. Mutual understanding, in turn, enables intercultural communication regarding practical solutions, such as those required at the European level. Without of understanding the cultural reasons that prevent the German legislature from introducing a corporate penalty of liberalizing biotechnologies, a conversation about European regulation – or a European approach to different regulation – is more difficult.

III. Theoretical Background of Culture-Based Comparisons in Criminal Law 1. Culture – An Attempt at a Definition Culture – this extremely complex term is the basis of culture-based comparative law.36 Originally it just meant “cultivation” and stood in contrast to “nature”. The term “culture” contains a number of different aspects and can be located on both abstract and concrete levels.37 When considering culture-based comparative law, culture can be plausibly defined as the sum of human expressions of life as well as the standardized collective habits, as an intellectual and interpretative understanding between humans. Culture as a totality of “ideas, belief systems and values”38 of a society shapes all things and thoughts, the perception of natural phenomena and social conditions; it influences the formation of consciousness of everyone living in it.39 Culture is also related to following rules,40 whereas both rules and cultures are neither random nor strictly determined. Against the natural reality of the world stands culture as created by humankind, against the complete freedom of the individual reason stands culture as precondition and limit. A further area of tension exists with regard to the formation of culture. In recent years the growing awareness has reached legal studies concerning the idea that the law is, on the one hand, controlled by cultural development and a consensus regarding cultural truth, while, on the other hand,

36

Busche, Dialektik – Zeitschrift für Kulturphilosophie 2000, pp. 69 – 90. An overview of the current debate at: Jaeger/Liebsch/Rüsen/Straub (eds.) Handbuch der Kulturwissenschaften Bd. 1 – 3. 37 See e. g. The three levels at Müller-Funk, Kulturtheorie, p. 8: 1) culture as comprehensive whole, 2) culture as total of symbolic forms and habitual practices, 3) culture as a closed system. [1) Kultur als umfassendes Ganzes, 2) Kultur als Insgesamt symbolischer Formen und habitueller Praktiken, 3) Kultur als geschlossenes System.]. 38 See for the Balines kinship concept: Geertz/Geertz, Kinship in Bali, p. 2 et seq. 39 Losch, Kulturfaktor Recht, p. 32 et seq. 40 Eagleton, Was ist Kultur?, p. 11 et seq.

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it fulfils an instrumental function for culture itself.41 The legal system contains all the elementary and universally valid rules of order and communication of society that can be enforced by public force and authority.42 It is therefore at the same time an expression of culture and a specific kind of cultural communication; then again it changes and shapes the culture of a society.43 Occasionally, concerns are raised regarding the vague term “culture” because it seems to serve to obstruct the lack of clear causes and interconnections.44 It has to be conceded that retreating to cultural backgrounds can serve as a collection of vague sketches and unclear connections – but only if it is used in an unconsidered and unstructured manner. Moreover, the vagueness of the term is also a reflection of the actual complexity of societies in which clear cause-and-effect relationships can only seldom be found or proven. In particular, it is problematic that in a particular country – because the framework for comparing law systems determined by legal systems closely connected to nation states – there is not merely one culture to be found, but many, as well as the overlap of different cultures, influences and imprints by other cultures.45 In the awareness that an examination of foreign cultures and their legal systems is always just an approximation, a presentation of some facets or new aspects, can only be a method based on plausibility, it is nevertheless possible and necessary to engage with the risk of the vagueness of culture. Legal culture is a subcategory of culture. It is the special nature of the everyday life of the legal system of the particular county. It includes the legal language, the legal education, the prominence of argumentation and values but also the reality of the law – waiting periods in the court system, the ratio of “plea bargaining” to actual convictions after trial, etc. All of this has to be included in culture-based comparative law study, but it has to go even beyond that – as already pointed out – and, as far as possible, include the culture as a whole as well. 2. Culture-Relatedness as a Product of Postmodernism In this acceptance of vagueness and incompleteness, the exploration of limits and the relativity of achievable truths, the postmodern roots of culture-based comparative 41

This refers to written law as well as unwritten law, substantive as well as procedural law, institutions, and legal methods. Losch (supra note 39), p. 25. On reciprocol influence: ibid. (supra note 39), p. 44. 42 Losch (supra note 39), p. 34. On the problem of defining what “law” is in the sense of comparative law, see Legrand (supra note 17), p. 235. 43 Geertz, in: Geertz, Local Knowledge. Further Essays in Interpretative Anthropology, pp. 167 – 234; Gessner, Ratio Juris 7 (1994), pp. 132 – 145; Krygier, Law and Philosophy 5 (1986), pp. 237 – 262; Marcic, Rechtsphilosophie, p. 43. 44 See Hörnle (supra note 4), p. 802. 45 Cotterrell, in: Nelken (ed.), Comparing Legal Cultures, p. 15 et seq.

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criminal law become evident. It is no easy undertaking to describe postmodernism46, because there is no single postmodernism – instead the term covers a development that is manifested in science, art, politics, etc. In a manner that can be difficult to grasp, postmodernism is not necessarily characterized by new content or results, but by a special gaze, a changed perception.47 It is a suspicious gaze, a perception detached from traditions. However, suspicious does not mean destruction, detached from traditions does not mean breaking with them and the expansion of goals beyond solutions to concrete problems does not lead to the futility of reflection.48 The “grand narratives” of modernity have been abandoned,49 the search for universal values or ultimate justifications, for a comprehensive, all-explanatory system, was declared to be over. The world, according to the impression given by post-modernism, can best be understood as a collection of facets, an equal juxtaposition of different truths and insights. In relation to the law, this perspective means a relativizing of one’s own system, facilitating confrontation with the foreign from a consciously subjective – and yet or precisely as a result – recognizing and understanding different perspectives. Postmodern concepts are not necessarily needed to understand the law, although they are ideally compromises between all the individual truths and values of a concrete society. They are nevertheless necessarily expressions and elements exactly of the culture and communication of that historically and geographically specific society. However, a conscious deconstruction of the system “law”, its contradictions, its “nature” facilitates this realization.50

46

Postmodernism can refer, depending on the context, to a historical epoch, a cultural movement, or a philosophical school of thought. In this contribution, the philosophical school of thought is emphasised, especially the “Ende der großen Erzählungen” [end of the grand narratives] according to Lyotard, see Lyotard, Das postmoderne Wissen, (orig.: La Condition postmoderne: Rapport sur le sa-voir, Paris 1979), p. 112. On the one hand, this work is a descriptive account of the current epoch, but it is also an evaluation insofar as the exclusion of heterogeneity by modernity is assessed as recognizing reality only in a distorted way. 47 This includes, for example, deconstruction, which became prominent especially in Derrida (e. g., Die Schrift und die Differenz), cf. also Engelmann, Postmoderne und Dekonstruktion: Texte französischer Philosophen der Gegenwart. 48 See Heidegger, Sein und Zeit, p. 22: “Die Destruktion hat ebenso wenig den negativen Sinn, einer Abschüttelung der ontologischen Tradition. Sie soll umgekehrt diese in ihren positiven Möglichkeiten, und das besagt immer, in ihren Grenzen abstecken, die mit der jeweiligen Fragestellung und der aus dieser vorgezeichneten Umgrenzung des möglichen Feldes der Untersuchung faktisch gegeben sind”. [“Destruction has just as little the negative meaning, a shaking off of the ontological tradition. It is meant, conversely, to mark it out in its positive possibilities, and that always means in its limits, which are factually given with the respective question and the delimitation of the possible field of investigation marked out from it.”]. 49 Lyotard (supra note 46), p. 112. 50 Richers (supra note 13), p. 517 et seq.; see also Jayme, Rechtvergleichung – Ideengeschichte und Grundlagen. Von Emerico Amari zur Postmoderne, p. 103 et seq.

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3. The Relativization of Supposed Objectivity and Neutrality One element of this relativization of the legal system is precisely culture-based comparison. As seen above, serious comparative law studies have dealt with the cultural conditions of legal systems that have been compared for a long time and have developed a consciousness of the necessity of interdisciplinarity. However, it should be noted that a large number of comparative criminal law studies still do not take these considerations into account in any way. Of course, this is not true in serious studies, but in those as well, some points of criticism can be found. Those points were already clearly summarized by Frankenberg 25 years ago: “As comparative legal scholarship’s faith in an objectivity allows culturally biased perspectives to be represented as ‘neutral’, the practice of comparative law is inconsistent with the discipline’s high principles and goals”51. The criticism here is quite correctly levelled at the claim of a non-existent objectivity and neutrality in made reality by most comparative criminal law studies – already in the description but especially in the evaluation of legal systems. To return to the example of corporate criminal liability mentioned above: In a comparative law publication on this topic published in 199452, Stessens – in search of European harmonization – posed the question how corporations could be subjected to criminal punishments. The bias of the supposedly objective study resulted not only from the fact that there was only the question posed of “how” and not first the question of “if”, but also from the fact that the only criterion of evaluation used was that of efficiency. The fact that in other cultures, such as in the German one, deontological arguments also play an important role, was not considered.53 Therefore, it is not surprising, that Stessens came to the conclusion: “The only effective way to combat corporate crime is to direct punitive sanctions against corporations.”54 In light of the subjective selection of the description and evaluation criteria, this strong and in no way relativized conclusion was surprising, to say the least. Admittedly that might be an extreme example, but the problem of strongly objectified description and evaluation can be found in many comparative law studies.55 A comparative law study is necessarily faced with at least two different value systems. As soon as one of those systems is singled out in the examination in order to compare two situations, one evaluates one legal system by means of criteria from the other. This is then by no means an objective or neutral comparison. A closed system of val51

Frankenberg (supra note 12), p. 411. Stessens (supra note 25). 53 See Hörnle (supra note 4), p. 812 with further references. 54 Stessens (supra note 25), p. 518. Within his own value system, this result may at first sound consistent – but this does not lead to the conclusion that the corporate criminal liability is “the only effective way”. 55 With mostly western perspective: Markesinis, Comparative Law in the Courtroom and Classroom, p. 50: “[…] in the European world […] one finds the most developed ideas likely to deserve careful study”. Further examples at Richers (supra note 13), p. 513 et seq. 52

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ues standing above the two, against which one could measure both legal systems, cannot easily be found; this is true at least if one accepts as a premise that the search for a universally valid system of values has proven to be unsuccessful.56 Disguising this problem by denying the value of debate on methodology would constitute a reduction of comparative law from a body of knowledge to a rhetorical tool. It would then only be used to affirm those values in the application of law, legislation, or even the harmonization of laws that the comparer already assumes to be “correct” in the first place due to the specific situation – either due to an inability to extricate herself from her own cultural value system or due to a fascination with the foreign57 that does not comprehend the underlying culture. This would not do justice to the possible significance of critical comparative law study.58 It does not follow from that that culture-based legal comparison is the only acceptable approach. As Ralf Michaels accurately points out in the Handbook of Comparative Law, limiting oneself to one method either means a lack of conceptual explicitness or a lack of theoretical precision.59 It means, however, that recognition of the relativity of one’s own values is of central importance and ought to be considered and disclosed in any comparative law study. A positive example is the study by Beale & Safwat, which admitted: “We acknowledge that there are also other significant factors our article does not discuss – including differences in the history, traditions, and social conditions of the various Western European countries”.60 However, the awareness and disclosure of the own cultural bias in comparative law, functionalist studies are of course not the end but merely the starting point for a possible comparative law that comprehensively takes culture into account.

56 The rejection of a universal value system neither means the incommensurability in the sense of an impossibility of any comparison nor should it be denied that there everyone has an own standard for rationality and values that can be found in every culture (it is another question which normative content it has). However, the own value system is just as unsuitable as a standard of comparison as moral criteria based on a strong universalism. It should be noted, in particular, that normativity, just like perception and social understanding is formed by language and is thus necessarily shaped by culture. See among others Wittgenstein, Philosophische Untersuchungen, p. 568. On the distinction between relativism and incommensurability, see among others Cappai, in: Renn/Srubar/Wenzel (eds.), Kulturen vergleichen, p. 51; Göller, in: Kaufmann (ed.), Wahn und Wirklichkeit – Multiple Realitäten. Der Streit um ein Fundament der Erkenntnis, pp. 269 – 283; see also, if in part contradictory, Sukopp, Aufklärung und Kritik 2005, pp. 136 – 154. 57 Zumbansen, German Law Journal 6 (2005), p. 1075. 58 Frankenberg (supra note 12); Legrand (supra note 17). For critical comparative law among others, Mattei, in: Reimann/Zimmermann (eds.), The Oxford Handbook of Comparative Law, pp. 815 – 836. 59 Michaels, in: Reimann/Zimmermann (eds.), The Oxford Handbook of Comparative Law, p. 343. 60 Beale/Safwat, Buffalo Criminal Law Review 8 (2004), p. 162.

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IV. Implementing Culture-Based Comparative Law In addition to this admission, culture based comparative criminal law study is characterized by further methodological features. 1. Reflections on Goals For any comparative law study, but especially for specifically culture-based ones, there needs to be in each case clarity about the aims pursued.61 As shown above, the goal of culture-based comparative criminal law studies is usually deeper understanding. Even then it makes sense to deal in detail with what specifically is to be understood, which aspects and facets are chosen, and for what reason, before the investigation commences. It is about an understanding of the other or the self? To whom the understanding is to be communicated is important – specifically if members of one’s own legal system or those of the foreign one are addressed by the study and whether those persons are legal experts or laypeople. Understanding, however, does not have to be the only aim of the culture based comparative law study. Better understanding can also be the basis for the solution of practical problems. Here, too, a distinction must be made: Is the goal a search oriented towards practical application for better solutions for one’s own law? Or is it politically motivated by harmonization of laws? Especially in the search for practical solutions, it is necessary not only to understand the foreign rules and regulations, but also to evaluate them. The search for evaluation criteria that do justice to the relativity of cultural systems should be carried out with a conscious view of the aims and one’s own subjective point of view. If an improvement in the one’s own legal system is the aim of the study, apart from the efficiency of the foreign legal system in the local culture, it is necessary to examine to what extent it could be integrated into the own cultural ideas and systems. If a compromise between different legal rules and regulations is necessary, for example, within the framework of international treaties or institutions, the evaluation is much more difficult – regardless of the fact that in reality the rules are often at least as much an expression of political constellations and power relations as the result of a search for the “best” solution. But even in such contexts, understanding the reasons for specific national laws can facilitate communication.

61

Jung, Grundfragen der Strafrechtsvergleichung, Section IV.

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2. The Legal Understanding of Culture-Related Considerations Culture-based comparative law requires viewing law as an aspect of a society’s cultural62, a specific, explicit communication that can be enforced as opposed to the otherwise mostly implicit or at least different understanding of cultural content. Culture is open to any situational interpretation, while the law must be understood according to its regulative tasks and imperatives.63 However, they must be considered as a whole, as diverse expressions of cultural identity. Explications of cultural background can be found at the most diverse levels of the law – for example, in legislation, practical implementation, and interpretation of the law.64 Since law, like culture, is constantly changing and evolving, the two are in constant interplay. Even if cultural preconditions become law on the basis of political decision making, it is necessary to understand the law: Laws cannot be interpreted on their own – a reference back to the cultural preconditions and expectations of society is always necessary.65 Accepting this interconnectedness of law in culture, as a pre-condition, means, first of all, that comparative law must detach itself from a focus on written law and adopt a perspective that perceives law as part of cultural communication. The law is much more than legal texts – it is lived law, as it is found within the legal system in judicial decisions, academic controversies and in legal education on the one hand, and in society in the attitude towards crime reporting, the readiness to implement law and the preference for conflict-solving strategies, on the other hand.66 In a first step, the comparison must therefore be extended towards the legal cultures of the countries concerned.67 It is this approach that is the characteristic element in comparative legal studies, in contrast to the comparative studies in other disciplines. On account of their specific training, legal practitioners possess knowledge about the legal culture of their own country, as well as about the characteristics of law vis-à-vis other cultural communications, which can, within limits, also be transferred to other countries and 62 And thus detachment from one’s own conception of law, see Frankenberg (supra note 12) p. 43: “The implied adequacy of law to solve what appear to be universal and perennial prob– lems of life in society betrays and underscores … how their [Western cultures; remark of the author] notion of law is itself privileged”. The concept of law was already referred to as the concept of culture by Radbruch, in: Kaufmann (ed.), Gesamtausgabe: Rechtsphilopohie II, p. 29. See also Kahn, The Cultural Study of Law; Sarat/Kearns (eds.), Law in the Domains of Culture. On the “Schichtenlehre” of law see Jung (supra note 34), p. 494 et seq. 63 Losch (supra note 39), p. 56 et seq. 64 A very far-reaching version of this understanding of law is represented by “American Legal Realism” see Leiter, in: Edmundson/Golding (eds.), The Blackwell Guide to Philosophy of Law and Legal Theory, pp. 50 – 66. On the topic that the classification of law as a cultural phenomenon is difficult to dispute, see also Jung (supra note 34), p. 493. 65 Losch (supra note 39), p. 35 et seq. 66 On French law, see Legrand (supra note 17), p. 235 et seq. On the meaning of “law in action” Jung (supra note 34) p. 499. 67 Cotterell (supra note 14); Jung (supra note 34), p. 493; Nelken, in: Sarat (ed.), The Blackwell Companion to Law and Society, pp. 113 – 127.

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their legal systems. That is why legal practitioners carry out different comparisons, for example, than anthropologists or sociologists, since their view in culture-related comparison, although comprehensive, is always oriented towards law; their understanding, although open to culture in comparison to that of a functionalist comparer, is still that of a legal practitioner, who is acutely familiar with legal argumentation, with the specificity of the system “law” and its internal features. 3. Interdisciplinarity of Comparative Criminal Law However, culture-based comparative legal studies do not just stop at the comparison of legal cultures and the broadening of our understanding of the law. They go one step further in the development of a cultural understanding of law. Admittedly, legal scholars are only partly able to present the cultural background and the embeddedness of law as a whole, or even of a concrete legal rules. For this reason, culture-based comparative law studies require interdisciplinary cooperation or at least the incorporation of findings from other disciplines.68 They serve to provide a deeper understanding of the cultural reasons for a particular rule or regulation as well as its role in the society in question. Aspects to be considered may include: the rules of language as root and main medium of expression of a culture, the moral manner of reasoning, traditions, symbols and rituals, the metaphysical background (religion or its alternatives), guiding principles, the political system, the economy, family and social structure etc. of a particular society, as well as specific developments in the subject areas to which the rules to be compared refer.69 Language was deliberately placed at the beginning of that list, because it plays a special role since it serves to convey ways of thinking and capacities for understanding that are culturally formed. Admittedly, it is impossible to consider all these aspects in a comparative law study. Culture in and of itself cannot be categorically defined as it has too many facets, is constantly in flux, and is necessarily vague. It is however the task of a good comparative law study to identify the information important for the specific question it wants to answer. This can significantly improve the understanding achieved of one’s own system of different legal situations as Hörnle showed in her culturebased comparison of criminal procedure.70 The way criminal procedure is organized is related to general structures for the exercise of power by the state.71 It is plausible that the prosecutorial discretion that is common in England is due, among other things, to the fact that the non-hierarchical exercise of power there, and the associated discretionary power of decision-makers, led to general acceptance of greater inequal68

Legrand (supra note 17), p. 238; Jung (supra note 34), p. 492. Legrand (supra note 17), p. 236, who does not come from an umbrella term of culture but from an examination with the phenomena law: “law is an indissoluble amalgam of historical, social, economic, political, cultural, and psychological data”. 70 Hörnle (supra note 4), pp. 801 – 838. 71 Hörnle (supra note 4), p. 805. 69

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ity. Additionally, according to Hörnle, the personal responsibility of decision-making that plays a large role in this procedural principle, is to be understood as an expression of personal dignity.72 This is just one successful example that bases a comparative law study on deeper understanding, in order to recognize the relevant backgrounds and cultural roots of rules and regulations and to increase society’s sensitivity for its interconnectedness. Lastly, the aforementioned study shows that an analysis that includes culture can produce answers for practical questions at legal policy.73 On the other hand, as Legand noted, no one has claimed that comparative law is easy.74 This cannot, however, lead to the consequence that one tries to make comparative legal studies easier by excluding key areas of research. It is to be hoped, for example, that a steadily growing body of culture-based comparative law studies will open up the possibility to refer to findings on fundamental cultural differences between societies and their impact on legal systems. 4. Acceptance of Ambiguity The acceptance of ambiguity is also necessary since cultural communication – and therefore also legal communication – does not follow set rules but always leaves room for different interpretations, changes, or ambiguities.75 This can be difficult for legal scholars because, while they learn that there exists some leeway for interpretation during their studies, they always search for a “correct decision”, i. e. a position that is based on “better arguments”. The fact that several interpretations of cultural communication can coexist, having equal value and significance, is difficult to include in a typical comparative law study. This is, however, precisely the challenge of cultural observation and the interdisciplinary analysis of law. 5. Emphasis on Differences Another aspect that is often underrepresented in comparative law works is the focus on differences.76 This is, on the one hand, due to the fact that scholars undertaking legal comparison view foreign law from the perspective and under the cultural influence of, their own legal system, and therefore first look at what is familiar to them.77 On the other hand, many of these studies have the aim of harmonizing legal systems so for this reason it is also obvious to emphasize similarities. This re72

Hörnle (supra note 4), p. 807. For example the results found make it possible to assess possible resistance in the course of Europeanization of criminal procedure Hörnle (supra note 4), p. 834 et seq. 74 Legrand (supra note 17), p. 239. 75 Frankenberg (supra note 12), pp. 411 – 455. 76 Legrand (supra note 17), p. 239. On the over-emphasis of similarities in traditional legal comparison see Richers (supra note 13), p. 513 with further references. 77 Cappai (supra note 56), p. 48. 73

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duces, however, possibilities of exploring cultural peculiarities, because just viewing the differences and their reasons leads to indirect cultural communication that takes place in the background, but emphasising rules and regulations. We can view medical criminal law as an example of this: A comparison of this subject area in Germany and in China can serve the purpose of a deeper understanding. Of course, it is necessary to present the different legal rules: For example, there is no rule in China – in contrast to Germany – that criminalizes a medical practitioner’s treatment of her patients without their consent. In addition, an understanding requires an interdisciplinary approach with regard to the practical implementation of the law – Chinese law cannot at all be understood in its entirety comprehensively through a focus on written law. Only by examining the legal reality does it become apparent that it is legally accepted in China that the head of the family regularly makes medical decisions for the family together with the medical practitioner. This difference from Germany can only be understood by including the culture of both countries, historically evolved, unspoken, which reflects traditional rules concerning the balance between individual autonomy, social responsibility and commitment.78 The same applies to the laws regarding abortion. From a German point of view, it would be difficult to understand from reading the statute law that the Chinese provisions – put mildly – do indeed promote abortion by the state according to the prevailing interpretation. Without background knowledge of the political system, family policy, but also the official and unofficial exceptions to the one-child-policy, and its reasons, as well as the “bribery culture” in China, this knowledge would remain empty of content and substance and therefore hardly make possible an understanding of the Chinese reality.79 There may be some proponents of functionalism who view this in a similar manner, but there are still the problems already mentioned above concerning the intensity of the inclusion of cultural background, the awareness of the subjectivity of one’s own point of view, and detachment from one’s own legal system and acknowledgement of its relativity. 6. Particularities of Criminal Law Integrating the culture of a state into comparative law studies is of particular relevance for criminal law as its norms are more than just a manual to be implemented by force. Criminal laws have highly symbolic value, in addition to their practical signif78

Cong, Doctor-Family-Patient Relationship: The Chinese Paradigm of Informed Consent, Journal of Medicine and Philosophy, pp. 149 – 178; Tai/Tsai, Croatian Medical Journal 44 (2003), pp. 558 – 561; Triandis, Psychological Review 96 (1989), pp. 506 – 520; Triandis/Suh, Annual Review of Psychology 53 (2002), pp. 133 – 160. 79 Family Planning Law and China’s Birth Control Situation, http://www.china.org.cn/eng lish/ 2002/Oct/46138.htm (20. 10. 2009); Florida, Asian Philosophy 1 (1991), pp. 39 – 50; Qian/Tang/Garner, BMC Health Services Research 4 (2004), http://www.biomedcentral.com/ 1472-6963/4/1 (20. 10. 2009); Winckler, Population and Development Review 28 (2002), pp. 379 – 418.

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icance.80 The law also communicates to the society as a whole which behavior is deemed reprehensible and will be suppressed by the criminal law, with the state’s sharpest weapon. In terms of positive general preventive measures, this serves as a kind of “purpose” of the laws, but it is too vague and unspecific to find in it a specific “function” in the sense of functionality that can be unambiguously measured and compared.81 At this point, it will be useful to return to the issue of corporate criminal liability. In Germany, corporations can be sanctioned, but criminal law is deemed inapplicable. It should be noted that Germany has an additional solution to conflicts in the form of the Act on Regulatory Offences (Ordnungswidrigkeitenrecht), which does not have an equivalent counterpart in England. This example and other internal legal considerations cannot, of course be excluded from a cultural comparative law study. Next, we should take a look at the different “mentalities” of lawyers and legal cultures.82 For instance, legal argumentation tends to be inductive in England and deductive in Germany. A more extensive understanding, however, is only possible by considering the specific cultural significance of criminal law, on the one hand, and the perception of corporations, on the other. Here, it could be pointed out that the particular importance of deontological argumentation and the special perspective on human dignity in Germany as an expression of individual autonomy are manifested, among other things, in a special perception of individual criminal culpability in criminal law, thus making it difficult to include collectives and organizations.83 This special philosophical character also leads to a stronger emphasis on pragmatism in England, on the one hand, and a prioritization of principles in Germany, on the other.84 It is also important to consider differences in economic development: In Germany, in contrast to England, a more egalitarian attitude prevails, conflicts between class structures or stakeholders tend to be avoided, participation in corporations has a long tradition – and for these reasons there is a stronger bond between employees and the respective corporations, as well as a somewhat reduced skepticism toward 80 BVerfG, 2 BvE 2/08 of 30. 06. 2009, p. 253: “Die Strafrechtspflege ist […] von kulturellen, historisch gewachsenen, auch sprachlich geprägten Vorverständnissen und von den im delibe– rativen Prozess sich bildenden Alternativen abhängig, die die jeweilige öffentliche Meinung bewegen”.[The administration of criminal law depends on cultural processes of previous understanding that are historically grown and also determined by language, and on the alternatives which emerge in the process of deliberation which moves the respective public opinion] Translation provided at https://www.bundesverfassungsgericht.de/SharedDocs/Ent scheidungen/EN/2009/06/es20090630_2bve000208en.html (23. 01. 2023). 81 Roxin, Strafrecht AT, p. 80 et seq. 82 Legrand, European Legal Systems are not Converging, International and Comparative Law Quarterly, p. 56. Jung (supra note 34), p. 497. 83 Ewald, University of Pennsylvania Law Review 143 (1995), pp. 1889 – 2149 correctly asserts that philosophy matters for comparative law On the English situation, see Midgley, British Journal of Law and Society 2 (1975), p. 161 et seq.; on the German development Dübber, Law and History Review 19 (1996), p. 452. 84 Hörnle (supra note 4), p. 810 et seq.

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these organizations.85 The languages also suggest differences: In German the term Unternehmen is derived from the term Unternehmung, which can be translated into English as “activity” or “enterprise” whereas the term corporation used in this context in England is derived from the Latin “corpus”, meaning “body”. These are only a few points of departure that would be significant in a cultural comparison of criminal law. 7. Evaluation: Universalism or Relativism? If a description of the different legal rules and regulations, which was expanded by other disciplines, is to be followed by an evaluation, this evaluation has to be done in the knowledge of its relativism. It is not possible for a legal practitioner who has been shaped by a particular legal system to completely understand a foreign legal system and to become as familiar with the fundamental values of a society as would a legal practitioner who had grown up there. A valuation as “worse” or “bad” of the Chinese rules and regulations concerning medical consent because of the lesser consideration of autonomy there would be an inappropriate condemnation of a culture that has attached less importance to this value in its millennia of development. That does not mean that there is no valuation possible for the comparative legal scholar, only that it is necessarily a different one than that of a local legal practitioner.86 This can be an asset since the foreign system is complemented by an outside perspective and the comparative legal practitioner’s own legal system is exposed to other valuations and critical perspectives. Moreover, a valuation and criticism of the foreign or one’s own legal system is sometimes unavoidable. In the field of biotechnology, developments in one country necessarily have significant consequences for other countries, so that a total acceptance of national differences is not practicable despite being understandable from a cultural point of view. The problem becomes even more apparent in respect of significant disadvantages of individuals or minorities within a culture. These, too, are occasionally culturally justified, such as the genital mutilation of women. However, it seems questionable to ignore such behavior under the guise of intercultural acceptance.87 The line between necessary tolerance of the foreign culture and clear objectionability of the foreign law is not easily, and especially not universally, determinable. The familiar discussion in human rights debate concerning the relationship between universalism and relativism88 must in the end be carried out anew in each specific individual case. In this con-

85

Albert, Capitalism against Capitalism. Legrand (supra note 17), p. 238 et seq. 87 Höffe, in: Augustin/Wienand/Winkler (eds.), Religiöser Pluralismus und Toleranz in Europa, pp. 84 – 101. 88 On the human rights debate, among others, Hinkmann, Philosophische Argumente für und wider die Universalität der Menschenrechte; Nunner-Winkler, in: Hoffmann (ed.), Uni86

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text, it is important to which extent cultural argumentation is consistent or whether infringements of rights also violate basic principles of that culture, and the argument thus seems at least inconsistent.89 In addition, it is important whether the country has subjected itself to specific restrictions (in the sense of law as control of culture), for example, by signing human rights treaties.

V. Conclusions Law, and thus criminal law, is bound up within the totality of standardized collective customs, and an interpretive understandings of a nation’s culture. Even though law cannot be equated with culture, but is, unlike cultural habits, explicitly communicated and capable of being asserted with force, its structure and content are dependent on and change as a society’s cultural truths change. This close interconnectedness plays a role at all levels of the legal system – interpretation, practical enforcement, changes in legal policy. This must be taken into account in comparative law studies: in comparative law, in its traditional sense, by disclosing its cultural limits and subjectivity, in culture-based comparative law by a comprehensive comparison that chooses culture as its starting point. Culture-based comparative criminal law consciously assumes the subjectivity of one’s own perceptions. When implemented in practice, it requires disclosure of the objective of the examination – understanding or cognition, approximation, compromise, or legislation. In the culture-based examination of the norms governing the comparative subject matter, such as an examination of language, history, economics, social structures, moral development, etc., emphasis is placed at least as much on the differences as on the similarities. The selection of relevant cultural information is one of the central tasks of the comparative legal scholar. Subsequently, the legal rules and regulations are to be presented and interpreted as part of cultural communication on the subject. Insofar as an evaluation of the rules and regulations – according to criteria adapted to the objective – is planned, this must be carried out in awareness of the relativity of cultural valuations. Bibliography Albert, Michel: Capitalism against Capitalism, London 1993. Ambos, Kai: Internationales Strafrecht: Strafanwendungsrecht, Völkerstrafrecht, Europäisches Strafrecht, 2nd edition, München 2008. Ashcroft, Bill/Griffiths, Gareth/Tiffin, Helen: Post-Colonial Studies, 2nd edition, London 2008. versale Menschenrechte im Widerspruch der Kulturen, pp. 79 – 103. On weak universalism in intercultural understanding Vasilache (supra note 17), p. 118 et seq. 89 On the debate, see the contributions Paul/Robertson-Wensauer (eds.), Traditionelle chinesische Kultur und Menschenrechtsfrage.

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Beale, Sara Sun/Safwat, Adam G.: What Developments in Western Europe Tell Us about American Critiques of Corporate Criminal Liability, Buffalo Criminal Law Review Vol. 8, 2004, pp. 89 – 162. Beck, Susanne (ed.): Politik der Globalisierung, 2nd edition, Frankfurt a. M. 2003. Beck, Susanne: Strafrecht im interkulturellen Dialog, in: Beck, Susanne/Burchard, Christoph/ Fateh-Moghadam, Bijan (eds.), Strafrechtsvergleichung als Problem und Lösung, BadenBaden 2011, pp. 65 – 86. Büngener, Lars: Die Entwicklung der Disclosure of Evidence in internationalen Strafverfahren – Annäherung der Traditionen?, in: Beck, Susanne/Burchard, Christoph/Fateh-Moghadam, Bijan (eds.), Strafrechtsvergleichung als Problem und Lösung, Baden-Baden 2011, pp. 215 – 235. Burghardt, Boris: Die Rechtsvergleichung in der völkerstrafrechtlichen Rechtsprechung, in: Beck, Susanne/Burchard, Christoph/Fateh-Moghadam, Bijan (eds.), Strafrechtsvergleichung als Problem und Lösung, Baden-Baden 2011, pp. 235 – 255. Busche, Hubertus: Was ist Kultur? Die vier historischen Grundbedeutungen, Dialektik – Zeitschrift für Kulturphilosophie 2000, pp. 69 – 90. Cappai, Gabriele: Der interkulturelle Vergleich – Herausforderungen und Strategien einer sozialwissenschaftlichen Methode, in: Renn, Joachim/Srubar, Ilja/Wenzel, Ulrich (eds.), Kulturen vergleichen, Wiesbaden 2005, pp. 48 – 78. Cong, Yali: Doctor-Family-Patient Relationship: The Chinese Paradigm of Informed Consent, Journal of Medicine and Philosophy 2004, pp. 149 – 178. Conrad, Sebastian/Randeria, Shalini (eds.): Jenseits des Eurozentrismus. Postkoloniale Perspektiven in den Geschichts- und Kulturwissenschaften, Frankfurt am Main 2002. Cotterrell, Roger: Comparative Law and Legal Culture, in: Reimann Mathias/Zimmermann, Reinhard (eds.), The Oxford Handbook of Comparative Law, Oxford 2006, pp. 709 – 738. Cotterrell, Roger: The Concept of Legal Cultures, in: Nelken, David (ed.), Comparing Legal Cultures, Aldershot 1997, pp. 13 – 31. Dannecker, Gerhard: Die Dynamik des materiellen Strafrechts unter dem Einfluss europäischer und internationaler Entwicklungen, ZStW Vol. 117, 2005, pp. 697 – 748. Derrida, Jacques: Die Schrift und die Differenz, Frankfurt am Main 1967. Dübber, Markus: Book review: Evans, Richard J., (1996) Rituals of Retribution: Capital Punishment in Germany, 1600 – 1987, New York, Law and History Review Vol. 19, 1996, pp. 449 – 453. Eagleton, Terry: Was ist Kultur?, Munich 2001. Engelmann, Peter: Postmoderne und Dekonstruktion:Texte französischer Philosophen der Gegenwart, Stuttgart 2004. Ewald, William: Comparative Jurisprudence (I): What Was It Like to Try a Rat?, University of Pennsylvania Law Review Vol. 143, 1995, pp. 1889 – 2149. Florida, Robert E.: Buddhist approaches to abortion, Asian Philosophy Vol. 1, 1991, pp. 39 – 50. Frankenberg, Günter: Critical Comparisons: Re-thinking Comparative Law, Harvard International Law Journal Vol. 26, 1985, pp. 411 – 455.

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Frankenberg, Günter: How to Do Projects with Comparative Law, Global Jurist Advances Vol. 6, 2006, pp. 1 – 30. Gadamer, Hans-Georg: Grundzüge einer Theorie der hermeneutischen Erfahrung, in: Gadamer, Hans-Georg, Gesammelte Werke, Bd. 1, Wahrheit und Methode, 6th edition, Tübingen 1990, p. 270 et seq. Geertz, Clifford: Local Knowledge: Fact and Law in Comparative Perspective, in: Geertz, Clifford, Local Knowledge. Further Essays in Interpretative Anthropology, New York 1983, pp. 167 – 234. Geertz, Clifford/Geertz, Hildred: Kinship in Bali, Chicago/London 1975. Gessner, Volkmar: Global Legal Interaction and Legal Cultures, Ratio Juris Vol. 7, 1994, pp. 132 – 145. Göller, Thomas: Sind Kulturen und kulturelle Realitätssichten inkommensurabel?, in: Kaufmann, Matthias (ed.), Wahn und Wirklichkeit – Multiple Realitäten. Der Streit um ein Fundament der Erkenntnis, Frankfurt a. M./Bern/New York/Paris 2003, pp. 269 – 283. Hansen, Klaus P.: Kultur und Kulturwissenschaft, 1st edition, Stuttgart 1995. Hartan, Cora Constanze: Unternehmensstrafrecht in Deutschland und Frankreich, Hamburg 2006. Hauck, Pierre: Funktionen und Grenzen des Einflusses der Strafrechtsvergleichung auf die Strafrechtsharmonisierung in der Europäischen Union, in: Beck, Susanne/Burchard, Christoph/Fateh-Moghadam, Bijan (eds.), Strafrechtsvergleichung als Problem und Lösung, Baden-Baden 2011, pp. 255 – 275. Heger, Martin: Die Europäisierung des Umweltstrafrechts, Tübingen 2009. Heidegger, Martin: Sein und Zeit, 17th edition, Tübingen 1993. Hilgendorf, Eric: Tendenzen und Probleme einer Harmonisierung des Internetstrafrechts auf Europäischer Ebene, in: Schwarzenegger, Christian/Arter, Oliver/Jörg, Florian S. (eds.), Internet-Recht und Strafrecht, Bern 2005, pp. 257 – 298. Hinkmann, Jens: Philosophische Argumente für und wider die Universalität der Menschenrechte, Marburg 1996. Höffe, Otfried: Toleranz in Zeiten interkultureller Konflikte, in: Augustin, Christian/Wienand, Johannes/Winkler, Christiane (eds.), Religiöser Pluralismus und Toleranz in Europa, Wiesbaden 2006, pp. 84 – 101. Höffe, Otfried: Vision Weltrepublik. Eine philosophische Antwort auf die Globalisierung, in: Brugger, Winfried/Neumann, Ulfrid/Kirste, Stephan (eds.), Rechtsphilosophie im 21. Jahrhundert, Frankfurt a. M. 2008, pp. 380 – 396. Hörnle, Tatjana: Unterschiede zwischen Strafverfahrensordnungen und ihre kulturellen Hintergründe, ZStW Vol. 117, 2005, pp. 801 – 838. Jaeger, Friedrich/Liebsch, Burkhard/Rüsen, Jörn/Straub, Jürgen (eds.): Handbuch der Kulturwissenschaften, Bd. 1 – 3, Stuttgart/Weimar 2004. Jayme, Erik: Rechtvergleichung – Ideengeschichte und Grundlagen. Von Emerico Amari zur Postmoderne, Heidelberg 2000.

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Jescheck, Hans-Heinrich: Entwicklung, Aufgaben und Methoden der Strafrechtsvergleichung, Tübingen 1955. Jung, Heike: Grundfragen der Strafrechtsvergleichung, JuS 1998, pp. 1 – 7. Jung, Heike: Recht und kulturelle Identität – Anmerkungen zur Rezeption, Transplantation und Diffusion von Recht, ZStW Vol. 121, 2009, pp. 467 – 500. Kahn, Paul: The Cultural Study of Law, Chicago 1999. Koch, Hans-Georg: Fortpflanzungsmedizin im europäischen Rechtsvergleich, Aus Politik und Zeitgeschichte, B 27/2001, pp. 44 – 52. Kögler, Hans-Herbert: Die Macht des Dialogs. Kritische Hermeneutik nach Gadamer, Foucault und Rorty, Stuttgart 1992. Krygier, Martin: Law as Tradition, Law and Philosophy Vol. 5, 1986, pp. 237 – 262. Legrand, Pierre: European Legal Systems are not Converging, International and Comparative Law Quarterly Vol. 45, 1996, pp. 52 – 81. Legrand, Pierre: How to Compare now?, Legal Studies Vol. 16, 1996, pp. 232 – 242. Leiter, Brian: American Legal Realism, in: Edmundson, William A./Golding, Martin P. (eds.), The Blackwell Guide to Philosophy of Law and Legal Theory, Oxford 2004, pp. 50 – 66. Lord Goff of Chieveley, Robert: The Wilberforce Lecture 1997: The Future of the Common Law, International and Comparative Law Quarterly Vol. 46, 1997, pp. 745 – 760. Losch, Bernhard: Kulturfaktor Recht, Cologne 2006. Lyotard, Jean Francois: Das postmoderne Wissen, Vienna 1999. Marcic, René: Rechtsphilosophie, Freiburg 1969. Markesinis, Basil: Comparative Law in the Courtroom and Classroom, Oxford/Portland 2003. Mattei, Ugo: Comparative Law and Critical Legal Studies, in: Reimann, Mathias/Zimmermann, Reinhard (eds.), The Oxford Handbook of Comparative Law, Oxford 2006, pp. 815 – 836. Michaels, Ralf: The Functional Method of Comparative Law, in: Reimann, Mathias/Zimmermann, Reinhard (eds.), The Oxford Handbook of Comparative Law, Oxford 2006, pp. 339 – 382. Midgley, Juliet: The Role of Legal History, British Journal of Law and Society Vol. 2, 1975, pp. 153 – 165. Müller-Funk, Wolfgang: Kulturtheorie, Tübingen/Basel 2006. Nelken, David: Comparing Legal Cultures, in: Sarat, Austin (ed.), The Blackwell Companion to Law and Society, Malden/Oxford/Carlton 2004, pp. 113 – 127. Nelken, David (ed.): Comparing Legal Cultures, Aldershot 1997. Nietzsche, Friedrich: Basic Writings of Nietzsche, New York 2009. Nietzsche, Friedrich: Zur Genealogie der Moral, III 12, in: Colli, Giorgio (ed.), Sämtliche Werke, Bd. 5, 2nd edition, Munich 1988.

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Nunner-Winkler, Gertrud: Moralischer Universalismus – kultureller Relativismus. Zum Problem der Menschenrechte, in: Hoffmann, J. (ed.), Universale Menschenrechte im Widerspruch der Kulturen, Frankfurt a. M. 1994, pp. 79 – 103. Paul, Gregor/Robertson-Wensauer, Caroline Y. (eds.): Traditionelle chinesische Kultur und Menschenrechtsfrage, 2nd edition, Baden-Baden 1998. Perron, Walter: Sind die nationalen Grenzen des Strafrechts überwindbar? Überlegungen zu den strukturellen Voraussetzungen der Angleichung und Vereinheitlichung unterschiedlicher Strafrechtssysteme, ZStW Vol. 109, 1997, pp. 281 – 301. Peters, Anne/Schwenke, Heiner: Comparative Law beyond Post-Modernism, International and Comparative Law Quarterly Vol. 49, 2000, pp. 800 – 834. Qian, Xu/Tang, Shenglan/Garner, Paul: Unintended pregnancy and induced abortion among unmarried women in China: a systematic review, BMC Health Services Research 2004. Radbruch, Gustav: Rechtsphilosophie, 3rd edition 1932, in: Kaufmann, Arthur (ed.), Gesamtausgabe: Rechtsphilosophie II, Munich 1993. Reimann, Mathias/Zimmermann, Reinhard (eds.): The Oxford Handbook of Comparative Law, Oxford 2008. Richers, Dominik: Postmoderne Theorien in der Rechtsvergleichung, ZaöRV Vol. 67, 2007, pp. 509 – 540. Roxin, Claus: Strafrecht AT, 4th edition, Munich 2006. Sarat, Austin/Kearns, Thomas R. (eds.): Law in the Domains of Culture, 5th edition, Michigan 2003. Satzger, Helmut: Internationales und Europäisches Strafrecht, 3rd edition, Baden-Baden 2009. Sieber, Ulrich: Strafrechtsvergleichung im Wandel, in: Sieber, Ulrich/Albrecht, Hans-Jörg (eds.), Strafrecht und Kriminologie unter einem Dach, Berlin 2006, pp. 78 – 130. Stessens, Guy: Corporate Criminal Liability: A Comparative Perspective, International and Comparative Law Quarterly Vol. 43, 1994, pp. 493 – 520. Sukopp, Thomas: Wider den radikalen Kulturrelativismus, Aufklärung und Kritik 2005, pp. 136 – 154. Tai, Michael Cheng-tek/Tsai, Tsungo-po: Who Makes the Decision? Patient’s Autonomy vs Paternalism in a Confucian Society, Croatian Medical Journal Vol. 44, 2003, pp. 558 – 561. Tiedemann, Klaus: Wirtschaftsstrafrecht AT, 2nd edition, Cologne/Munich 2007. Triandis, Harry C.: The self and social behavior in differing cultural contexts, Psychological Review Vol. 96, 1989, pp. 506 – 520. Triandis, Harry C./Suh, Eunkook M.: Cultural Influences on Personality, Annual Review of Psychology Vol. 53, 2002, pp 133 – 160. Vasilache, Andreas: Interkulturelles Verstehen nach Gadamer und Foucault, Frankfurt a. M. 2003. Waldenfels, Bernhard: Grundmotive einer Phänomenologie des Fremden, Frankfurt a. M. 2006. Winckler, Edwin A.: Chinese Reproductive Policy at the Turn of the Millennium: Dynamic Stability, Population and Development Review Vol. 28, 2002, pp. 379 – 418.

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Wittgenstein, Ludwig: Philosophische Untersuchungen, Werkausgabe Bd. 1, Frankfurt a. M. 1995. Zumbansen, Peer: Comparative Law’s Coming of Age?, German Law Journal Vol. 6, 2005, pp. 1073 – 1084 Zweigert, Konrad/Kötz, Hein: Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts, 3rd edition, Tübingen 1996.

On the Elements of the Offence of Homicide with Intention to Facilitate the Commission of Another Offence or Escape Justice, According to Section 301 A(a)(2) of the Israeli Penal Code (Amendment 137, 2019) By Mordechai Kremnitzer and Khalid Ghanayim*

I. Preface Amendment 137 to the Penal Code1 was passed on January 2019, and entered effect on July 2019.2 This was a comprehensive reform of the offences of homicide,3 with the amendment thought to be “one of the most important ever legislated […] in the Parliament.”4 This amendment was necessary because the homicide chapter of the Penal Code, 1977 stemmed from the British mandatory legal system and was also influenced by the Ottoman legal system (itself influenced by the French system (1810)) and was, therefore, outdated.5 It was agreed among the legislative, executive and judicial branches of government, as well as the legal academia, that a comprehensive reform was necessary to redefine the offences of homicide.6 In this article, we

* Prof. em. Dr. Mordechai Kremnitzer is a Professor emeritus and former Dean, the Faculty of Law Hebrew University of Jerusalem; President of the Israel Press Council; Member of several government committees; deputy president of the “Israel Democratic Institute”; Prof. Dr. Khalid Ghanayim is a Professor at the Faculty of Law University of Haifa, Board member of the Haifa Centre for German and European Studies (HCGES) University of Haifa. 1 Penal Code (Amendment 137), gazette 2779. 2 That being said, the Amendment sets out in Section 25 that Section 5 of the Penal Code is applicable, so that the leniencies of the Amendment entered into effect immediately upon their publication, i. e., on January 2019. 3 It remains far from perfect, since only a part of the proposed reform was enacted. 4 Per MK Miki Rosenthal, from session protocol 396 of the 20th Parliament, pp. 112 – 115 (1. 1. 2019); similar thoughts were expressed by many Parliament members, see ibid., pp. 106 – 116. 5 See Criminal Appeal 125/50 Yakobovich v Attorney General, HCP 6 514 (1952); Enker, 1 Mehkarei Mishpat (1980), p. 1 et seq.; Shahar, 2 Mehkarei Mishpat (1982), pp. 211 – 218. 6 Criminal Appeal 4711/03 Abu Zayid v State of Israel, paras. 42, 43 of Justice Beinish’s verdict (Nevo, 15. 1. 2009); Criminal Appeal 1042/04 David Biton v State of Israel, para. 68 of President Barak’s verdict (Nevo, 27. 11. 2006); Ministry of Justice, Committee for Examining

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will present the development of one of the 11 aggravating circumstances that comprise the offence of aggravated murder: homicide with intention to enable or facilitate the commission of, conceal it, or escape justice for another offence. We will present the changes that were made to the definition of this offence, which include three characteristics: the essence of mens rea required in both ordinary and aggravated murder; the connection between the homicide and the other offence; and the severity of the other offence. We will compare the law as it applied prior to Amendment 137 to the law as it stands thereafter.

II. Background of Amendment 137 and the Various Approaches of the Case-Law, Academia and the Legislator 1. Penal Code, 1977 (Prior to the Amendment) The Penal Code, 1977, prior to Amendment 137, defined the offences of manslaughter as the basic homicide offence, and murder as the aggravated homicide offence, whereby: 298. Manslaughter “A person caused the death of another by a prohibited act or omission, is guilty of manslaughter and is liable to twenty years imprisonment.” 300. Murder “A person did one of the following, shall be accused of murder and is liable to life imprisonment, and only to that penalty: […] (3) while committing an offense, while preparing to commit it or in order to facilitate its commission, he maliciously caused the death of a person; (4) he caused the death of a person when another offense had been committed, in order to assure the flight of himself or of a person who participated in the commission of that offense, or in order to escape punishment.”

The courts were aware to the problematic nature of the definition of murder in its previous formulation, and periodically levied criticism at the law, including suggesting that it be interpreted narrowly. The courts also discussed the aggravated variation of murder involving its commission to enable or facilitate another offence, or escape justice, determining that its interpretation must necessarily consider the underlying principles behind it.

the Elements of the Offences of Homicide (2011); Draft Bill of Penal Code (Amendment 124) (Offences of Homicide), 2015, Draft Bills 972, 166.

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These principles were spelled out by Justice Barak-Erez in the Tamtawi case: “[These are] intended to reflect the widely-regarded severity of the disregard for human life shown by the criminal who willfully chooses to endanger a life, despite not necessarily having an interest in a fatal outcome, simply to escape punishment (Section 300(a)(4)) or to complete the offence they had initially set out to commit (Section 300(a)(3)). These sections are intended not only to express the public’s horror at the criminal’s willingness to endanger human life for other purposes, but rather – and more to the point – to deter criminals from undertaking such risks, by instilling the knowledge that the consequence of a fatal outcome in such circumstances would be the ultimate punishment – life in prison.”7

Similarly, in the Abu Zayid case, Justice Beinish determined with regard to the underlying principles behind Sections 300(a)(3) – (4) that: “This section emphasizes the commission of another offence; thus, its intent is to deter criminals from committing offences in a manner that endangers human life. In other words, the section’s intent is not to deter the criminal from committing the other offence (for which purpose it would have sufficed to enhance the punishment for that offence), but rather, to deter the criminal already committing another offence from endangering lives, or to encourage them to protect the lives of the victims of said offence … the purpose of Sections 300(a)(3) – (4) is, thus, to deter one who commits an offence from endangering lives in order to escape the scene of said, or to escape punishment.”8

According to this approach, the principle underpinning the elements of aggravated homicide per Sections 300(a)(3) – (4) of the former law is mainly deterrence. In contrast, Justice Amit states in the Fidinian case that: “The idea behind this section is that there is particular severity in a person knowingly preferring the commission of this another offence over the life that they took in the course of its commission.”9

That means, the aggravating circumstance reflects the enhanced culpability associated with the offence. We support this position of Justice Amit. The main rationale behind the aggravating circumstance is neither individual nor general deterrence, but rather, the depravity of the act itself, and the enhanced culpability of the perpetrator. At the same time, there is also room to consider additional sentencing factors, provided that this consideration does not result in surpassing just desert. Another factor is the enhanced wrongfulness inherent in this behavior, as evidenced by the public anxiety that such acts give rise to. 7 Criminal Appeal 6026/11 Tamtawi v State of Israel, para. 66 of Justice Barak-Erez’s verdict (Nevo, 24. 8. 2015). 8 Criminal Appeal 4711/03 Abu Zayid v State of Israel, paras. 28, 40 of Justice Beinish’s verdict (Nevo, 15. 1. 2009). 9 Criminal Appeal 9256/11 Fidinian v State of Israel, para. 21 of Justice Amit’s verdict (Nevo, 23. 9. 2014). This is also the position of Justice Or – see Criminal Appeal 60/81 Gur v State of Israel, HCP 36(4) 516 (1982).

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As for the mens rea required for murder as an element of aggravated homicide offence per Section 300, the Supreme Court criticized the language of this section in the Tamtawi case. In this case, after stealing electric cables and destroying an electrical installation, the defendant, while in transit, spotted a police officer standing in the middle of the road and signaling him to pull over for inspection. The defendant continued driving, striking down the officer and killing him. Justice Barak-Erez was called upon to interpret the offence of murder under Sections 300(a)(3) – (4) of the former law. Per the language of the law, ordinary mens rea or “maliciously” – i. e., intention, indifference and rashness – would suffice.10 However, Justice Barak-Erez ruled that: “An act undertaken with rashness is, obviously, less severe, relatively speaking, than an act undertaken with indifference, and is more similar to negligence, despite being distinct from this as well.”11

The Court holds, therefore, that the mens rea required for this form of aggravated homicide, is intention or indifference. Mere rashness is insufficient to meet the level of severity required for a conviction of this offence. We concur with this position. There is a clear proximity of indifference to intention, and, at the same time, there is a clear distance between it and rashness. The indifferent actor does not even prefer the non-occurrence of the fatal outcome over its occurrence, and acts with utter indifference towards human life. The indifferent killer fully chooses his course of action and the fatal result stemming from it. Conversely, rashness entails the assumption of an unreasonable risk, based on the hope, or even the belief – i. e., wish and even will that such an outcome would not occur. The rash offender has not made a decision to harm the protected value, nor does he display outright contempt or a manifest negative attitude toward the protected value. This type of mental element is more similar to negligence, as both cases are characterized as an error caused by being incautious and failing to demonstrate adequate foresight as to the real nature of the risk. The connection between the other offence and the homicide is discussed in Abu Zayid case, in which the defendant was stopped by police for a routine document inspection. When the police noticed a suspected object in the defendant’s belt and attempted to grab it, the defendant drew a pistol, he carried unlawfully, and shot the 10

According to Section 20 of the Penal Code: a) Mens rea means awareness of the nature of the act, of the existence of the circumstances and of the possibility of the consequences of the act being brought about, such nature, circumstances and consequences being ingredients of the offence, and as regards the consequences, means also one of the following: (1) “intention” to bring about the consequences. (2) “Recklessness,” being one of: (i) “indifference” to the possibility of bringing about the consequences; (ii) “rashness” – assumption of an unreasonable risk as to the possibility of bringing about the consequences hoping that it will be possible to prevent them. 11 Criminal Appeal 6026/11 Tamtawi v State of Israel, para. 31 of Justice Barak-Erez’s ruling (Nevo, 24. 8. 2015).

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officer, killing him. This case involves both homicide in the commission of the other offence (unlawful possession of a firearm), and homicide to facilitate the defendant’s escape from facing justice for the offence of unlawful possession. President Beinish criticized the language of the law, requiring only a connection in temporal proximity between the homicide and the other offence. She demanded instead a material connection between the two. In her words: “A narrow, literal interpretation of the word “whilst,” which entirely waives the requirement for a causal connection between the act of causing death and the other offence, is bound to excessively broaden the application of the offence of murder […] conversely, a coherent interpretation of the options included in this statute,12 one that duly accounts for their purpose, leads to the conclusion that, for each of these contingencies, a connection of mere concurrence is not sufficient, and we must require, at the least, a causal link between the other offence and that which causes the death […] To apply this statute […] without requiring a causal connection between the act of homicide and the achievement of the other offence would result in nearly every occurrence of homicide involving a melee weapon or firearm constituting murder (except cases in which the weapon is legally possessed).”13

As to the essence of the other offence, it can be said that, by the letter of the law, this can consist of any offence, even a misdemeanor.14 However, in Abu Zayid case, President Beinish discusses the possibility of limiting this to only “severe crimes, of a nature the inherently poses a risk to human life,” in consideration of the severe consequences of a murder conviction (both in terms of the unique stigma that accompanies such a conviction, and the mandatory sentence of life in prison). Yet she made no ruling on the subject of the other offence, since, in that particular case, no such ruling was required.15 A clear position was expressed in the Tamtawi case, where it was ruled that: “The cloud of doubt that shrouds the boundaries of the offence in question exposes the underlying tension between two factors – the legitimate purpose of the stringency shown towards those who cause the death of innocent persons in their efforts to escape justice, on the one hand; and the concern that this will lead to the imposition of the stigma of a “murderer” – and the life sentence it entails – on a person who committed a crime of a lesser degree, on the

12 The offence of murder includes 4 cases, one of which is homicide with premeditation. The other three alternatives are patricide and matricide; homicide whilst in the commission of or preparation to commit another offence, or to facilitate another offence; and homicide pursuant to the commission of another offence, in order to ensure their own flight and escape from justice or that of an accomplice to the same offence. 13 See Criminal Appeal 4711/03 Abu Zayid v State of Israel, paras. 42, 43 of President Beinish’s verdict (Nevo, 15. 1. 2009). 14 A misdemeanor, as defined in Section 24 of the Penal Code, means “an offence to which a penalty of imprisonment for a term not exceeding three months or, if the penalty is a fine, a fine not exceeding the amount capable of being levied for an offence whose penalty is a fine of undetermined amount, is assigned.” 15 See Criminal Appeal 4711/03 Abu Zayid v State of Israel, paras. 31 – 39 of Justice Beinish’s verdict (Nevo, 15. 1. 2009).

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other hand …16 The literal interpretation of Section 300(a)(4) of the Penal Code yields a result that seems counterintuitive to our ideas of justice, and, presently, to the constitutional values of our justice system as well.”17

The court relied mainly on the legal situations in England and France, determining that: “In the vast majority of legal systems we reviewed – and certainly those that influenced the formation of Israeli legislation on this subject [i. e. the English and French legal systems, as the two ‘parents,’ as it were, of Sections 300(a)(3) – (4)] – even when such a rule exists, that would ‘upgrade’ the offence of homicide to one of murder when committed in concurrence with another offence or in order to escape justice, this was limited to cases of relatively extreme violence, and not applied indiscriminately to all offences.”18

Based on these considerations, it was held that: “The ‘other offence’ under Section 300(a)(4) must be a felony associated with particular severity, such as robbery or aggravated assault; it is doubtful if the destruction of an electrical installation – while this may be a felony – is suitable to serve as the ‘other offence’ for the purposes of Section 300(a)(4).”19

This narrow interpretation adopted by the court is expressed in the requirement that the other offence involve an element of violence or inherent risk to human life.20 The court found further support for this approach in the position of Prof. Enker,21 who proposed limiting the scope of Section 300(a)(3) to aggravated violent offence such as robbery, rape and arson.22 Justice Rubinstein suggested that the offence of drug trafficking should also be counted among these.23 We believe that the other offence can, in fact, be any offence, even a misdemeanor. The added severity, as stated above, stems from the objective of the perpetrator to 16 Criminal Appeal 6026/11 Tamtawi v State of Israel, para. 42 of Justice Barak-Erez’s verdict (Nevo, 24. 8. 2015). 17 Criminal Appeal 6026/11 Tamtawi v State of Israel, para. 49 of Justice Barak-Erez’s verdict (Nevo, 24. 8. 2015). 18 Criminal Appeal 6026/11 Tamtawi v State of Israel, para. 64 of Justice Barak-Erez’s verdict (Nevo, 24. 8. 2015). 19 See Severe Criminal Case (Beer Sheva District) 1057/08 State of Israel v Tamtawi (Nevo, 9. 3. 2011), pp. 51 – 57. 20 Even earlier case-law required an offence with the potential to endanger life; see Criminal Appeal 125/50 Yakobovich v Attorney General, HCP 6 514 (1952). 21 Enker, 1 Mehkarei Mishpat (1980), pp. 28 – 39. 22 Criminal Appeal 6026/11 Tamtawi v State of Israel, para. 69 of Justice Barak-Erez’s ruling (Nevo, 24. 8. 2015). It can be said that, in fact, the case-law has only convicted under this statute in cases where the additional offence contained the potential to endanger life. See Criminal Appeal 60/81 Gur v State of Israel, HCP 36(4) 505, 520 (1982); Criminal Appeal 960/09 Avni v State of Israel (Nevo, 29. 7. 2010). 23 Criminal Appeal 6026/11 Tamtawi v State of Israel, para. 2 of Vice President Rubinstein’s ruling (Nevo, 24. 8. 2015).

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further the commission of another offence, or to prevent justice from being done – goals that are illicit and illegitimate in and of themselves. The disproportion between the means of homicide and the illicit objective of the perpetrator is massive, and bears witness to the perpetrator’s extreme disregard towards the value of human life. This being the case, the lesser the degree of the other offence, the greater is the disproportion, which in turn increases the level of the perpetrator’s contempt towards human life. Moreover, this kind of homicide shows a complete absence of moral inhibitions on the part of the killer, who is prepared to “walk on corpses” to achieve even an insignificant illicit goal. Furthermore, Israeli court was “forced” to narrow the wide and unjustified scope of the offence of murder, inter alia, by requiring that the other offence be a serious one, because Israeli law on murder, based on French and English law, was satisfied with only a temporary connection between homicide and the other offence. But, when the definition of the offence of aggravated murder expresses the desired law, so the homicide was intended to enable or facilitate the commission of another offence, or to escape punishment – there is no need nor justification for the requirement that the other offence be a serious one. 2. Private and Government Draft Bills As a response to calls for reform, on May 14, 2007, the (then) Minister of Justice Prof. Daniel Friedman appointed the “Committee to Examine the Elements of Homicide Offences,”24 comprised of experts from the Ministry of Justice’s department of consultation and legislation, the state prosecutor’s office, the public defense’s office, and the academia.25 The committee submitted its proposed reform in August, 2011.26

III. Proposal of the Committee to Examine the Elements of Homicide Offences (2011) Per the proposal, the offence of murder – as a basic homicide offence carrying a maximum sentence of life imprisonment and the “aggravated murder” carrying a mandatory life imprisonment – are as follows:27 300. Murder “A person who, intentionally or by way of indifference, causes the death of another person, shall be sentenced to life in prison.” 24

Meeting Protocol 396 of the 20th Parliament, 109 (1. 1. 2019). One of the authors of this paper (Kremnizer) was the chairperson of the committee. 26 The Committee to Examine the Elements of the Offences of Homicide (2011), fs.Parliament.gov.il/%5C20%5CCommittees%5C20_cs_bg_345419.pdf. (accessed at: 12. 4. 2023). 27 MK Michael Rosenthal submitted his own private draft bill based entirely on the committee’s proposal; see Draft Bill: Penal Code (Amendment – Offences of Homicide and Negligence), 2015, P/20/2321. 25

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301. Aggravated Murder “A person who violates Section 300 under one of the below listed circumstances shall be guilty of aggravated murder, unless the court finds, owing to special considerations to be specified, that special circumstances existed, as a result of which the offence did not demonstrate a particularly high degree of culpability: […] (2) The act was committed with intent to enable or facilitate the commission of another crime, or with intent to conceal the commission of another crime, or to escape justice for the commission of another offence.”

Accordingly, the committee proposed requiring the mens rea of either intention or indifference for both ordinary murder and aggravated murder. As for what constitutes “aggravating” circumstances, the mere concurrence of the homicide with the commission of another offence is no longer sufficient, but rather, a material connection between them is required – i. e., that the homicide is committed with intention to enable or facilitate the commission of another offence, or with intention to escape or undermine justice for the commission of another offence. The committee addressed the nature of the other offence, noting that: “The committee members hesitated whether it would be appropriate to reduce the scope of the aggravating circumstances by determining what sort of offences should suffice to upgrade the offence of murder to one of aggravated murder, or to allow the statute to continue to apply to any offence. One approach discussed would be to apply the aggravating circumstance only to serious felonies. On the other hand, if the rationale for increasing the severity of the offence is to deter the perpetrator of a crime, who is at risk of discovery, from escalating the situation by committing homicide, then it makes sense to apply this aggravating circumstance to all potential offences without distinction. Indeed, when the homicide is perpetrated in order to facilitate a relatively minor offence, this only further illustrates the extent of the criminal’s callous disregard in pursuit of their ends. Ultimately, we adopted the second approach unanimously.”28

IV. Proposal of the Chairman of the Constitution, Law and Justice Committee of the Parliament – MK Nisan Slomiansky Several private draft bills have been tabled by the Parliament plenum to reform the offences of homicide. The first of these was the draft bill of the Chairman of the Constitution, Law and Justice Committee, MK Nisan Slomiansky.29 Per this proposal, homicide with intention would constitute aggravated murder in the first degree, 28 The Committee to Examine the Elements of the Offences of Homicide, supra note 26, p. 10. 29 See Draft Bill: Penal Code (Amendment – Murder), 2015, P/20/1499.

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and carry a mandatory life sentence; whereas homicide committed with indifference or rashness would constitute aggravated murder in the second degree, with life in prison as the maximum sentence.30 This includes: “(3) A person who causes the death of another person while committing an offence, or while preparing to commit an offence, or in order to facilitate the commission of an offence; (4) A person who causes the death of another person after having committed another offence, in order to ensure that they or an accomplice to another offence may flee or escape justice.”

This proposal is similar to the former law in its content, but differs in that it imposes the life sentence as a maximum sentence, rather than a mandatory sentence. It was explained that: “This change was made based on the perspective that the culpability of a person who kills without specific fatal intention cannot be compared to that of a person who kills with intention. Of course, one who kills while committing another offence or while fleeing the scene should be harshly punished. However, the considerations for imposing such stringency should rest with the court, and not be dictated by the law. At the least, this should not constitute first-degree murder.”31

Thus, the aggravating circumstances are effectively considerations for harsher sentencing under the statute of murder in the second degree. Like the former law, this includes any offence, including misdemeanors, as the other offence; and requires a material connection between the other offence and the homicide only in some cases, while accepting concurrence as sufficient in others.

V. Proposal of Prof. Miriam Gur-Arye Prof. Gur-Arye proposed a different division of the homicide offences. Under her model, homicide with intention is murder, carrying a maximum sentence of life in prison, whereas homicide by indifference or rashness (recklessness) is manslaughter, carrying a sentence of 20 years. In addition, per this approach, homicide committed with indifference or rashness (i. e., manslaughter) that is carried out incidentally to (i. e., with a factual causal link to) another offence constitutes murder with the maximum sentence of life imprisonment, if the other separate offence (different from the act of killing) is an offence against the body. Murder, i. e. homicide by intention, which committed in aggravated circumstances, and homicide by premeditation, is murder in aggravated circumstances with mandatory life imprisonment.32

30 A homicide committed with indifference or rashness with no aggravating circumstances, is manslaughter, which carries a 20-year maximum sentence. 31 Draft Bill: Penal Code (Amendment – Murder), 2015, P/20/1499 in the comments on Section 300(a1). 32 Gur-Arye, Law and Justice, para. 3b (27. 6. 2017) (the authors possess a copy); Gur-Arye, Mishpatim Online 5(1) (2013).

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VI. Government Draft Bill (124) Following the submission of the Proposal of the Committee to Examine the Elements of Homicide Offences to the Ministry of Justice in August, 2011, the government formulated the Draft Bill Penal Code (Amendment 124) (Offences of Homicide) 2015. Under this draft bill, the offence of murder – as a basic homicide offence carrying a maximum sentence of life imprisonment and the “aggravated murder” carrying a mandatory life imprisonment – are as follows:33 300 Murder “A person who causes the death of another person with intention or indifference shall be liable to life in prison.” 301A. Aggravated Murder “(a) A person who causes the death of another person with intention or indifference under one of the circumstances listed below shall be liable to a mandatory sentence of life in prison: […] (2) The act was committed with intent to enable or facilitate the commission of another offence, or with intent to conceal the commission of another offence, or to allow the perpetrator of another offence to escape justice.”

Under this draft bill, the offences of murder, both as a basic homicide offence and under aggravating circumstance, require the mens rea of intention or indifference. Furthermore, and to our point, a material connection is required between the homicide and the commission of the other offence, which nonetheless may include misdemeanors.34 In all the deliberations of the Parliament Committee of Constitution, Law and Justice, there was a consensus that such a material connection must exist. There was some debate as to the nature of the mens rea that ought to be required for murder as a basic offence of homicide and for the aggravated murder. Ultimately, it was decided to adopt the language requiring either intention or indifference for both cases. As for the matter of the “other offence”, there were also disagreements over the nature of the other offence that should suffice – whether any offence should serve this purpose, or only offences with certain attributes, such as offences involving endangerment to life or body.35 This debate found expression in the draft bill proposal submitted on November 25, 2018, by the legal counsel of the Committee of Constitution, Law and Justice. In this version, the relevant clause read as follows: 33 MK Michael Rosenthal submitted his own private draft bill based entirely on the committee’s proposal; see Draft Bill: Penal Code (Amendment – Offences of Homicide and Negligence), 2015, P/20/2321. 34 See Draft Bill Penal Code (Amendment 124) (Offences of Homicide) 2015, Government Draft Bills 166, pp. 170 – 171. 35 See meeting protocol 505 of the Committee of Constitution, Law and Justice, the 20th Parliament, pp. 40 – 44 (12. 12. 2017).

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“(2) The act was committed with intent to enable or facilitate the commission of another offence, or with intent to conceal the commission of another offence, or to allow the perpetrator of another offence to escape justice; in this regard, ‘another offence’ shall mean an offence carrying a sentence of 5/7 years’ imprisonment or more.”

The documents submitted by the legal counsel of the Committee of Constitution, Law and Justice included reference to both Abu Zayid and Tamtawi cases, which address the matter of the nature of the other offence.

VII. Amendment 137 to the Penal Code (2019) As mentioned above, in January 2019, Amendment 137 to the Penal Code was passed, comprising a comprehensive reform of the offences of homicide. Per this amendment, the offence of murder – as a basic homicide offence carrying a maximum sentence of life imprisonment, and the “aggravated murder” carrying a mandatory life imprisonment – are as follows: 300. Murder “A person who causes the death of another person with intention or indifference shall be liable to life in prison.” 301A. Aggravated Murder “(a) A person who causes the death of another person with intention or indifference under one of the circumstances listed below shall be liable to a mandatory sentence of life in prison: … “(2) The act was committed with intent to enable or facilitate the commission of another offence, or with intent to conceal the commission of another offence, or to allow the perpetrator of another offence to escape justice; in this regard, ‘another offence’ shall mean an offence carrying a sentence of 7 years’ imprisonment or more.”

Amendment 137’s definition of the offences of murder as a basic offence of homicide, and aggravated murder as an enhanced offence of homicide is identical to Government Draft Bill 124, except that the requirement for the other offence was narrowed to offences carrying 7 years’ imprisonment or more. As such, it can be said that there are three differences between the offences of homicide under Amendment 137 (2019) and the law that existed prior to its introduction that are relevant to our thesis: 1. Under the new law, the offences of murder and aggravated murder require a mens rea of intention or indifference, whereas under the former statute of murder, in addition to premeditated murder, all forms of mens rea were sufficient, including rashness.36 Under Section 301C of the new law, homicide with rashness comprises an 36 For more on the narrow interpretation given in the case-law to this mens rea, see infra, alongside supra note 11.

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independent offence carrying a 12-year prison sentence.37 Under the former law, the punishment for murder was a mandatory life sentence, whereas under the new law, this requirement may be waived under exceptional circumstances. 2. The new law requires a material link between the homicide and the other offence, i. e., that the act was committed with intention to enable or facilitate the commission of another offence, or with intent to conceal the commission of another offence, or to allow the perpetrator of another offence to escape justice. The former law also required such a connection with respect to facilitating the commission of another offence or escaping justice for same; however, a temporal coincidence between the homicide and the commission of or preparation for another offence was sufficient. The homicide only needed to occur “whilst in the commission of or preparation to commit another offence.” In this respect, the scope of the offence of aggravated murder has been narrowed under the new law. 3. The new law requires the other offence to be a felony carrying a prison sentence of at least 7 years’ imprisonment, while the language of the former law permitted any offence, even a misdemeanor, to be relevant. In this sense, as well, the scope of the statute has been narrowed compared to the former law.

VIII. Conclusion With Amendment 137, the legislator enacted an encompassing reform of the offences of homicide, which has significantly improved the law’s distinction between the various forms of homicide and its definitions of these offences and their formative elements. The mens rea of indifference is very close to that of intention. The culpability and wrongfulness associated with the mental states of intention and indifference have been, therefore, differentiated from that of rashness. Accordingly, the mens rea required for murder and aggravated murder is now intention or indifference, while homicide with rashness has been downgraded to a much lighter sentence – 12 years imprisonments. A material connection is now required between the homicide and the commission of the other offence or attempt to escape justice. However, we find the decision to restrict the other offence to felonies carrying a prison sentence of 7 years or more to be inappropriate. The Israeli courts rested on French and English laws on this subject, which are hundreds of years old and problematic in this regard since they require only a temporary connection between homicide and the other offence; the courts were forced to narrow the wide and unjust scope of the offence, by requiring a serios offence. When the existing law requires a material connection between homicide and the other offence, and the existing law expresses the desired law in this regard, there is no justification for the requirement of a serious offence. Furthermore, when homicide as a means was caused in order to facilitate the commission 37 Under the former law, homicide with rashness felled within the offence of manslaughter, with the maximum sentence of 20 years imprisonment.

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of minor offence or escape punishment for minor offence – as the object of the act, the disproportion between the means of homicide and the illicit objective of the perpetrator is massive, this bears extreme disregard of the perpetrator towards the value of human life. The lesser the degree of the other offence, the greater is the disproportion, which in turn increases the level of the perpetrator’s contempt towards human life. Moreover, this kind of homicide shows a complete absence of moral inhibitions on the part of the killer, who is prepared to “walk on corpses” to achieve even an insignificant illicit goal. Had the court conducted a more extensive comparative study on the subject, we believe that it would have reached the better conclusion of including all offences in this aggravated case of murder. The position that any criminal offence, including misdemeanors, is sufficient, is the prevailing position in most modern legal systems, such as sec. 211 of the German Penal Code,38 sec. 112 of the Swiss Penal Code,39 sec. 132 of the Portuguese Penal Code, sec. 288 of the Dutch Penal Code, sec. 111 of the Croatian Penal Code, sec. 140 of the Czech Penal Code, sec. 99 of the Kazakhstan Penal Code, sec. 97 of the Kyrgyzstan Penal Code, sec. 117 of the Latvian Penal Code, sec. 145 of the Moldova Penal Code, sec. 189 of the Romanian Penal Code, sec. 105 of the Russian Penal Code, sec. 114 of the Serbian Penal Code, sec. 116 of the Slovenian Penal Code, sec. 82 of the Turkish Penal Code, sec. 115 of the Ukrainian Penal Code, sec. 77 of the Albanian Penal Code, sec. 105 of the Armenian Penal Code, sec. 120 of the Azerbaijan Penal Code, sec. 149 of the Bosnia & Herzegovina Penal Code, sec. 116 of the Bulgarian Penal Code, and sec. 129 of the Lithuanian Penal Code. Bibliography Enker, Arnold: Murder Whilst Committing an Offence: The Relationship Between the other Offence and the Homicide Offence, 1 Mehkarei Mishpat, 1980 p. 1 et seq. Gur-Arye, Miriam: An Alternative Proposal for Restructuring the Offences of Homicide, Submitted to the Committee of Constitution, Law and Justice, para. 3b (27. 6. 2017). Gur-Arye, Miriam: The Proposed Reform of the Offences of Homicide in Israeli Law in Light of the Principle of Guilt, 5(1) Mishpatim Online, 2013. Jähnke, Burkhard/Laufhütte, Heinrich W./Odersky, Walter (eds.): StGB. Leipziger Kommentar, Großkommentar, 11th edition, 44. delivery, Berlin/Leipzig 2002. 38 According to German law, when the homicide was done to enable or facilitate the commission of an administrative offence, or escape punishment, it is a particularly vile homicide (niedrig), which is murder as aggravated homicide; see Jähnke, in: Jähnke/Laufhütte/ Odersky (eds.), StGB. Leipziger Kommentar, § 211 paras. 9, 29. On the addition of the administrative offence alongside the criminal offencer, see Schroeder, JuS 1984, p. 275. 39 Sec. 112 of the Swiss Penal Code adopts a model of aggravation by virtue of the general element of the homicide that is unrestrained and lacking a special conscience (besonders skrupellos), where the homicide that was done to enable or facilitate the commission of any criminal offence falls within the scope of the aggravation; see Trechsel, Schweizerisches Strafgesetzbuch, Art. 112 paras. 19, 22.

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Schroeder, Friedrich-Christian: Grundgedanken der Mordmerkmale, JuS 1984, pp. 275 – 278. Shahar, Yoram: The Legislator’s Intent in Prior Intent, 2 Mehkarei Mishpat, 1982, pp. 204 – 218. Trechsel, Stephan: Schweizerisches Strafgesetzbuch. Kurzkommentar, Zurich 1992.

Legal Realism and Forensics: Why the Legal System Won’t Go All the Way in Limiting Forensic Evidence to its Actual Capacity By Anat Meyassed Cnaan and Talia Eva Goldshtain*

I. Introduction1 The progress and development of science over the years has had significant implications for the legal system, giving rise to interesting and complicated questions to be dealt with. As will be shown, such was the case with DNA evidence that came into use towards the end of the 20th century. It enabled the exposure of many past wrongful convictions (“DNA exonerations”). It also facilitated the exposure of factors that contributed to wrongful convictions in the first place; among those, forensic evidence that was false or misleading was found to be one of the main causes of wrongful convictions. This demonstrated the great potential of forensic evidence in helping to uncover the truth, but also the caution that needs to be taken in addressing such evidence, as it can also lead to wrongful convictions. In this article, we wish to address the need for the criminal justice system to develop in parallel with science and in strong connection to it. We point to a gap that exists between the flaws that have been found in the reliability of forensic evidence, and the way courts actually accept and give weight to those forensic methods as if they were reliable. We then propose several explanations, based on legal realism, as to the reasons this gap exists and why the legal system won’t go all the way in limiting forensic evidence to its actual capacity.

* Anat Meyassed Cnaan is an Israel Chief Public Defender and founder of the forensic forum in the Israeli Public Defense. Talia Eva Goldshtain is a lawyer at the Israeli Public Defense. 1 We wish to thank Dr. Jeff Adams, Home Office Science, UK and Sarah Chu, Tania Brief and Julia Boland from the Innocence Project, US – for their help in reference to relevant materials. We would also thank Dr. Elkana Laist for the helpful comments and Sapir Negrea for her assistance. The responsibility for the article and its content is ours alone. We are available for any comment and question by email [email protected].

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In section II., we describe the disillusionment process that occurred in the forensic field through the exposure of cases of wrongful convictions that were based on misleading forensic evidence, or through focusing research and reports published in the past two decades on the limitations of forensic evidence methods. We also note the increasing interest of the public in criminal justice and forensic evidence, and the rise of discussion of those subjects in the media, together with the growing accessibility of knowledge in forensics. Next, we describe the development of the forensic field in Israel. The highlight of which is the Committee on Prevention and Correction of Wrongful Convictions, chaired by retired Supreme Court Justice Prof. Yoram Danziger (The Danziger Committee), and a report published by that committee on the issue of forensic evidence. Subsequently, we argue that despite the findings as to the limitations of forensic evidence, and the disillusionment from past belief in its infallibility, the courts do not actually give sufficient implication to the limitations of forensic evidence in their judgments. In V., we suggest four categories of propositions using the legal realism viewpoint, that can possibly explain the gap mentioned between the limitations of forensic methods and the way they are accepted by the courts. Lastly, we submit that establishing a forensic science regulator and promoting forensic evidence training (in line with the recommendations of the Danzinger Committee) can provide an answer to the difficulties that we have pointed out. Moreover, we suggest that leaving the gap undealt with will take it’s toll on the public’s trust in the legal system.

II. Disillusionment About the Absolute Reliability of Forensic Evidence The field of forensic evidence has undergone development and disillusionment in recent decades all around the world. Studies in the last decades have revealed that flaws and misapplications of science are a major cause of false convictions.2 Furthermore, as we will discuss below, fo2

A study from England and Wales in 2017 found misleading forensic evidence in 32 % of cases examined in the study that was successfully appealed. See Smit/Morgan/Lagnado, A systematic analysis of misleading evidence in unsafe rulings in England and Wales, Science & Justice 58 (2018), pp. 128 – 137. Meanwhile, a study from the United States found forensic evidence in 74 % of the cases exonerated by the innocence project in 51 % of those cases, wrong or invalid forensic evidence supported the defendant’s guilt. See Garrett, Convicting the innocent: where criminal prosecutions go wrong, p. 89. Later the Innocence Project study found that forensic evidence contributed to false convictions in 46 % of the cases. See Meterko, Strengths and Limitations of Forensic Science: What DNA Exonerations Have Taught Us and Where to Go From Here, West Virginia Law Review 119 (2016), pp. 639 – 649. The

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rensic disciplines that were considered reliable in the past were later found to be unreliable. Moreover, even forensic evidence that is still considered reliable today, in some cases led to errors in conviction.3 In ‘Forensic Science’, we refer to a wide spectrum of disciplines that apply scientific methods in criminal investigations, and in the analysis and presentation of evidence in legal proceedings, specifically in criminal proceedings.4 These include disciplines such as DNA analysis, fingerprint analysis, firearm and tool mark analysis, forensic medicine, toxicological tests, and many others. Each discipline is characterized by different methodologies. The various forensic disciplines differ in the level of their reliability, their error rates, the extent of scientific validation of the method, and the degree of expertise expected of experts working in the discipline, etc.5 In the last several decades, many mistakes and limitations related to forensic evidence have been exposed worldwide. In 1989 in the United States, the first DNA exoneration took place. Later, in 1992 Barry C. Scheck and Peter J. Neufeld founded the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University.6 This groundbreaking project exposed wrongful convictions using DNA evidence. The project’s unique value also lay in the fact that the exonerations were not controversial and there was no doubt that the original convictions were indeed wrongful. In addition to exposing the general phenomenon of wrongful convictions, it brought to the forefront the terrible injustice that all wrongful convictions carry by exposing the actual and personal stories of the wrongly convicted persons.7

most recent data on the website points to 52 % of cases where misapplication of forensic science contributed to of wrongful convictions. The National Registry of Exonerations showed that in 25 % of the cases looked at by it, the wrongful convictions were based among other factors on false or misleading forensic evidence. See the national registry of exonaerations, https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime. aspx. 3 Committee on Prevention and Correction of Wrongful Convictions (Danziger Committee) Interim Report on Forensic Evidence, 31. 3. 2021 (here: Danziger Report) p. 5. 4 For comparison see definition in Forensic Science Regulator Act, 2021 (UK) at https:// www.legislation.gov.uk/ukpga/2021/14/enacted section 11; Draft of Code of Practice by the Forensic Science Regulator, Jan 2023 (UK) at https://assets.publishing.service.gov.uk/gover nment/uploads/system/uploads/attachment_data/file/1131659/E02852302_Forensic_Science_ Draft_CoP_Web_Accessible.pdf (accessed at 28. 1. 2023) – p. 15; similar definition in Danziger Report, p 3. 5 Danziger Report, p. 5. 6 See Innocence Project on https://innocenceproject.org/ – was founded in 1992, the project represents clients seeking post-conviction DNA testing to prove their innocence. 7 See Innocence Project https://innocenceproject.org/.

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As of the writing this article, the Innocence Project has helped exonerate 375 wrongfully convicted people. 52 % of those cases involved misapplication of forensic science that contributed to the wrongful convictions.8 Exposure of errors that were based on forensic evidence have also been discovered outside the Innocence Project. In the early 2000s, more and more instances of mistakes in forensic evidence were exposed. One such mistake took place in 2004 when FBI experts concluded that a fingerprint related to a deadly terror attack in Madrid matched that of Brandon Mayfield.9 This opinion was later found to be wrong, following the arrest of the true attacker. The FBI established a review committee to examine the case. It was determined that the experts that performed the comparison acted in accordance with strict FBI procedures. The report also stated that a senior inspector verified and approved the opinion and so did an external expert. The examination did not find that any of the experts acted deliberately to bias the result. The FBI review committee and the US Department of Justice Office of the Inspector General (OIG) both concluded that the main causes of the error in the Mayfield Case were the unintended and unconscious cognitive biases of the examiners, which caused the error and its fixation (circular reasoning, confirmation bias), as well as the great similarity between the fingerprints involved. Furthermore, the case demonstrates the need for particular care in conducting latent fingerprint examinations involving IAFIS database candidates.10 Errors in forensic evidence have also been revealed in countries outside the United States. An example is the Birmingham Six Case that received extensive media coverage and involved much public interest. In that case, six men were acquitted in 1991, after being convicted and imprisoned in 1975 on the charge of carrying out a deadly

8 See innocence Project, Overturning Wrongful Convictions Involving Misapplied Forensics https://innocenceproject.org/overturning-wrongful-convictions-involving-flawed-forensics/ (accessed at 2. 3. 2023). 9 U.S Department of Justice, Office of the Inspector General, A Review of the FBI’s Handling of the Brandon Mayfiled (Oversight and Review Division, 2006) at https://oig.ju stice.gov/sites/default/files/archive/special/s0601/final.pdf (accessed at 29. 1. 2023); Stacey, Report on the Erroneous Fingerprint Individualization in the Madrid Train Bombing Case, Forensic Science Communications, see https://archives.fbi.gov/archives/about-us/lab/forensicscience-communications/fsc/jan2005/special_report/2005_special_report.htm (accessed at 29. 1. 2023). 10 U.S Department Of Justice, Office Of The Inspector General, A Review Of The FBI’s Handling Of The Brandon Mayfield (Oversight and Review Division, 2006) at https://oig. justice.gov/sites/default/files/archive/special/s0601/final.pdf (accessed at 29. 1. 2023); Stacey, Report on the Erroneous Fingerprint Individualization in the Madrid Train Bombing Case, Forensic Science Communications, see https://archives.fbi.gov/archives/about-us/lab/forensicscience-communications/fsc/jan2005/special_report/2005_special_report.htm (accessed at 29. 1. 2023).

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attack by the Provisional Irish Republican Army (in 1974).11 In that case, the convictions were based mainly upon confessions and a forensic test (the ‘Greiss Test’ that found traces of nitro-glycerine on the hands of two of the six men). The case against the men “collapsed when fresh evidence caused the Court of Appeal to cast doubt on a key piece of forensic evidence used at the original trial to secure the convictions” and as a result of the acquittal, “substantial reforms and safeguards have been implemented to maintain public confidence in the integrity of the CJS in England and Wales”.12 Another example is the case of Shirley McKee, in which a fingerprint found at a murder crime scene, was mistakenly identified as a match to police investigator McKee. The case later brought about the publication of the comprehensive Scottish Fingerprint Inquiry Report (2011).13 In addition, studies began to accumulate, revealing the limited reliability of various kinds of forensic evidence. Some evidence pointed to much higher error rates than previously believed. One such study with surprising and disturbing findings was published in the field of fingerprints. The study conducted with experienced latent print experts,14 showed that some of the experts contradicted their own earlier opinions when they were shown the same fingerprints they had previously compared, after they were exposed to biasing information.15 Other studies on fingerprints exposed troubling error rates, regardless of biasing information.16 In the meantime, other forensic disciplines were found to entirely lack scientific validity. Such was the case with microscopic hair comparison17, bite mark compar11

R. v. McIlkenny, Hunter, Walker, Callaghan, Hill and Power (1991) 93 Crim. App. R. 287 [The Birmingham Six]; Great Britain: home office, forensic science strategy: a national approach to forensic science delivery in the criminal justice system, (HM Government, March 2016), at p. 14. 12 Home Office: Forensic Science Strategy: A National Approach to Forensic Science Delivery in the Criminal Justice System, ibid. 13 Campbell, The Fingerprint Inquiry Report. 14 The participants were taken from international fingerprint expert pool of volunteers, including experts from a variety of fingerprint bureaus, agencies, and laboratories from across the world. In this case: US, UK, Israel, The Netherlands and Australia. 15 Dror/Charlton/Péron, Contextual Information Renders Experts Vulnerable to Making Erroneous Identifications, Forensic Science International 156 (2006), pp. 74 – 78. 16 FBI major black-box study showed a 0.17 percent false positive rate, which corresponds to 1 error in 604 cases up to 1 error in 306 cases. The Miami-Dade Police Department Forensic Services Bureau study found a false positive rate of 4.2 percent up to 5.4 percent. This rate corresponds to 1 error in 24 cases up to 1 error in 18 cases. PCAST 2016, pp. 94 – 95. 17 The National Academy of Sciences (NAS) report, from 2009, stated that microscopic hair comparisons could not be used to match hair with a specific individual, see National Academy of Sciences, Strengthening the Use of Forensic Science in Criminal Courtrooms, 2009 (“NAS Report”); Later, in 2015 the , the FBI published a statement that addresses the matter of overstating probability of a match by their hair microscopy experts (in 95 percent of the cases they reviewed). See FBI Testimony on Microscopic Hair Analysis Contained Errors

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ison18 and comparative bullet lead analysis.19 Substantive limitations were also found in the field of shoeprint comparison.20 Similarly, in the field of arson, a 1992 publication by the National Fire Protection Association (NFPA) stated that although physical artifacts (such as “alligatoring” of wood, crazed glass, and sagged furniture springs) were previously thought to occur only in intentional fires, they could also occur in accidental fires.21 Even in the advanced field of DNA analysis, which is considered most reliable, a scientific foundation review of the National Institute of Standards and Technology (NIST) concluded that there are many issues regarding DNA mixture interpretation. It also said that the issues raised in the review, “if not properly considered and communicated, can lead to misunderstandings regarding the strength and relevance of the DNA evidence”.22 Furthermore, other studies found that DNA mixture interpretation practices were subject to cognitive biases and that different experts could reach different findings regarding the same samples.23

in at Least 90 Percent of Cases in Ongoing Review, published on April 20, 2015, see https:// www.fbi.gov/news/press-releases/fbi-testimony-on-microscopic-hair-analysis-contained-errorsin-at-least-90-percent-of-cases-in-ongoing-review (accessed at 17. 1. 2023); Hsu, FBI Admits Flaws in Hair Analysis over Decades, The Washington Post, https://www.washingtonpost.com/ local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/ 04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html?noredirect=on&utm_term=. 4ff328772ea2. 18 Bush/Cooper/Dorion, Inquiry into the scientific basis for bitemark profiling and arbitrary distortion compensation, Journal of Forensic Sciences 55 (2010), pp. 976 – 983. 19 In the field of bullet comparison, Comparative Bullet Lead Analysis (“CBLA”) was believed to be able to link bullets found at a crime scene to bullets possessed by a suspect based on the assumption that the lead composition in a bullet was unique and limited to the batch that it came from. Since the early 1980s, the FBI conducted bullet lead examinations in over 2,500 cases. The FBI stopped using CLBA after a 2002 National Academy of Sciences report found problems with interpretations of the results of these analyses. See FBI Laboratory Announces Discontinuation of Bullet Lead Examinations, National Press Release (2005) https://archives.fbi.gov/archives/news/pressrel/press-releases/fbi-laboratory-announces-disconti nuation-of-bullet-lead-examinations. 20 Shor/Weisner, A Survey on the Conclusions Drawn on the Same Footwear Marks Obtained in Actual Cases by Several Experts Throughout the World, Journal of Forensic Sciences 44 (1999), pp. 380 – 384. 21 National Fire Protection Association, “Guide for Fire and Explosion Investigations 1992 Edition.” 1992. See https://studylib.net/doc/18648668/national-fire-protection-association– nfpa-921–guide-for… and https://innocenceproject.org/overturning-wrongful-convictions-in volving-flawed-forensics/. 22 The National Institute of Standards and Technology (NIST) DNA Mixture Interpretation: A NIST Scientific Foundation Review, June 2021, see https://nvlpubs.nist.gov/nistpubs/ir/ 2021/NIST.IR.8351-draft.pdf. 23 Dror/Hampikian, Greg: Subjectivity and bias in forensic DNA mixture interpretation, Science & Justice 51 (2011), pp. 204 – 208.

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These are only a small fraction of the studies that exposed limitations in forensic evidence.24 In light of the cases and studies of the kind mentioned above, which exposed various weaknesses in forensic evidence, and due to the desire (and need) to maintain public trust in law enforcement, some countries have conducted comprehensive reforms.25 As a result, In the UK, the Science and Technology Committee (appointed by the House of Commons) recommended that “… a Forensic Science Advisory Council be established to act as a regulator of the forensic services market, and to provide a much-needed overview of the process by which forensic science is used in the criminal justice system.”26 Later, in 2007 the (non-statutory) Forensic Science Regulator was established under the Royal Prerogative to set standards for forensic science and ensure compliance with those standards.27 The regulator then formulated comprehensive and detailed work procedures “codes of conduct and practice” for various forensic fields, and those codes were gradually implemented. In addition, the regulator published reports and provided advice to the courts.28 In 2021, Forensic Science Regulator Act 2021 was passed and the provisions establishing the Forensic Science Regulator under the Act commenced on 25 July 2022.29 In addition to the requirement by the regulator to prepare and publish codes of practice for carrying out forensic science activities (codes that are admissible as evi24 See more examples: studies posted on Dr Itiel Dror’s website https://www.ucl.ac.uk/ ~ucjtidr/, Many more studies that exposed limitations in forensic evidence are referred to in the PCAST report. 25 Regarding the importance of public accountability see UK Government, Terms Of Reference For The Forensic Science Advisory Council, (issue 3) https://assets.publishing.service. gov.uk/government/uploads/system/uploads/attachment_data/file/920120/FSAC_ToR_Issue_3. pdf (accessed at 17. 1. 2023). 26 House of Commons Science and Technology Committee Forensic Science on Trial (March 16, 2005) https://publications.parliament.uk/pa/cm200405/cmselect/cmsctech/96/96i. pdf. 27 Draft of Code of Practice by the Forensic Science Regulator, Jan 2023 (UK) at https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 1131659/E02852302_Forensic_Science_Draft_CoP_Web_Accessible.pdf (accessed at 28. 1. 2023) – p. 9. 28 Forensic Science Regulator, Codes Of Practice And Conduct For Forensic Science Providers And Practitioners In The Criminal Justice System (Issue 4, Oct., 2017); House Of Commons Science And Technology Committee, Forensic Science Strategy Fourth Report Of Session 2016 – 2017 (Sept. 17, 2016). 29 Forensic Science Regulator Act 2021, see https://www.legislation.gov.uk/ukpga/2021/14/ contents/enacted; Draft of Code of Practice by the Forensic Science Regulator, Jan 2023 (UK) at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/1131659/E02852302_Forensic_Science_Draft_CoP_Web_Accessible.pdf (accessed at 28. 1. 2023) – pp. 9 – 10.

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dence in court), the Act introduced powers for the Regulator to intervene in forensic science activities. The regulator, under the Act, has the power to investigate and to require compliance with one or more steps specified in a compliance notice. A notice may prohibit the person from carrying on any forensic science activity in England and Wales until compliance is achieved. The regulator may also bring proceedings for an injunction (including an interim injunction) for the purpose of securing compliance.30 The regulator’s first draft statutory Code of Practice, has been presented to the UK Parliament, was published on January 2023 and is supposed to come into force on 2nd October 2023.31 In the United States, in 2009 the National Academy of Sciences published a comprehensive report Strengthening Forensic Science in the United States: A Path Forward (NAS).32 The reason for the report was stated in the preface: “Recognizing that significant improvements are needed in forensic science, Congress directed the National Academy of Sciences to undertake the study that led to this report […] It is clear that change and advancements, both systemic and scientific, are needed in a number of forensic science disciplines – to ensure the reliability of the disciplines, establish enforceable standards, and promote best practices and their consistent application”.

The NAS report, addresses various forensic fields, including fingerprint comparison, shoeprint analysis, toolmark and firearms identification, analysis of hair evidence, analysis of explosives evidence and fire debris, bloodstain pattern analysis, biological evidence, etc. The report indicated significant difficulties in forensic methods, stating: “With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”33

The report recommended establishing an independent federal entity, that would promote accreditation and certification processes. It stated that research was needed to address the issues of accuracy, reliability, and validity of the forensic disciplines. It also called on Congress to authorize reform in order to maximize the independence 30

Forensic Science Regulator Act 2021, see https://www.legislation.gov.uk/ukpga/2021/14/ contents/enacted. 31 Draft of Code of Practice by the Forensic Science Regulator, Jan 2023 (UK) at https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 1131659/E02852302_Forensic_Science_Draft_CoP_Web_Accessible.pdf. 32 Committee on Identifying the needs of the Forensic Science Community, Strengthening Forensic Science in the United States: A Path Forward 37 (The National Academies Press, Aug., 2009). 33 Committee On Identifying The Needs Of The Forensic Science Community, Strengthening Forensic Science In The United States: A Path Forward 37 (The National Academies Press, Aug., 2009). p 7.

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and autonomy of forensic laboratories in respect of administrative control of law enforcement, etc.34 As a result, new federal bodies were established in the United States.35 At the same time, working groups were established and more specific reports were published, see as examples: Scientific Working Group for Gunshot Residue (SWGGSR); Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST). A few years later, in 2016, the American Presidents’ Council of Advisors on Science and Technology published an updated report on the issues of forensic science (PCAST 2016).36 The report compiled and reviewed more than 2,000 papers from various sources (including bibliographies prepared by the Subcommittee on Forensic Science of the National Science and Technology Council and the relevant Working Groups organized by the National Institute of Standards and Technology (NIST)).37 The report addressed various forensic disciplines and indicated that most of them were not sufficiently scientifically validated or that there was no sufficient database to draw accurate findings from.38 Among all the recommendations that the report gave, there were also recommendations for the judicial system, one of which stated: “When deciding the admissibility

34

Ibid., pp. 14 – 33, 183, 187. Organization of Scientific Area Committees (OSAC); National Commission on Forensic Science (NCFS); Butler, The National Commission on Forensic Science and the Organization of Scientific Area Committees, National Institute of Standards and Technology. 36 Executive Office of the President President’s Council of Advisors on Science and Technology, Report To The President – Forensic Science In Criminal Courts: Ensuring Scientific Validity Of Feature-Comparison Methods, 2016 (PCAST). 37 It is in place to note that The President’s Council of Advisors on Science and Technology (PCAST) is an advisory group of leading scientists and engineers in the United States. PCAST, 2016. 38 For example, the report found that DNA analysis of complex-mixture samples based on CPIbased approaches, has been an inadequately specified, subjective method that has the potential to lead to erroneous results. As such, it is not foundationally valid. Regarding bitemark analysis the report found that the field does not meet the scientific standards for foundational validity and is far from meeting such standards. As to footwear analysis the report found no appropriate empirical studies to support the foundational validity to associate shoeprints with particular shoes based on specific identifying marks and states it is not scientifically valid. Regarding hair analysis the report found that the existing studies do not establish foundational validity and reliability. Regarding other fields, the report found a substantial false positive error rate that must be taken into account. In latent fingerprint analysis, it could be as high as 1 error in 306 cases in one study and 1 error in 18 cases in the other. On Firearms analysis the estimated error rate is at 1 in 66, with a 95 percent confidence limit of 1 in 46 (and only one appropriately designed study was conducted), thus the field falls short of the criteria for foundational validity. It is important to note that concerning validity as applied, even in the foundationally valid fields (such as single source or simple mixture DNA analysis), it was found that biases and mistakes occur. For example because of sample mix-ups, contamination, incorrect interpretation, and errors in reporting. 35

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of expert testimony, federal judges should take into account the appropriate scientific criteria for assessing scientific validity”.39 Other countries also reacted to the new findings in the forensic fields. For example, in Canada, several bodies became engaged in the improvement of forensic science and in the supervision of specific forensic fields. For instance, in 2010 the Death Investigation Oversight Council (DIOC) was established as an independent body that oversees the Chief Coroner and the Chief Forensic Pathologist by advising and making recommendations on matters such as quality assurance, performance measures, and accountability mechanisms, etc.40 In addition, in the autumn of 2002, in response to a number of wrongful convictions across the country, and the various reports of inquiries they generated, the FPT Heads of Prosecutions Committee established a working group on the Prevention of Miscarriages of Justice. This committee’s report was published in 2004. The group’s mandate was to develop a list of best practices and to recommend proactive policies, protocols and educational processes to guard against future miscarriages of justice. Among the subjects that the report addressed were DNA evidence and other forensic evidence and expert testimony.41 Similarly in Australia and New Zealand, the National Institute of Forensic Science (NIFS) was established in 1992 (from 2008 within Australia New Zealand Policing Advisory Agency ANZPAA), governed by the Australia New Zealand Forensic Executive Committee (ANZEC). The NIFS’s intent is to facilitate excellence in forensic science.42 Growing Public Interest in Forensics and Better Accessibility It seems the development and process of disillusionment with forensic evidence, alongside with the rise in the accessibility to this knowledge, may have had effects beyond the legal community. Over recent decades, the accessibility of knowledge has improved dramatically, mainly thanks to the internet, social media, etc. This is also true about the accessibility of knowledge concerning forensic evidence. Thus even laymen can learn about the limitations and validity issues of various forensic methods, without much effort and despite not having any expertise in forensics.

39 PCAST, 2016; also see summary https://obamawhitehouse.archives.gov/blog/2016/09/20/ pcast-releases-report-forensic-science-criminal-courts. 40 Death Investigation Oversight Council, see on https://www.pas.gov.on.ca/Home/Agency/ 35. 41 Report on the prevention of miscarriages of justice: FPT Heads of Prosecutions Committee Working Group (2004). See https://www.justice.gc.ca/eng/rp-pr/cj-jp/ccr-rc/pmj-pej/ pmj-pej.pdf. 42 ANZPAA, see https://www.anzpaa.org.au/forensic-science-2/about.

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We also note that at the same time there was and still is growing public interest in criminal justice and specifically in forensic evidence. This is evident in the radiant rise of the ‘true crime’ category in movies, series and podcasts. The media nowadays brings issues raised by forensic evidence development to the homes of the general public, or possibly vice versa, namely that changes, and progress in the forensics disciplines are fed by peoples’ interest in it.43 This recognition of public interest and knowledge is relevant to the observations we will suggest below, because if the public persists in showing interest, and more and more forensic science limitations are revealed, it can’t be ruled out that this may have effects on public trust in the legal system.

III. The Assessment of Forensic Evidence in Israel: The Committee on Prevention and Correction of Wrongful Convictions Israel, as well as other countries around the world, as mentioned in II., is undergoing development in the forensic field, and becoming more aware of the true capabilities and limitations of forensic evidence. Much public interest in forensic evidence in Israel originated in the well-publicized case of the murder of Tair Rada. This was a murder trial of a 13-year-old girl, who was found stabbed in a school bathroom in 2006. The suspect, Roman Zdorov,44 was an immigrant, doing construction work at the school at the time. He later confessed but many concerns were raised as to the reliability of his confession. Roman was sentenced to life imprisonment in 2010. However, his guilt was a source of controversy, receiving much media coverage.45 In 2021 The Supreme Court of Israel ordered a retrial of the case.46 Finally, after the writing of this article, after 15 years of struggle, Roman was acquitted by the district court at retrial. The State did not appeal. During the well-publicized trial, there was some controversial forensic evidence, including hair found on the deceased that belonged to different unknown persons (Mitochondrial DNA test), that did not match Roman’s hair. A match to the other suspect involved was possible, which might thus serve as exculpatory evidence. Additional forensic evidence in the case included shoeprints that experts later testified 43

An example of content for the wide public on the matter of forensic evidence are the following videos from the John Oliver, “Last week Tonight”: Forensic Science: Last Week Tonight with John Oliver https://www.youtube.com/watch?v=ScmJvmzDcG0; Death Investigations: Last Week Tonight with John Oliver https://www.youtube.com/watch?v= hnoMsftQPY8. 44 Sometimes pronounced Zadorov. 45 As well as being the focus of an Israeli documentary TV series called “Shadow of Truth”. 46 The Supreme Court decision on retrial 6881/19 Roman Zdorov v. Israel (11. 5. 2021). Serious crime case 502/07 Israel v. Roman Zdorov (31. 3. 2023).

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could not be determined to be Roman’s shoe imprints, if shoe imprints at all; medical experts’ issues involved knife marks, etc.47 The decision to grant a retrial was based mainly on a new expert opinion that Zdorov submitted regarding the question of how long after the death of the diseased her blood could still drip (on a shoeprint found on the scene that was not a match to Zdorov’s shoe size). In addition, the state admitted the existence of an error in one of the opinions of the National Institute of Forensic Medicine that it had submitted during the trial.48 The coverage of the case brought to the fore the complex issues of forensic evidence and ignited public discourse on the matter. It is appropriate to note that it was the honorable Supreme Court Justice Prof. Yoram Danziger, who gave the minority opinion at the appeal hearing on the conviction, and was the first to advocate acquittal of Zdorov after finding there was reasonable doubt as to his guilt. Danzinger’s minority decision on acquittal, referred to some complexities and contradictions including the shoeprints at the crime scene that did not belong to Zdorov, the kind of knife that caused the cut in the deceased chin (serrated knife) in contrast to Zdorov’s confession, weakness of the confessions, etc.49 At the same time, coinciding with public interest in the Zdorov case, the Israeli State Comptroller published a report in 2017. This report was one of the first glimpses into the practices of the main forensic laboratory in Israel (“DIFS” – The Division of Identification and Forensic Science – DIFS in the Department of Investigations and Intelligence of the Israeli police).50 The report revealed that half of the working methods used by DIFS laboratories had not been accredited by the Israel Laboratory Accreditation Authority. Furthermore, all processes and methods of handling samples by investigators at crime scenes and mobile laboratories were not accredited nor supervised.51 At the same time, a forum on forensic science was established in the Israeli Public Defense. The forum was established with a view to the Public Defense’s commitment to the prevention of wrongful convictions. Its aim was not only to improve legal rep-

47

Ibid. Ibid. 49 The Supreme Court decision on appeal 7939/10 Roman Zdorov v. Israel (23. 12. 2015). 50 Israeli State Comptroller yearly report 68C (2017), pp. 329, 332, 349. 51 As of the date of publication of the interim Danziger Report, 59 out of 85 of the forensic methods used by DIFS were accredited. According to the latest accreditation certificate (of 8. 6. 2022) – 56 methods are mentioned, see https://www.israc.gov.il/_Uploads/dbsLabs/ AK0087-5.pdf. It is also worth mentioning that all of the methods in the accreditation of DIFS are by “In house procedure”. 48

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resentation in cases involving forensic evidence, but also to question the reliability of forensic evidence when relevant.52 In the following year, 2018, the Committee for the Examination of Forensic Medicine in Israel published its recommendations. The main recommendation was to establish another institute for forensic medicine, as there was only one such institute in Israel, which had very limited accessibility by the defense. The committee also drew up guidelines for regulating and documenting the working interfaces between the institute, the police, the prosecution, and the defense in order to reduce the risk of biases and conflicts of interests.53 The highlight of developments in the forensic field in Israel was no doubt the establishment of the Committee on Prevention and Correction of Wrongful Convictions, chaired by retired Supreme Court Justice Prof. Yoram Danziger (Danziger Committee), and a report published by the committee on the issue of forensic evidence (here the Danziger Report). The Danziger Committee was established in 2018 and was authorized to address the following issues: false confessions in investigations; possible mistakes caused by relying on erroneous forensic evidence; possible mistakes caused by relying on erroneous eyewitness testimony and misidentification; and examinig what would be appropriate mechanisms to detect wrongful convictions and correct them.54 In 2019, the Danziger Committee published an interim report on the subject of erroneous eyewitness testimony and misidentification, and a second interim report on the subject of forensic evidence was published on 31. 03. 2021.55 Members of the Danziger Committee represented various participants in the criminal justice system; the chairman representing the Judiciary, the vice chairman of the committee representing the academy, the States Attorney, the Deputy Attorney General (Criminal law) the Chief of Investigations at the Israel Police, the Deputy to the National Public Defender’s office, former Minister of Justice. The committee hosted experts from abroad and from Israel, including the head of the Division of Identification and Forensic Science (Israel Police) (DIFS), head of Abu Kabir National Institute of Forensic Medicine, UK Forensic Science Regulator.56 The report reviewed developments in the forensic field worldwide and in Israel and addressed some of the limitations found. 52 The Public Defenders Yearly Activity Report for 2017, Chapter in focus: prevention of false convictions, 2018, p. 133. 53 Recommendations of the Committee for the Examination of Forensic Medicine in Israel (March 2018). 54 Danziger Report. 55 Danziger Report; Committee on Prevention and Correction of Wrongful Convictions (Danziger Committee), Interim Report on Erroneous Eyewitness Testimony and Misidentification (2. 9. 2019). 56 Danziger Report.

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The committee’s main recommendation was to establish a new regulatory unit for forensic science in Israel. The committee stated that the unit was to examine the forensic methods and their application in Israel. This recommendation’s aim was to reduce mistakes and wrongful convictions in the criminal justice system as well as to increase public trust in the law enforcement and criminal justice systems. This was done out of a commitment both to scientific principles and to the promotion of revealing the truth in legal proceedings.57 The committee recommended that the unit should be independent and self-sufficient, and should receive a budget from the government, alongside with the integration of voluntary working groups of experts in specific forensic areas (with the assistance of the Israeli National Academy of Science and Humanities).58 An advisory committee would assist the head of the regulatory unit. The advisory committee would include representatives from the following bodies: the judicial system, law enforcement, the prosecution, the public defender’s office; the Bar Association; the academy (Israeli Nation Academy of Sciences), experienced forensic service providers, the Israel Laboratory Accreditation Authority and the Ministry of Health.59 The committee also recommended which responsibilities should be given to the regulatory unit upon establishment, namely examination of the fundamental reliability and validity of forensic methods (inter alia referring to whether methods were based on independent research of sufficient scope, conducted under appropriate scientific conditions, the ability of the study to indicate the rate of false positive errors of the method and being subject to peer review), determining the standards and best practices for conducting forensic tests including practices aimed at reducing cognitive bias (by limiting experts’ access to irrelevant information to the extent possible, gradual and documented exposure of experts to potentially biasing information), establishing standards for expert testimony (that should take into account the need to provide detailed information as to the limitations of the evidence, and, on the other hand, avoiding revealing information that may lead to disruption of investigative procedures or the violation of the rights of the accused), ongoing consultation duties for public and private laboratories, publishing guidelines and procedures that would be formulated and updated from time to time, establishing training methods and accreditation for forensic examiners, the publication of an ethics code for experts, examining and evaluating new forensic methods, promoting research, establishing standards for the preservation of forensic exhibits, publishing recommendations regarding the proper management of forensic databases, promoting an organizational culture and obligation to disclose mistakes and failures. Each recommended responsibility was elaborated in the report.60 57

Danziger Report, p. 42. Ibid. 59 Ibid. 60 Danziger Report, pp. 42 – 43.

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The committee also recommended that at the first stage, the cooperation of laboratories with the regulatory unit would be on a voluntary basis (and that the courts could consider compliance with the guidelines of the unit as evidence), and that at second stage, the regulatory unit’s responsibilities be anchored in legislation, with the legislation’s directives become binding on all forensic operators (the unit would be given the power to conduct inspections, issue alerts, prevent forensic activities, etc.).61 Another supplementary recommendation was to take steps to allow defense access to forensic experts, establish adequate rates for the public defenders’ consultation with experts, and promote state funding of forensic experts from abroad for the defense when needed. In addition, the committee recommended taking action to give defense access to forensic medicine experts and encourage the establishment of private forensic laboratories. The committee recommended that DIFS’s field laboratories and all methods be accredited. In addition it recommended that the procedures and guidelines of forensic laboratories be provided to the defense in each case where there was a dispute regarding forensic evidence, and that procedures would be made publicly available as early as possible. The majority opinion of the committee also recommended that the guidelines of law enforcement regarding forensics be published. Moreover, the committee recommended strengthening the professional trainings in forensics in Israel of judges, policemen, prosecutors and defense attorneys. It said that training should reflect the current research and findings from around the world, and should be incorporated into the law faculties and in diverse educational programs. Some of the recommendations of the committee referred to the establishment of a regulatory unit, and some were for immediate implementation (until the establishment of such a unit).

IV. The Admissibility of Forensic Methods Despite developments in the forensic field that unraveled flaws and limitations of various forensic disciplines and their contribution to wrongful convictions, and despite the overall disillusionment regarding forensic evidence, we do not see the expected court decisions preventing unreliable evidence from being considered in the courts of law. In Israel, as in the United States, UK, and other countries, forensic evidence is admitted to court via expert opinions. The expert testifies about the examination con-

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ducted on the evidence and the conclusions drawn from it. Thus, expert testimony constitutes an exception to the hearsay evidence rule.62 In the United States, the accepted rule for admissibility of expert testimony was the Frye Rule from 1923. Frye stated that the evidence would be admissible only if it is “..sufficiently established to have gained general acceptance in the particular field in which it belongs”.63 Later, in 1975, federal rules of evidence were enacted. In 1993, in the opinion in the Daubert Case, the Supreme Court ruled that under rule 702 of the federal rules of evidence, the judge must ensure that “any and all scientific testimony or evidence admitted is not only relevant but reliable”. The court also pointed to several factors to be considered regarding reliability: (1) Whether the method (theory or technique) can be and has been tested (2) Whether the method (theory or technique) has been subject to peer review and publication (3) The error rate of the method (known or potential) (4) The existence of standards for the operation of the method, and its applicability and (5) A scientific technique’s degree of acceptance within a relevant scientific community.64 After Daubert, US federal Rule 702 was amended, and it now refers also to the specialized knowledge of the expert, sufficient facts or data as the basis of testimony, reliability of the principles and methods used, and the reliability of the application of those methods to the facts of the case.65 Today in the United States, the federal court system follows solely the Daubert Rule, while the states follow either the Frye or Daubert Rules, or a variation or combination of the two.66 In the UK, in England and Wales the admissibility rule of forensic evidence is set in guidelines and in case law.67 Although there is no rule equivalent to Daubert, the

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Israeli evidence ordinance (1971), section 20. Frye v. United States 54 App.D.C 46 (1923). 64 Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993); NAS, p. 10. 65 See Federal Rules of Evidence; For further background see https://www.law.cornell.edu/ rules/fre/rule_702. 66 See https://www.expertinstitute.com/resources/insights/daubert-versus-frye-a-nationallook-at-expert-evidentiary-standards/. The Supreme Court ruled in two more important cases on the matter of expert testimony admissibility, in the case of General Electric (General Electric Co. V. Joiner, 522 U.S. 136 (1997)) and in the case of Kumho (Kumho Tire Co. V. Carmichael, 526 U.S. 137, 141 (1999) (known together as the ‘Daubert Trilogy’). 67 Lord Chief Justice Criminal Procedure Rules and Practice Directions 2020 (last updated 09/01/2023) – part 19 refers to expert evidence crim-proc-rules-2020-part-19.doc (live.com) and Criminal Procedure Rules and Practice Directions 2020 - GOV.UK (www.gov.uk); see R v. Ward [1993] 1 W.L.R. 619; [1993] 2 All E.R. 577; (1993) 96 Cr. App. R. 1; R v. Asiedu [2015] EWCA Crim 714 and R v. Clark [2003] EWCA Crim 1020; R v. Momodou [2005] EWCA Crim 177; National Justice Cia Naviera SA v. Prudential Assurance Co. Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68; R v. Harris & Ors. [2005] EWCA Crim 1980; R v. Bowman 63

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exclusion of forensic evidence is possible under the general provisions on reliability, relevancy and fairness. Forensic science experts must comply with several obligations that were set out by courts. The experts must also comply with the Criminal Procedure Rules and Criminal Practice Directions (where Lord Chief Justice gave effect to some recommendations made by the Law Commission in 2011 regarding issues of admissibility).68 Additionally, forensic experts are under an obligation to act in accordance with the forensic science regulator’s Code of Conduct (when they come into effect).69 Moreover, experts testifying for the Crown Prosecution Service (CPS) must comply with the core foundation principles for Forensic Science Providers set out by it. These principles might also serve as standards for forensic experts in general. Key requirements in the CPS Principles are to: ensure quality standards and assurance processes are applied (ISO standards, accreditation, EU directives and clear development and validation processes), provide clear communication and interpretation of scientific processes, procedures, strengths, weaknesses and meaning, engage with the Streamlined Forensic Reporting (SFR) process associated with proportionate prosecution requirements and full awareness of and compliance with CPIA disclosure and expert witness obligations (CPS Guidance).70 The Forensic Science Regulator’s Code of Conduct “set out the applicable validation standards for scientific processes and provides for the accreditation […] of quality management standards in partnership with the United Kingdom Accreditation Service (UKAS)”.71 In Israel, Israel’s Supreme Court, inspired by US Daubert rule, adopted the criteria set out in the case and stated that evidence that is based on a new scientific theory is required to pass a ‘trial by fire’ before being recognized as admissible. The judge is required to examine whether the scientific theory is accepted in the relevant scientific community, what is the known or potential error rate, whether the theory was subject to peer review, whether it has been refuted by contradictory empirical evidence, and whether the examination conducted in the case was reliable and appropriate.72 The [2006] EWCA Crim 417; Criminal Procedure Rules and Criminal Practice Directions (see www.gov.uk/guidance/rules-and-practice-directions-2020). 68 The Law Commission no 325, Expert Evidence In Criminal Proceedings In England And Wales (2011); Criminal Procedure Rules and Criminal Practice Directions (see www.gov.uk/ guidance/rules-and-practice-directions-2020). 69 Draft of Code of Practice by the Forensic Science Regulator, Jan 2023 (UK) at https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 1131659/E02852302_Forensic_Science_Draft_CoP_Web_Accessible.pdf. 70 CPS Expert Evidence (updated 05/08/2022) Expert Evidence j The Crown Prosecution Service (cps.gov.uk); Forensic Science: Core Foundation Principles for Forensic Science Providers (updated 08/11/2019) Forensic Science: Core Foundation Principles for Forensic Science Providers j The Crown Prosecution Service (cps.gov.uk). 71 CPS Expert Evidence (updated 05/08/2022) Expert Evidence j The Crown Prosecution Service (cps.gov.uk). 72 Criminal appeal 9724/02 Abu Hamed v. Israel, paragraphs 17 – 18 to Judgment of Heshin (2003); Criminal appeal 1620/10 Nikolay Matzgora v. Israel (3. 12. 2013); Criminal appeal

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Court ruled that any new scientific evidence that seeks to ‘enter the gates’ of criminal law must be examined with a critical eye. The expert needs not only to convince the Court that the application of the evidence in the specific individual case was correct but also to prove its validity in general.73 The court emphasized that methods that were already found admissible – may be re-examined according to the above tests. Since science is dynamic and conclusions based on it can change – the parties must be given the opportunity to refute the validity of evidence. The opportunity to do so is a necessary condition for the scientific theory to be considered valid.74 In light of all the limitations and weaknesses that have been exposed in respect of forensic evidence (as shown II. and III.), the widespread use of forensic evidence in criminal cases, as well as the admissibility rules in the justice systems mentioned above (that enable courts to examine and find the forensic evidence inadmissible), it is expected that there will be an appropriate number of cases in which evidence based on some forensic methods is found to be inadmissible. Yet, as a general rule, evidence based on forensic methods is not ruled as inadmissible. In some cases the forensic evidence isn’t challenged at all. In other cases, the evidence is challenged mostly based on issues specific to the case, such as matters of application rather than the validity of the method as a whole. And when the validity of forensic methods is challenged, courts hardly ever rigorously apply the criteria set out in the legal rules, such as the Daubert rule, and do not actually examine the foundational validity of the method. Additionally, when the validity of forensic evidence is discussed, courts usually refer to the limitations in validity as justifying giving the evidence low evidentiary weight, rather than disqualifying it in its entirety. A fascinating example of that is the Matzgora Case, in which the Supreme Court (opinion written by Justice Handel, joined by Jobran and Danziger), where despite the rhetoric of the court’s judgment and although the court was asked to disqualify the evidence, the court held that the evidential weight was insignificant (‘zero’) rather than finding it inadmissible.75 5459/09 Adrian Shwarz v. Israel (20. 7. 2015); Criminal appeal 7093/10 Israel v. Orna Drizin (1. 7. 2012). 73 The court suggests examining forensic evidence using an internal test and an external test. The first examines the evidence by its content. What does the expert claim, what is his method to prove what he claims, what is the meaning of the evidence if the court accepts it, and more. The second refers to the ‘framework’ – to reviewing the science approach (does it support the expert’s claim) and substantial and direct judicial review, see Criminal appeal 1620/10 Nikolay Matzgora v. Israel (03/12/2013). 74 Criminal appeal 9724/02 Abu Hamed v. Israel, paragraphs 18 and 20 to Judgment of Heshin (2003); Criminal appeal 7093/10 Israel v. Orna Drizin, paragraph 2 to the (1. 7. 2012), judgment of Hendel. 75 As was in the case of Matzgora, see above. Criminal appeal 1620/10 Nikolay Matzgora v. Israel (3. 12. 2013).

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The court discussed the admissibility of shoeprint comparison evidence, and the court’s role of standing guard at the gates of the criminal law. However, when applying the tests to the circumstances of the case, the court failed to find the evidence inadmissible despite determining it did not meet the standards set. It determined that there was a significant difficulty in the shoeprint field, inter alia due to the lack of uniformity in the scale for degree of match and the lack of a standard for moving between the stages. The court considered it to be weak circumstantial evidence. The court also determined that shoeprint evidence was acceptable in the scientific community, although there are 7 significant difficulties with the evidence, including lack of statistics, disagreement among experts, high error rates, lack of expert-court dialogue, etc.76 Another example is in the area of shaken baby syndrome. In the case of R v. Harris and others, the court found that the mere presence of the ‘triad’ does not automatically or necessarily on its own lead to a determination of non-accidental head injury. However, such cases should be determined on their specific facts and the ‘triad’ theory was not ruled completely inadmissible.77 There are also issues in the field of toolmark evidence in the United States, where, for instance, the court stated: “The problem with ballistic evidence is that it is all subjective. There have been no large scientific studies to determine error rates. The peer community is almost exclusively law enforcement. It is not scientific […] Based on this standard and that Missouri Courts have for decades allowed ballistics experts to testify, this Court very reluctantly will allow the State’s lab person to testify, but only to the point this gun could not be eliminated as the source of the bullet.”78 Well-known cases that address the admissibility of forensic evidence were largely based on the practices of a specific case, rather than the validity of the method in general. For example, R v. Smith in the High Court in London, and Shirley Mackie in Scotland, addressed the fingerprint evidence in those cases. One more case study was in Ben Abu: one evidential finding in that case was an expert opinion which established both the presence of the remains of “date rape drug” in the hair of the victim, and the time span in which the drug was consumed (based on its location along the hair). The Magistrates Court addressed the admissibility of the evidence and found it admissible. The Supreme Court (opinion written by Justice Stein, joined by Amit and Sohlberg), after reviewing the admissibility rule, determined that in the circumstances of the case, it was not appropriate to establish the admissibility of the new forensic method, given that guilt was proven beyond a reasonable doubt without the forensic evidence.79 76

The relevant laboratory in DIFS pointed before the Danziger Committee that after the judgment, some changes in the field of shoe prints were incorporated. 77 R v. Harris & Ors. [2005] EWCA Crim 1980. 78 Missouri v. Goodwin-Bey, No. 1531-CR00555 – 01, at 4 – 5 (Mo. Cir. Ct. Green Cnty. 2016). 79 Criminal Appeal 6199/20 Ben Abu v. Israel (8. 3. 2022).

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This seems to be the tendency in the various legal systems, with only very few exceptions. Only a negligible fraction of cases actually discussed the admissibility of a forensic method, and even a smaller number of cases found a method inadmissible.80 The same is true in Israel, where courts hardly ever disqualify forensic evidence, despite the scientific justification and the ability to do so (by admissibility rules determined in Matzgora and Abu Hamed). We see that the Daubert rule was accepted in Israel de jure but is not applied de facto to its full implication. Despite the wave of scientific discoveries on the validity of evidence in the forensic field, and the adoption of a comprehensive legal rule, there seems to be no corresponding wave of rulings that reflects that. This gap raises some questions which we will attempt to answer, from a realist perspective.

V. Proposed Legal Realist Explanations In this part, we wish to suggest an explanation for the gap between the scientific advances that reveal the absence or limitations in the validity of some forensic methods – to the world of action, in which evidence is not found inadmissible in courts and its limitations tend to be minimized. We attempt to do so by a realistic observation of the reasons for not disqualifying the evidence and the tendency to minimize its scientific limitations. We introduce here 4 selected categories of proposed explanations for this gap. An important preliminary note is that we do not think that the gap is deliberately caused. We do not even attribute awareness to causing this result. Our assumption is that all parties to the criminal legal system, and most certainly the courts, seek to prevent false convictions, and act in good faith. With that said, we do believe that people and institutions are driven, possibly unconsciously, by different incentives and biases, along with proper considerations that may have unintended ‘side effects’ that cause the gap.81

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One example, see Lundy v. The Queen (New Zealand) [2013] UKPC 28 the Judicial Committee of the Privy Council decided that tests which were routinely used in a medical context may not be appropriate in the CJS without appropriate validation. 81 One example is the Israeli police prosecution’s objection to disclose procedures and guidelines of the forensic laboratories to the defense (contrary to the Danziger Committee’s recommendation). The result of this objection is harm to the ability of defendants to defend themselves, and harm to the defendants’ rights. This may even in itself be one of the explanations for the gap – as in the absence of guidelines, the defenses ability to tackle the evidence reliability in court is harmed.

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It should also be mentioned that the observations below are mere suggestions. They are not based on behavioral science research, nor are they proven fact. We offer the following propositions, not as criticism, but rather as an opportunity for improvement. And we chose Legal Realism as a tool that might reveal some underlying reasons for the existing state of affairs. Legal realism is a grand theory of judging. It is customary to say that the legal realism movement arose in the 1920s and 1930s in the United States. The review below does not exhaust the entire field, but focuses on some of the points arising from it that were found relevant to the forensic issue. It is important to remember that realists are a heterogeneous group, and there can be no one definition that fits all. However, it can generally be stated that realists view court judgments as being based not only on applying the legal rule to the facts of the case, but also on nonlegal factors, such as attributes of the litigating parties, the judge’s personality and identity, the court as an institution among other institutions, public policy and social interests, etc. Legal realism argues that the law is driven by psychological, cultural, social and political factors.82 This way of thinking questions prevailing premises of legal formalism.83 “The process of judging, so the psychologists tell us, seldom begins with a premise from which a conclusion is subsequently worked out. Judging begins rather the other way around-with a conclusion more or less vaguely formed; a man ordinarily starts with such a conclusion and afterwards tries to find premises, which will substantiate it.” Jerome Frank84

Realism is important not only because it enables an understanding of the judgments and the law, but also because its insights can be helpful if taken into account when designing legal norms.85 82

An example of a statement that is realistic is by the famous influential legal thinker, Justice Oliver Wendell Holmes famously stated in his book, “The life of the law has not been logic, it has been experience”, Justice Oliver Wendell Holmes: The Common Law, 1881; another example is Judge’s Joseph Hutcheson’s description of the process of judicial decision making as “… decides by feeling, and not by judgment; by ‘hunching’ and not by ratiocination, ratiocination appear only in the opinion”, Hutcheson, The Judgment Intuitive: The Function of the “Hunch” in Judicial Decision, Cornell L.Q. 14 (1929), p. 285; Fisher III/ Horowitz/Reed (eds.), American Legal Realism; Martin, Legal Realism: American and Scandinavian; Tumonis, Legal Realism & Judicial Decision-Making, Jurisprudence 19 (2012), pp. 1361 – 1382. 83 Coplan, Legal Realism, Innate Morality, and the Structural Role of the Supreme Court in the U.S. Constitutional Democracy, Tulane Law Review 86 (2011), https://digitalcommons. pace.edu/cgi/viewcontent.cgi?article=1808&context=lawfaculty. 84 Frank, Law and the Modern Mind. 85 “The worth or value of a given rule of law can be determined only by finding out how it works, that is, by ascertaining, so far as that can be done, whether it promotes or retards the attainment of desired ends. If this is to be done, quite clearly we must know what at any given period these ends are and also whether the means selected, the given rules of the law, are indeed adapted to securing them.” Cook, Scientific Method and the Law, American Bar As-

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As mentioned, there are different movements within legal realism. They are sub movements that generally address different types of non-legal factors that influence judicial decisions. Some of the sub movements address the identity of the judge as influencing the decision. In a simplified manner, judicial behavioralism addresses the analysis of psychological and attitudinal characteristics of the judge. Seeing the judge’s personal identity as influencing his judgment. Legal rules and norms can be biased by the unique characteristics of individual judges (for instance: gender, political standpoint, characteristic traits etc).86 Glendon Shubert, one of the founding fathers of the judicial behavioralism approach, argued that detailed analysis of a judge’s ruling using statistical tools (such as factor analysis) can lead to the quantitative prediction of their rulings.87 Following this approach, since the 1980s two versions of analysis of strategic behavior have been developed: the attitudinal model (decision based on the stance of the judge in relation to other judges) and the strategic judicial behavior (that claims it is not possible to isolate judges’ decisions from the context of relations between the governing authorities).88 Simultaneously, the school of ‘legal process’ was developed from legal realism. According to that approach, the law is shaped by interactions between the judicial system, other branches of government and socio-political agents.89 Those approaches claim that court judgments cannot be detached from the court seeing itself as an institution within a field of other institutions. “For realists, legal evolution along these lines is not merely a sociological observation about law or a recommendation to its carriers. They insist that law cannot be properly understood – as the above discussion focusing solely on doctrinal materials may suggest – without con-

sociation Journal 13 (1927), p. 308; Barzilai, The King is Not Naked – Why Law is Political, Haifa Law Journal 2008, p. 60. 86 Another statement is that of Schauer “thus, the realist-influenced lawyer will not only argue the case in terms that will appeal to actual basis of decision, but will also provide the judge with the legal doctrine, a “hook” on which to hang and justify the decision” Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning, p. 138; Dagan, The Realistic Conception of the Law Dorner Book, pp. 15, 43. 87 Schubert, The Judicial Mind Revisited: Psychometric Analysis of Supreme Court Ideology; Barzilai, The King is Not Naked – Why Law is Political, Haifa Law Journal 2008, p. 61. 88 Segal, Separation-of-Power Games in the Positive Theory of Congress and Courts, The American Political Science Review 91 (1997), pp. 28 – 44; Epstein/ Knight, The Choices Justices Make; Barzilai, The King is Not Naked – Why Law is Political, Haifa Law Journal 2008, p. 61. 89 Krislov, The Supreme Court in the Political Process; Barzilai, The King is Not Naked – Why Law is Political, Haifa Law Journal 2008, p. 62.

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sidering the operational modalities of the institutions producing and reproducing these materials”.90

It is on the basis of this realistic perspective that we propose explanations of the gap between the revelation of limitations in forensic evidence and the tendency not to disqualify forensic methods. 1. Jurists and the ‘Scientific’ Appeal of Forensic Evidence The ‘scientific‘ appeal of forensic evidence casts its shadow on people who are not scientists. Judges are well educated and intellectuals. So are lawyers, whether prosecutors or defence lawyers. However, the scientific field is usually not their forte. Thus jurists may have a hard time exploring the forensic discipline and method, understanding the limitations of different forensic disciplines and their consequences, thoroughly examining statistics and error rates, and their implications for the evidence at hand, etc. In addition, there might be a general bias preventing people from disqualifying what seems advanced, technological, scientific and enjoys a high scholarly reputation. This may create a general psychological barrier to dealing with anything that has the term ‘scientific‘ attached to it, thus deterring judges, as well as other parties in the criminal justice system, from calling them into question. Such is also the case with defense attorneys who refrain from raising questions about the validity and admissibility of forensic methods.91 Furthermore, there are the well-known constraints of real life – busy judges overburdened with cases. Is it surprising that judges cannot afford to delve into the validity of the forensic discipline? The workload of prosecutors and defense lawyers also makes it extremely difficult to find the time, effort and energy to dive into scientific and technical matters.92 It is also worth noting that scientific materials on the subject (guidelines, research etc.) are not always accessible to the legal community as they are often written in a technical manner using scientific terms and language).93 In addition, most of the rel90 Dagan, The Real Legacy of American Legal Realism, Oxford Journal of Legal Studies 38 (2018), pp. 123 – 146. 91 “We expressed particular concern about expert opinion evidence which is presented as scientific. We explained that, for evidence of this sort, there is a danger that juries will abdicate their duty to ascertain and weigh the facts and simply accept the experts’ own opinion evidence, particularly if the evidence is complex and difficult for a non-specialist to understand and evaluate” The Law Commission No. 325, Expert Evidence in in Criminal Proceedings in England and Wales (2011). 92 “Cases of this sort raise difficult and complex medical issues. The Court is very dependent upon the skill of the advocates and the ability of the witnesses to elucidate the evidence and inform the court on the issues involved.” R v. Harris & Ors. [2005] EWCA Crim 1980. 93 Worthy to praise on that matter the NIST (National Institute of Standards and Technology, U.S Department of Commerce) that recognized the difficulty of the legal community

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evant studies are in English, which may also set a barrier for judges from non-English speaking countries. In addition, there might be a natural human tendency to want to be perceived as scientific and innovative – and thus to go along with the forensic evidence and accept it fully. Moreover, since the evidence is based on scientific grounds that are considered true around the world, the courts are reluctant to dismiss methods that are still in use in other countries.94 This is in contrast to other legal areas where courts don’t hesitate to rule differently than other jurisdictions and often issue unique and pioneering legal decisions. As mentioned above, these observations are relevant not only to judges but also to other parties in legal proceedings. The responsibility for posing relevant questions and having a basic understanding of the discipline also applies to defense attorneys and prosecutors. And since those persons may suffer from the same biases as judges – it might mean that relevant questions are not raised in court (especially in adversarial legal systems). 2. Disqualifying Forensic Methods That Were Used in the Past One part of this explanation is that the court, as an institution, is unwilling to admit that in the past it relied on evidence that had little or no probative value (possibly for many years). Disqualified forensic methods that were used in the past lead by implication to the idea that at least some previous convictions were erroneous and unjust. This, in the institute’s system of consideration, could result in damage to public trust in the judiciary and in the legal system as a whole. As judges see themselves as members of the court system, as some approaches in the legal realism have suggested (see above), they may want to refrain from damaging the public’s trust in the institution (of the court, the criminal justice system and the state as a whole). Public trust is a key foundation for the existence and functioning of the judicial system: “The ability of courts to fulfil their mission and perform their functions is based on the public’s trust and confidence in the judiciary”.95 Public trust leads to

and prepared friendly-to-non-scientists documents, as an example the “DNA mixture explainer, see https://www.nist.gov/feature-stories/dna-mixtures-forensic-science-explainer. 94 In the Matzgora Case, following the presentation of the NAS 2009 Report, the court turned to the defense attorney and asked why the forensic evidence (shoeprint comparison) was not disqualified in the United States. 95 Judicial Conference of the United States, Strategic Plan for the Federal Judiciary, September 2020, Issue 2: Preserving Public Trust, Confidence, and Understanding, see https:// www.uscourts.gov/statistics-reports/issue-2-preserving-public-trust-confidence-and-understan ding and https://www.uscourts.gov/sites/default/files/federaljudiciary_strategicplan2020.pdf.

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greater compliance, encourages participation, and builds institutional legitimacy. Thus, it is important for the institution.96 Moreover, since the courts have become accustomed over the years to relying on forensic evidence, they may find it difficult to imagine other ways of establishing convictions. Then, possibly unconsciously, a judge asks herself – on what basis will I (as individual or as the court) ever convict? How will the court function as an institution? (Without the evidence that has been the butter and bread of many previous convictions).97 Furthermore, ruling that a forensic evidence method has no probative value, after past convictions were based on that method – has costs for the institution. Past cases would have to be re-opened and re-judged. High levels of compensation could be payable for erroneous past convictions, etc. The same applies when looking at a judge as an individual whose personal identity influences his judgment, as shown above to be argued by some realists. Upon looking through the eyes of the judge as an individual, it is clear that a judge might have a hard time admitting that in the past he relied on evidence that had no probative value (or that the value of which was limited), possibly in several cases, and possibly convicted innocent defendants based on that evidence. The implication of this in the judge’s mind could be (even unconsciously) – that his reputation might be damaged in the eyes of the legal community, the public and media, or even in his view in the eyes of those who have influence over his future promotions. Furthermore, admitting to the fact that past decisions were based on evidence that had no probative value – might damage the judge’s perception of himself as doing justice. That might create internal conflict and harm his self-image – so that the judge’s subconscious prevents him from accepting such ‘failures’ (and suffering from internal conflict). This also involves the important ethos of the judge’s role as doing justice, and there that he himself may have been responsible for terrible injustice.98 96 Another sign to the importance of the public trust is that it is one of the measures measured by the OECD, see https://www.oecd.org/governance/trust-in-government/. 97 This becomes even more troubling question in light of the process of disillusion from the reliability of evidence, that happened not only in the forensic evidence field but also regarding evidence as eyewitness or false confessions. Thus courts may ask themselves (unconsciously) what is left to support convictions? 98 See for instance Matzgora, where Supreme Court Justice Hendel wrote (in summary): This is not merely theoretical matter, as there is forensic evidence that rose and later fell. An example is the case of hair comparison. In the 80’s, DIF’s expert testified that hair comparison is certain in 90 % of cases. Less than a decade has passed, and the same expert testified that it is not possible to provide the mention statistic. Today this evidence is not submitted in trial. Similar process happened in fiber detection. The fact that scientific evidence has been accepted in the past, does not promise that it will remain admissible forever. The responsibility on the court as the ‘gatekeeper’ is great. He must determine whether the forensic evidence can

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What has been said referred to courts and judges but may be just as relevant to the prosecution as an institution and to individual prosecutors. Admissions by the prosecution of having used unreliable forensic evidence in the past might cut the ground from under their feet and hurt public trust in them. At an individual level, it might harm a prosecutor’s prospect of getting promoted. It might also cause internal conflict since prosecutors see themselves as seeking truth and justice. The idea that they themselves were responsible for convicting innocent people in the past (implied when admitting forensic evidence they has relied on in the past wasn’t trustworthy) might be too hard to handle. An extreme internal conflict might occur in defence lawyers who perceived themselves as those who struggle to prevent wrongful convictions if they motioned to dismiss forensic methods that they had not questioned in past cases they represented, and their clients had been convicted based on unreliable evidence. 3. Avoiding Conflict Between Institutions The court as an institution has considerations aimed at preserving its powers. Accordingly, it acts to avoid institutional crises with other bodies, as they are returning players and there is interdependence (in practical aspects – even if not officially). As mentioned, it is not possible to isolate judges’ positions from the context of the relations between the governing authorities and of the court seeing itself as an institution in a field of several institutions.99 In this context, other institutions that are involved are forensic institutions such as DIFS (The Division of Identification and Forensic Science in Israel Police), which has gained power and grown in size over the years. Thus, today, there is an interest in preserving it. Deciding against the validity of forensic evidence may result in weakening existing mechanisms, harming the careers of forensic experts, and encountering harsh opposition from senior officials, and that the courts wish to avoid. A fascinating example was the Matzgora Case, where after the court reviewed many substantial difficulbe brought into the gates of the criminal justice, or alternatively should be taken out. The importance of this tapers when comparing forensic evidence with testimony. The forensic evidence, as opposed to witness testimony, “speaks”, but the court cannot have a dialogue with her. It is not possible to ask her questions and examine her reactions, and it does not give a version on the events, its ‘voice’ reaches the court through mediators. The forensic evidence only points in a certain direction, based on probability. The forensic evidence might be admissible, but it is important to assert its special nature and to emphasize the necessity to examine the evidence with due and appropriate care. See Criminal appeal 1620/10 Nikolay Matzgora v. Israel (3. 12. 2013). 99 Segal, Separation-of-Power Games in the Positive Theory of Congress and Courts, The American Political Science Review 91 (1997), pp. 28 – 44; Epstein/Knight, The Choices Justices Make; Barzilai, The King is Not Naked – Why Law is Political, Haifa Law Journal 2008, p. 61.

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ties with a forensic method, and after stating that the experts’s testimony in the case was flawed, the court specifically stated it did not question the professionalism of the expert witness, and that it was evident that the expert has a lot of experience and knowledge in the field.100 Therefore, the courts might avoid disqualifying forensic methods. Instead, the court might use indirect inter-institution communications. The court could convey its views by writing remarks within opinions, writing minority opinions that have no effect on the outcome of specific cases, etc. This allows sending messages without damaging the relationships between the institutions (which, as mentioned, are ‘returning players‘). As an example, in Matzgora, the court stated that the field of shoeprint comparison had substantial limitations, but the court did not disqualify the evidence (rather, gave it zero evidentiary weight). After the court decision, DIFS took steps from within to address the difficulties of discipline, as pointed out by the court. Inter alia it made modifications in the ordinal scale for examining a match.101 Forensic labs such as DIFS are not the only institutions involved. Other returning players are the investigating body and the prosecution. The court depends on them for specific needs, as in any other system of mutual relations.102 4. The Difficulty of Detaching from the Agenda of Streamlining Legal Procedure and the Weighting of Utilitarian Considerations Efficiency, by its nature, is a pretty clear and easy concept to understand, for a judge to stick to. And it is promoted by the legal system (very much so in Israel).103 On the other hand, the rights of the parties in the legal proceedings, as worthy and important as they might be, could be perceived as harmful to the efficiency of legal proceedings. Indeed, legal systems aim to be both just and efficient, creating the best possible balance between the two. Some judges might see their primary responsibility in protecting the efficiency of the proceedings. Both judges that see it as the court’s mission (as an institution) to 100 Criminal appeal 1620/10 Nikolay Matzgora v. Israel (3. 12. 2013) par. 22 to honorable Justice Hendel’s opinion. 101 Danziger report, p. 20 footnote 108, referring to DIFS response to the draft of Danziger interim report (20. 10. 2020). 102 Example of that is that even though Danziger report recommended that forensic laboratories guidelines will be disclosed to the defense and though it is justified (to tackle a method in a specific case), courts do not obligate the prosecution to disclose the guidelines. 103 See Annual report for 2021 of the judicial authority – courts administration – the report even examines each year the (CR) – An index that reflects the pace of hearing cases – which was the highest in 8 years in 2021.

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promote efficiency,104 and both the judge as identity, that might identify self as utilitarian. Moreover, sometimes, even unconsciously, protecting court efficiency is an easier or more intuitive job than being the guardian of rights, as efficiency is more tangible and relevant on a day to day basis. Additionally, because judges identify with the court as an institution, there are costs to disqualifying forensic methods. That is a utilitarian consideration the court might try to avoid. There are costs where it is more difficulty to convict defendants without the particular forensic method, costs for compensation for past (wrongful) decisions, costs for the re-examination of cases, costs to delving into scientific questions that are complex, etc. These costs can be both direct-financial costs, or nonfinancial negative effects. Deciding that forensic evidence method has limited probative value, also damages the interest of finality of judgments in relation to past cases, and that has its costs too.

VI. Closing Notes The proposed observations may explain some of the reasons that led to the gap described. In the end, the gap between the role of forensic evidence in courts and its actual value is likely to take its toll on public trust in the criminal legal system. On the one hand, more and more flaws are being revealed in forensic fields. On the other hand, the public is becoming more interested in the criminal justice system and in wrongful convictions. If the criminal justice system does not keep up with progress in science – there is substantial risk that the public’s trust in it will be seriously damaged. Ironically, accepting forensic evidence does not support ones perception as being scientific, advanced and innovative, if from a scientific point of view, the evidence isn’t reliable. In addition, it may be more harmful to public trust, to one’s reputation and to one’s self-image, than dismissing the evidence. In the past, the legal system may have been able to exist within itself. However, that is no longer the case. Today, after failures have been exposed and publications about the limitations made available to the public, the legal system might not maintain public trust unless the necessary changes are made. Similarly, disregarding the limitations of forensic evidence might, in the long term, cause a more severe institutional crisis between the courts and other institutions. In Israel, more and more institutions are becoming aware of the limitations of forensic evidence. Examples are the State Comptroller (in the 2017 report), public defenders’ offices (also in their 2017 report), the Department of Justice, which estab104

And cannot be detached from this role.

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lished of the Danziger Committee, academia (in articles, publications, emerging forensic courses for students, conventions), etc. If the courts won’t update their handling of forensic evidence, the tension with those institutions is likely to grow. There is also a risk that the efficiency of the criminal justice system will be damaged further if the gap between the science of forensic evidence and its probative legal value widens. This would be the case if more resources were spent to determine the weight of forensic methods with limited reliability, rather than on the decision to disqualify them.105 On top of that, if a method ought to be disqualified, all resources that are put into assessing it are nothing but a waste. Moreover, the value of revealing the truth and keeping public trust in the justice system should be more important than guarding court efficiency, therefore closing the gap and giving forensic science it’s actual probative value in courts seems to be essential. It is beyond the scope of this article to elaborate on how to handle each of the issues pointed out above. Yet there is no doubt two of the recommendations of the Danziger Committee can be extremely helpful in narrowing the gap, given those observations. Establishing independent regulation of forensic science can provide an answer to a considerable part of the issues mentioned. Realistically, it seems the legal world has difficulty dismissing forensic methods upon which it has depended for many years. It also lacks the knowledge, confidence and resources to do so. Establishing a regulator is a good solution because it hands much of the burden over to professional scientists, capable of assessing and improving forensic science, but mainly because it forms a bridge between two worlds – that of law and that of forensic science. Additionally, regulators do not have the same incentives and impediments that are present in the existing structure of the parties to the judicial procedure. Regulator’s considerations would be more neutral than the considerations of adversarial parties, and more scientifically oriented. Regulator would also be expected to resolve some issues concerning accessibility to advanced and up to date scientific materials and promoting appropriate training to the courts and the parties. This leads to another important recommendation of the Danziger Committee, and a possible solution – to promote up to date training for all relevant parties of the criminal legal system. This training would address the limitations and reliability of forensic methods. The importance of education in preventing wrongful convictions is 105 It is worth mentioning that the decision on the weight of the evidence, is a complex decision that is more susceptible to biases (and the judge’s discretion is wider), than the decision on admissibility, that is a binary in nature, and thus less susceptible to biases. This by itself may be seen as supporting addressing the limitations of forensic methods via admissibility rather than to evidentiary weight. See Dekel/Dotan, Different Effect of Biases on Different Types of Decisions – An Experimental Study in Competitive Bidding.

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significant, because as mentioned, many existing legal realist issues are a result of inadequate knowledge. Training can reduce the knowledge gap and improve the ability of jurists to evaluate forensic evidence.106 In addition, educating the legal community would increase awareness of possible weaknesses in forensic evidence. Given that all parties – judges, prosecutors and defense attorneys – all hope to prevent wrongful convictions, this awareness would increase motivation to properly evaluate forensic evidence and take it for what it is. From a legal realist perspective, motivation is certainly something that shouldn’t be underestimated. “A judge, eager to give a decision which will square with his sense of what is fair, but unwilling to break with the traditional rules, will often view the evidence in such a way that the facts’ reported by him, combined with those traditional rules, will justify the result which he announces” Jerome Frank

Bibliography Barzilai, Gad: The King is Not Naked – Why Law is Political, Haifa Law Journal, 2008, pp. 55 – 79. Bush, Mary A./Cooper, Howard I./Dorion, Robert B. J.: Inquiry into the scientific basis for bitemark profiling and arbitrary distortion compensation, Journal of Forensic Sciences Vol. 55, 2010, pp. 976 – 983. Butler, John: The National Commission on Forensic Science and the Organization of Scientific Area Committees, National Institute of Standards and Technology, Gaithersburg, Maryland 2014. Campbell, Anthony: The Fingerprint Inquiry Report, Vol. 1, Scotland 2011. Cook, Walter W.: Scientific Method and the Law, American Bar Association Journal Vol. 13, 1927, pp. 303 – 309. Coplan, Karl S.: Legal Realism, Innate Morality, and the Structural Role of the Supreme Court in the U.S. Constitutional Democracy, Tulane Law Review Vol. 86, 2011. Dagan, Hanoch: The Realistic Conception of the Law, Israel 2009. Dagan, Hanoch: The Real Legacy of American Legal Realism, Oxford Journal of Legal Studies Vol. 38, 2018, pp. 123 – 146. Dekel, Omer/Dotan, Yoav: Different Effect of Biases on Different Types of Decisions – An Experimental Study in Competitive Bidding, 2015.

106

One example is the Cardozo National Forensic College 2022 by the National Association of Criminal Defense Lawyers (NACDL) see https://www.nacdl.org/Content/National-Fo rensic-College; Tel Aviv University Master’s degree specializing in criminal law and forensic sciences https://law.tau.ac.il/Information-for-candidates/msc_no_theses_hahitmacuyot_4178/ ?tab=0.

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Dror, Itiel E./Charlton, David/Péron, Ailsa: Contextual Information Renders Experts Vulnerable to Making Erroneous Identifications, Forensic Science International Vol. 156, 2006, pp. 74 – 78. Dror, Itel E./Hampikian, Greg: Subjectivity and bias in forensic DNA mixture interpretation, Science & Justice Vol. 51, 2011, pp. 204 – 208. Epstein, Lee/Knight, Jack: The Choices Justices Make, Washington D.C. 1998. Fisher III, William W./Horowitz, Morton J./Reed, Thoms A. (eds.): American Legal Realism, Oxford 1993. Frank, Jerome: Law and the Modern Mind, Oxfordshire 1930. Garrett, Brandon L.: Convicting the innocent: where criminal prosecutions go wrong, Cambridge 2011. Holmes, Oliver Wendell: The Common Law, Boston 1881. Hsu, Spencer S.: FBI admits flaws in hair analysis over decades, The Washington Post 2015. Hutcheson Jr., Joseph C.: The Judgment Intuitive: The Function of the “Hunch” in Judicial Decision, Cornell L.Q. Vol. 14, 1929, pp. 274 – 288. Krislov, Samuel: The Supreme Court in the Political Process, New York 1965. Martin, Michael (ed.): Legal Realism: American and Scandinavian, Switzerland 1997. Meterko, Vanessa: Strengths and Limitations of Forensic Science: What DNA Exonerations Have Taught Us and Where to Go From Here, West Virginia Law Review Vol. 119, 2016, pp. 639 – 649. Schauer, Frederick: Thinking Like a Lawyer: A New Introduction to Legal Reasoning, Cambridge 2009. Schubert, Glendon: The Judicial Mind Revisited: Psychometric Analysis of Supreme Court Ideology, New York 1974. Segal, Jeffrey A.: Separation-of-Power Games in the Positive Theory of Congress and Courts, The American Political Science Review Vol. 91, 1997, pp. 28 – 44. Shor, Yaron/Weisner, Sarena: Survey on the Conclusions Drawn on the Same Footwear Marks Obtained in Actual Cases by Several Experts Throughout the World, Journal of Forensic Sciences Vol. 44, 1999, pp. 380 – 384. Smit, Nadine/Morgan, Ruth/Lagnado, David: A systematic analysis of misleading evidence in unsafe rulings in England and Wales, Science & Justice Vol. 58 No. 2, 2018, pp. 128 – 137. Stacey, Robert B.: Report on the Erroneous Fingerprint Individualization in the Madrid Train Bombing Case, Forensic Science Communications Vol. 7(1), 2005, see https://archives.fbi. gov/archives/about-us/lab/forensic-science-communications/fsc/jan2005/special_report/ 2005_special_report.htm (accessed at 29. 1. 2023). Tumonis, Vitalius: Legal Realism & Judicial Decision-Making, Jurisprudence Vol. 19 No. 4, 2012, pp. 1361 – 1382.

OHADA’s Balancing Act Between the Community’s Need for a Harmonized Criminal Law and the Member States’ Hold on National Sovereignty By Justin Monsenepwo*

I. Introduction “When sovereignty appears in international criminal law scholarship, it commonly comes clothed in hat and cape. Awhiff of sulfur permeates the air.”1 Indeed, there is a complex relationship between international or supranational criminal law and States’ sovereignty, the latter often seen as a bête-noire of the international criminal lawyer.2 This complex relationship has invited itself into the harmonization process undertaken by the Organization for the Harmonization of Business Law in Africa (OHADA). In the business law harmonization process in central and western Africa, criminal law is called upon to sanction infringements upon the core interests protected by OHADA law. Criminal law is necessary for the moralization of business life in the OHADA region by ensuring the protection of the interests of business partners and the guarantee of proper performance of the transactions entered into by the economic actors.3 However, the right to punish is a sovereign prerogative of the State.4 Each State is sovereign to define what is permitted or criminally prohibited, in ac-

* Dr. Justin Monsenepwo, LL.M. (Würzburg) is a senior research associate at the University of Johannesburg, South Africa; research assistant at Oxford University, UK; attorney at Wick Phillips Gould Martin, LLP, United States of America; former assistant professor at the Shanghai University for Political Science and Law, China, and former senior research fellow at the Max-Planck-Institute for Comparative and International Private Law, Germany. 1 Cryer, International Criminal Law vs State Sovereignty: Another Round?, European Journal of International Law 16 (2005), p. 979. 2 See King Jr., Nuremberg and Sovereignty, Case Western Reserve Journal of International Law 28 (1996), p. 135 et seq. 3 See Nzouabeth, L’activité de l’entreprise saisie par le droit pénal, Revue C.A.M.E.S./ S.J.P. 2017, p. 189. 4 Diouf, Actes uniformes et droit pénal des États signataires du Traité de l’OHADA: la difficile émergence d’un droit pénal communautaire des affaires dans l’espace OHADA, OHADATA D-05-41 1, 2, 4.

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cordance with the principle nullum crimen, nulla pœna sine lege.5 Hence, it would come as no surprise that the OHADA Member States were reluctant to totally relinquish their sovereignty regarding the determination of conduct constituting a criminal offence and the sanctions to be applied. This article aims at presenting how OHADA has attempted to find a balance between the Community’s need for a harmonized criminal law and the Member States’ need to preserve their national sovereignty. More specifically, after a brief presentation of the goal, the institutions, and the instruments of OHADA (A), this article analyses the shadows and lights of the approach OHADA has taken to create criminal law provisions (B) and to carveout the jurisdiction of the Common Court of Justice and Arbitration in criminal matters (C). 1. Presentation of the Organisation for the Harmonisation of Business Law in Africa (OHADA) OHADA is an African supranational organization which was created on 17 October 1993 by fourteen Central and Western African States6 to increase their attractiveness to foreign investments. As per the Preamble and Article 1 of the Treaty on the Harmonisation of Business Law in Africa (the OHADATreaty), OHADA aims at creating simple, modern, and harmonized business regulations in Africa.7 OHADA has five institutions: (i) The Conference of Heads of State and Government (Conférence des Chefs d’Etat et de Gouvernement),8 (ii) the Council of Ministers (Conseil des Ministres);9 (iii) the Common Court of Justice and Arbitration (the Cour Commune de Justice et d’Arbitrage, hereinafter referred to as CCJA);10 (iv) the Regional Train5 This principle is acknowledged in virtually the laws of all the OHADA Member States. For instance, under Congolese law, see Article 17 of the Constitution of 18. 2. 2006. Under Senegalese law, see Article 4 of the Senegalese Penal Code. 6 The initial fourteen States are Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Côte d’Ivoire, Equatorial Guinea, Gabon, Mali, Niger, Senegal, and Togo. Guinea Bissau, Guinea Conakry, and the Democratic Republic of Congo later became members of the organisation. 7 Issa-Sayegh, Quelques Aspects Techniques de l’intégration juridique: l’exemple des Actes uniformes de l’OHADA, Revue de droit uniforme 1999, p. 20 et seq.; Dickerson, Harmonizing Business Law in Africa: OHADA Calls the Tune, Columbia Journal of Transnational Law 44 (2005), p. 17 et seq. 8 Article 27(1) of the OHADA Treaty. 9 Articles 27(2) to 30 of the OHADA Treaty; Issa-Sayegh/Pougoué/Sawadogo, OHADA: Traité et Actes Uniformes commentés et annotés, p. 51 et seq. 10 Articles 14 to 26, 31, and 32 of the OHADA Treaty; Rules of Procedure of the Common Court of Justice and Arbitration of 18 April 1996 (Règlement de Procédure de la Cour Commune de Justice et d’arbitrage), J.O. OHADA n8 4; 01/11/97, 9 et seq.); Rule n8 001/2014/Cm Amending and Supplementing the Rules of Procedure of the Common Court of Justice and Arbitration of 18 April 1996 (Règlement n8 01/2014/Cm/OHADA Modifiant et Complétant le Règlement de Procédure de la Cour Commune de Justice et d’arbitrage du 18 Avril 1996). See

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ing Center for Legal Officers (Ecole Régionale Supérieure de la Magistrature, hereinafter referred to as ERSUMA);11 and (v) the Permanent Secretariat (Secretariat Permanent).12 The Conference of Heads of State and Government has jurisdiction over all matters in respect of the OHADATreaty.13 The Council of Ministers determines the areas of business law to be harmonized and unanimously adopts Uniform Acts,14 which are the main instruments of OHADA besides the regulations15 and the decisions.16 The Issa-Sayegh/Pougoué/Sawadogo, OHADA: Traité et Actes Uniformes commentés et annotés, p. 77 et seq., p. 1465 et seq. 11 Article 41 of the OHADA Treaty. 12 Article 40 of the OHADA Treaty. 13 Fèviliyé, La Révision du Traité de l’OHADA, Revue Congolaise de Droit et des Affaires 1 (2009), p. 40 et seq. 14 Uniform Acts are unified legal provisions that regulate a specific area of business law. See Article 2 of the OHADA Treaty for an indication of the areas which the concept of “business law” encompass under OHADA law. In its meeting which was held in Bangui in March 2001, the OHADA Council of Ministers decided to extend the list of areas that could be harmonized by OHADA. Pursuant to that resolution, the harmonization program now embraces: “competition law, banking law, intellectual property law, contract law and the law of evidence” (J.O. OHADA n8 12, 2003, 6). The text of the Conclusions of the 2002 meeting of the OHADA Council is available at http://www.idcafrique.org/sites/default/files/journaux_offi ciels/12%20journal_officiel_n_12_0.pdf (accessed 10. 12. 2022). As of January 2019, the Council of Ministers has adopted ten uniform Acts: (i) the Uniform Act on the Law of Commercial Companies and Economic Interest Groups (Uniform Act on Commercial Companies), which entered into force on 1 January 1998 (J.O. OHADA n8 2, 1 January 1997, 1 et seq.). This Uniform Act was revised on 5. 5. 2014; (ii) the Uniform Act on General Commercial Law, which entered into force on 1 January 1998 (J.O. OHADA n823, 15. 2. 2011, 1 et seq.). This Uniform Act was revised on 15. 5. 2010; (iii) the Uniform Act on Secured Transactions, which entered into force on 1 January 1998 (J.O. OHADA n8 22, 15. 2. 2011). This Uniform Act was also revised on 15. 12. 2010; (iv) the Uniform Act on Simplified Procedures for Recovery and Enforcement, which entered into force on 10. 7. 1998 (J.O. OHADA n8 6, 1. 6. 1998, 1 et seq.); (v) the Uniform Act on Collective Procedures for the Clearing of Debts (the Uniform Act on Collective Procedures), which entered into force on 1 January 1999 (J.O. OHADA n8 7, 1. 7. 1998, 1 et seq.); (vi) the Uniform Act on Arbitration Law, which was adopted on 23. 11. 2017 (J.O. OHADA, numéro spécial, 15. 12. 2017, 15 et seq.). This Uniform Act has replaced the Uniform Act on Arbitration Law of 11 March 1999; (vii) the Uniform Act on the Organisation and Harmonisation of Accounting of Companies, which was revised on 26 January 2017 (J.O. n8 10, 20. 11. 2000, 1 et seq.); (viii) the Uniform Act on Contracts of Carriage of Goods by Road of 22 March 2003 (J.O. OHADA n8 13, 31. 7. 2003, 3 et seq.) which entered into force on 1 January 2004; (ix) the Uniform Act on Cooperatives of 15. 12. 2010, which entered into force on 16. 5. 2011 (J.O. OHADA n8 23, 15. 2. 2011); and (x) the Uniform Act on Mediation, which was adopted on 23. 11. 2017 (J.O. OHADA numéro spécial, 15. 12. 2017, 5 et seq.). 15 Regulations are adopted by the Council of Ministers to complete and to implement the OHADA Treaty (Article 4 of the OHADA Treaty). They are of the same nature as the OHADA Treaty (Issa-Sayegh/Lohoues-Oble, OHADA – Harmonisation du droit des affaires, p. 112 et seq). They are directly applicable in all Member States. As of January 2018, the Council has adopted the following regulations: (i) Rules of Procedure of the Common Court of Justice and Arbitration of 18 April 1996, as amended by Rule No. 001/2014/CM of 30 January 2014; (ii)

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Permanent Secretariat is the executive body of OHADA. It is directed by a Permanent Secretary, who represents OHADA and assists the Council of Ministers. Attached to the Permanent Secretary of OHADA, ERSUMA is a training and documentation center on OHADA law. As to the CCJA, it has four main functions. First, it controls the consistency of the drafts of the Uniform Acts with the OHADA Treaty before the Council of Ministers adopts them. Secondly, it plays the role of an arbitration center. As such, it supervises the institutional arbitration pursuant to the OHADATreaty and the Arbitration Rules of Procedure of the CCJA. Thirdly, the CCJA may be consulted by any Member State, the Council of Ministers, or any national court for the interpretation of the OHADATreaty, the regulations, the Uniform Acts, and the decisions of OHADA. Fourthly, the CCJA rules on decisions in civil and commercial matters which are taken by appellate courts of the Member States in all matters pertaining to the application of OHADA law.17 2. OHADA’s Balancing Act in the Creation of Criminal Law Provisions a) The Compromise in Article 5(2) of the OHADA Treaty To find a balance between the need to criminalize dangerous infringements upon the core interests protected by OHADA law on the one hand, and the preservation of the Member States’ sovereignty in criminal law on the other hand, Article 5 of the OHADA Treaty provides: “The acts adopted for the adoption of the common rules provided for in Article 1 of this Treaty shall be called ‘uniform acts’. Uniform Acts may include provisions on criminal law. The States Parties undertake to determine the criminal penalties incurred [our emphasis]”.

This provision allows OHADA to harmonize the incriminations in the Uniform Acts, while leaving to the Member States the charge of determining the corresponding criminal sanctions in national legislations.18 As an illustration, Article 890 of the Uniform Act on Commercial Companies provides that any company director who, even in the absence of any dividend distribution, knowingly publishes or presents the Arbitration Rules of the Common Court of Justice and Arbitration as amended on 23. 11. 2017; the Financial Regulations of the OHADA Institutions; and (iii) the OHADA Staff Regulations. 16 Diedhou, L’article 10 du Traité de l’OHADA: quelle portée abrogatoire et supranationale?, Revue de droit uniforme XII (2007), p. 265 et seq.; Issa-Sayegh, La portée abrogatoire des Actes Uniformes de l’OHADA sur le droit interne des Etats-Parties, Revue Burkinabè de droit 40 (2001), p. 57 et seq.; Abarchi, La Supranationalité OHADA, Revue Burkinabè de droit 2000, p. 7 et seq. 17 Linhart, Internationales Einheitsrecht und einheitliche Auslegung, p. 137. 18 Sockeng, Droit pénal des affaires OHADA; Nzouabeth, in: Gbaguidi/Djogbenou/Agbassa (eds.), Les horizons du droit OHADA. Mélanges en l’honneur du Professeur Filiga Michel Sawadogo, p. 521 et seq.

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to the shareholders or associates financial statements which do not give a true and fair view of the company’s operations, financial situation, assets, and liabilities at the end of each financial year, with a view to conceal the true situation of the company, shall be liable to a criminal sanction. This provision clearly determines the actus reus (presentation to the shareholders or associates of financial statements which do not give a true and fair view of the company’s operations, financial situation, assets, and liabilities at the end of each financial year) and the mens rea (knowingly, with a view to conceal the true situation of the company). However, Article 890 of the Uniform Act on Commercial Companies does not determine the corresponding criminal sanction. As per Article 5(2) of the OHADATreaty, it is incumbent upon each Member State to adopt a legislation that would specifically determine the sanction which corresponds to the incrimination in Article 890 of the Uniform Act on Commercial Companies. In that regard, Cameroon has enacted Act No. 2003-008 of 10 July 2003 on the punishment of offences contained in certain OHADA uniform acts. Similarly, Senegal adopted in 1998 a legislation to set the criminal sanctions for the offenses contained in the Uniform Act on Commercial Company.19 b) Criminal Law Provisions Found in the Uniform Acts Seven of the ten Uniform Acts provide for incriminations: (i) the Uniform Acts the Uniform Act on General Commercial Law; (ii) the Uniform Act on Secured Transactions; (iii) the Uniform Act on Commercial Companies; (iv) the Uniform Act on Simplified Procedures for Recovery and Enforcement; (v) the Uniform Act on Collective Procedures; (vi) the Uniform Act on Accounting Law; and (vii) the Uniform Act on Cooperative. Approximately thirty-nine provisions of these instruments create incriminations. Most numerous of these incriminations (about fifteen) result from the Uniform Act on Commercial Companies. Article 65 of the Uniform Act on Secured Transactions provides that the fraudulent registration of a security interest, or a registration that contains inaccurate information or data in bad faith is punishable by the penalties provided for by the national criminal law. Likewise, Article 184(3) makes it an offence, subject to the criminal sanctions provided for by the national law of each Member State, for the lessee or any person who, by fraudulent means, totally or partially deprives the lessor of his lien on the movable property in the leased premises. Further, Article 69(1) of the Uniform Act on General Commercial Law provides that failure to comply with the formalities prescribed for the trader or entrepreneur are subject to criminal sanctions to be adopted by the Member States. More specifically, this concerns cases of failure to register, to register, to cancel or when the accomplishment of these formalities related to the Trade and Personal Property Credit Register (Régistre du Commerce et du Crédit Mobilier) is tainted by fraud. Article 140 of the same Uniform Act makes 19 Law No. 98-22 of 26 March 1998, JORS No. 5798 of 25 April 1998, p. 303. Please note that the subsection B.4 of this article offers a detailed tour d’horizon of the national legislations determining the corresponding criminal sanctions.

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it an offence for the tenant-manager not to disclose his status, the violation of this requirement being punishable by the national criminal law. The Uniform Act on Commercial Companies includes the largest number of criminal law provisions. Firstly, with regard to the formation of companies, there are criminal provisions regarding the failure to register a company (Article 886), the simulation of subscriptions and payments (Article 887, 38 and 48), false advertising (Article 887, 28 and 48) as well as the overvaluation of contributions in kind (Article 887, 48). Secondly, with regard to the management, administration, and direction of companies, there are criminal law provisions as to the trading in shares which are not fully paid up or in cash shares for which the payment of one quarter of the nominal value has not been made (Art. 888), the distribution of fictitious dividends (Art. 889), the publication or presentation of false summary financial statements (Art. 890), the failure to file or late filing of summary financial statements with the Trade and Personal Property Credit Register (Article 890-1), the misuse of the company’s assets and credit (Article 891), the failure to publicize the company’s deeds and documents (Article 891-1), the failure to contribute to a pre-existing company or to deregister a company or an individual after a period of two years (Article 891-2). Thirdly, in the context of the organization of general assemblies, there are offences related to the obstruction of participation in a general meeting (Article 891-3) and the failure to draw up the minutes of general meetings (Article 892). Fourthly, in the context of changes in the capital of public limited companies, there are criminal law provisions regarding the failure to comply with the formalities relating to the increase in capital (Article 893), the issue of shares in a limited liability company without paying up half of their nominal value (Article 893-1), hindering the exercise by shareholders of their preferential subscription right in the event of an increase in capital (Article 894), and the fraudulent suppression of preferential subscription rights (Article 895). Fifthly, as to the reduction of capital, there is an offence regarding the fraudulent reduction of the share capital (Article 896). Sixthly, in the context of the audit of companies, are considered as offences the failure to appoint or convene the auditors (Article 897), the irregular exercise of the functions of the auditors (Article 898), the dissemination or confirmation of false information on the situation of the company and failure to denounce criminal acts to the Public Prosecutor’s Office (Article 899), and the obstruction of the audits of the auditors (Article 900). Seventhly, regarding the dissolution of companies, there are criminal law provisions regarding the failure to convene an extraordinary general assembly and to publish the dissolution (Article 901). Eighthly, in the context of the liquidation of companies, there are offences regarding the failure to publicize the appointment of the liquidator, the failure to convene the partners and failure to deposit the final accounts with the Trade and Personal Property Credit Register (Article 902), the failure to inform the partners due to concealed and irregular management of the judicial liquidation (Article 903), the misuse of the assets and credit of the company in liquidation and irregular transfer of its assets (Article 904). Ninthly, in the case of a public offering, there is a provision regarding the irregular issue and transfer of securities (Article 905).

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Article 387 of the Uniform Act on Cooperative Companies prohibits the usurpation of the names of cooperative companies, union of cooperative companies, federation of cooperative companies or confederation of cooperative companies. It also refers to the provisions of Articles 886 to 905 of the Uniform Act on Commercial. Furthermore, the Uniform Act on the Collective Procedures creates offences regarding the banqueroute simple (Article 228), the banqueroute frauduleuse (Article 229), actions assimilated to the banqueroute (Articles 230 to 233, and 240), as well as other breaches affecting the liquidation procedure committed by third parties (Article 240), allies and close relatives of the debtor (Article 241), as well as the judicial representative (Article 243). Lastly, Article 111 of the Uniform Act on Accounting Law criminalizes failures not only to keep inventories, prepare annual financial statements, the management report, and the company balance sheet, but also to communicate false financial statements. c) Shadows and Lights of the Solution Enshrined in Article 5(2) of the OHADA Treaty First, the “legislative compromise”20 in Article 5 of the OHADA Treaty allows to preserve the sovereignty of the OHADA Member States in the criminal area. As indicated above, the OHADA Member States were reluctant to confer their sovereignty in criminal matters to a supranational body.21 Tchanchou and Akué contend that criminal law is a “reflection of national identity and values” resulting from the internal exercise of state sovereignty22.” Criminal law, by virtue of its specificity, generally appears to be one of the bastions de résistance of domestic legal systems against the penetration of international law.23 Moreover, the harmonization of criminal sanctions at the Community level could prove unproductive in view of the unequal level of development of the OHADA Member States.24 Moreover, the effective enforcement of criminal sanctions requires that the rational behind such punishments be as close as

20 Sockeng, in: ERSUMA (ed.), Recueil des cours de l’ERSUMA. Droit pénal des affaires 2008 – 2014, p. 140 et seq. 21 Ndiaye, L’OHADA et la problématique de l’harmonisation du droit pénal des affaires: bilan et perspectives d’un modèle de politique criminelle communautaire, OHADATA D-1269 1, 3; Eloi, Uniformisation et droit pénal: esquisse d’un droit pénal des affaires dans l’espace OHADA, Revue Internationale de Droit Comparé 63 (2011), p. 661 et seq.; Altamimi, La condition de la double incrimination en droit pénal international, p. 3. 22 Tchantchou/Akouété Akué, L’état du droit pénal dans l’espace OHADA, Revue de l’ERSUMA 2011, p. 25. 23 Kitio, Le contentieux du droit pénal des affaires devant les hautes juridictions nationales et devant la CCJA, Revue de l’ERSUMA 2013, p. 309 et seq. 24 Anoukaha/Cisse/Diouf/Nguebou Toukam, OHADA Sociétés commerciales et G.I.E., p. 235; Olinga, Réflexion sur le droit international, la hiérarchie des normes et l’office du juge au Cameroun, Juridis Périodique 63 (2005), p. 3 et seq.

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possible to the citizen because “[criminal sanctions] must reflect the deepest aspirations and the world view of the addressees of criminal law provisions.”25 However, the provision in Article 5(2) of the OHADA Treaty gives rise to several difficulties. First, in general, the reference of a legislative text to a subsequent law is fraught with legal risks since it seriously delays the effective implementation of the norm.26 This is particularly the case with the implementation of OHADA’s criminal law. Indeed, the language of Article 5(2) of the OHAD Treaty and in the different criminal law provision of the Uniform Acts does not create an actual obligation for the OHADA Member States to adopt the corresponding criminal sanctions. Therefore, almost twenty-seven years after the creation of the Organization and nearly twenty-five years after the adoption of the first Uniform Acts, only nine of the seventeen Member States have enacted national legislations to determine the sanctions corresponding to the criminal law provisions contained in the Uniform Acts.27 Consequently, for most the OHADA Member States, the criminal law provisions enshrined in the Uniform Acts are ineffective.28 This results in a breach of equality between individuals in the OHADA region, depending on their country of origin, and a framework conducive to the deployment of cross-border criminal networks. Furthermore, the disharmony characterizing OHADA criminal law leads to the development of forum shopping in Western and Central Africa, since certain investors and economic circles may be looking for “criminal havens” in the OHADA region.29 In sum, the OHADA criminal law à la carte created by Article 5 of the OHADA Treaty is a factor of instability and disparity likely to undermine OHADA’s legal integration process. Moreover, it has been mentioned above that pursuant to Article 5(2) of the OHADATreaty, the Uniform Acts’ criminal provisions refer to sanctions to be adopted by each Member State. However, more specifically, the Uniform Acts refer to either criminal sanctions to be created30, or a pre-existing criminal sanction under na25 Kitio, Le contentieux du droit pénal des affaires devant les hautes juridictions nationales et devant la CCJA, Revue de l’ERSUMA 2013, p. 309. 26 Premier Ministre, Conseil d’État, Guide de légistique, 3e édition mise à jour, La documentation française 2017, p. 31. 27 These are the following states: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Gabon, Guinea, Niger, and Senegal. This is further analyzed in the next undersection. 28 See Issa-Sayegh/Pougoué, L’OHADA: défis, problèmes et tentatives de solutions, p. 467; Nzouabeth, in: Gbaguidi/Djogbenou/Agbassa (eds.), Les horizons du droit OHADA: Mélanges en l’honneur du Professeur Filiga Michel Sawadogo, p. 522; Loukakou, in: Puigelier, La diversité du droit. Mélanges en l’honneur de Jerry Sainte-Rose, p. 825. 29 Anoukaha/Cisse/Diouf/Nguebou Toukam, OHADA – Sociétés commerciales et G.I.E, p. 237. 30 For instance, under Article 891-3 of the Uniform Act on Commercial Companies, any person who knowingly prevents a shareholder or partner from participating in a general assembly is liable to a criminal sanction. Similarly, under Article 893-1 of the same Uniform Act, the managers of a limited liability company who, at the time of a capital increase, have

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tional law. In the latter case, the Member States are limited in the determination of the corresponding criminal sanctions since the Uniform Act itself refers to a specific preexisting sanction under national law. For example, Article 97 of the Uniform Act on Secured Transactions refers to the sanction under national law for the crime of breach of trust (abus de confiance). It provides: “The debtor may not sell all or part of the pledged equipment without the prior agreement of the pledgee or, failing that, without judicial authorization. In the absence of such agreement or judicial authorization, if the pledged equipment is sold, the debt becomes immediately due and payable. If the debt is not paid, the debtor shall be subject to judicial reorganization or liquidation of property proceedings if such proceedings are applicable to him. The incapacities and disqualifications of personal bankruptcy and the penalties provided for the offence of breach of trust apply to the debtor or to any person who, by fraudulent actions, deprives the pledgee of his rights or diminishes them [our emphasis].”

While a reference to a criminal sanction to be created does not, in principle, present serious difficulties, the same cannot be said for a reference to an existing text. Indeed, it is sometimes impossible to determine with precision the norm of sanction. Article 244 of the Uniform Act on Collective Procedures for the settlement of liabilities provided with an excellent illustration. It criminalized certain conducts attributable to creditors during bankruptcy proceedings. It provided: “A creditor shall be punished by the penalties provided for by the criminal law in force in each State Party for offences committed to the detriment of an incompetent person [our emphasis] if he has: – stipulated with the debtor or with any person, particular advantages in exchange for his vote in the deliberations of the estate; – makes a special agreement from which an advantage would result in his favor and to the detriment of the debtor’s assets from the day of the decision to open the collective proceedings.”

The applicable sanction was therefore the penalties provided for by the criminal law in force in each Member State in respect of “offenses committed to the detriment of a person lacking legal capacity”. However, under the laws of virtually all the Member States, there are various “offences against the interests of a person lacking legal capacity”. These include exposing or neglecting children or persons lacking legal capacity,31 or abusing a minor32. Thus, even within a single Member State, courts could give different interpretations to the term “offences against the interests of a person lacking legal capacity”. In reaction, the 2015 revision of the Uniform Act on Collecissued shares without these new shares having been paid up by at least half of their nominal value at the time of subscription, incur a criminal sanction. Likewise, Article 65 of the Uniform Act on Secured Transactions provides that any registration of a security interest made by fraud, or bearing inaccurate entries made in bad faith, is punishable by the penalties provided for by the national criminal law. 31 See Article 344 of the Senegalese Criminal Code. 32 See Article 381 of the Senegalese Criminal Code.

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tive Procedures removed any mention of the term “offences against the interests of a person lacking legal capacity”. In lieu of referring to a pre-existing criminal sanction under national law, it now points to criminal sanctions to be created: “A creditor shall be punished by the penalties provided for by the criminal law in force in each Member State [our emphasis] if he has committed any of the following offences, except as otherwise provided in this Uniform Act: – stipulated with the debtor or with any person, particular advantages in exchange for his vote in the deliberations of the estate; – makes a special agreement from which an advantage would result in his favor and to the detriment of the debtor’s assets from the day of the decision to open the collective proceedings.”

d) Tour d’horizon of the National Legislations Determining the Corresponding Criminal Sanctions As indicated above, as of February 2023, only nine of the seventeen Member States have enacted national legislations to the criminal law provisions contained in the Uniform Acts.33 A close examination of the texts adopted by these States shows that they have only partially taken into account the different standards of criminal conduct resulting from the Uniform Acts. For instance, Senegalese law n8 98-22 of 26 March 1998 Relating to the Criminal Sanctions Applicable to the Offences Contained in the Uniform Act Relating to the Law of Commercial Companies and Economic Interest Groups34 is limited to the criminal law provisions contained in the Uniform Act on Commercial Companies. Similarly, Cameroon’s Law No. 2003/008 of 10 July 2003 on the repression of offences contained in certain OHADA Uniform Acts35 is limited to the criminal law provisions contained in three Uniform Acts, namely the Uniform Act on General Commercial Law, the Uniform Act on Commercial Companies, and the Uniform Act on Collective Procedures. Hence, it does not apply to the incriminations contained in the other four other Uniform Acts mentioned above. However, Benin’s Criminal Code of 28 December 2018 is more comprehensive; nevertheless, it contains omissions regarding the Uniform Act on Enforcement Procedures. The Criminal Code of Gabon36 is the most comprehensive of all the national legislations adopted so far. It covers, the offences provided 33

These are Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Gabon, Guinea, Niger, and Senegal. 34 Loi sénégalaise n8 98-22 du 26 mars 1998 portant sur les sanctions pénales applicables aux infractions contenues dans l’acte uniforme relatif aux droits des sociétés commerciales et du groupement d’intérêt économique, Journal officiel de la République du Sénégal n8 5798 du 25 avril 1998. 35 Loi camerounaise n8 2003/008 du 10 juillet 2003 portant répression des infractions contenues dans certains Actes uniformes OHADA. 36 Act No. 042/2018 of 5. 7. 2019 on the Criminal Code of the Gabonese Republic.

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for by six of the seven Uniform Acts which contain incriminations. Only the Uniform Act on General Commercial Law has not been considered by this act. The penalties imposed by these national legislations are often very different from one country to another. For example, Article 761-2 of Benin’s Criminal Code punishes the distribution of fictitious dividends, resulting from Article 889 of the AUSCGIE, with a prison sentence of 3 to 10 years and a fine of 1 to 5 million CFA, while Article 7 of Cameroon’s Act n8 2003/008 punishes the distribution of fictitious dividends with a prison sentence of one to five years and a fine of 1 to 5 million francs. For the same offence, Article 520 of the Gabonese Criminal Code provides for a prison sentence of up to five years and a fine of up to 10 million CFA, while Article 4 of Senegal’s Act n8 98-22 provides for a prison sentence of one to five years and a fine of 100,000 to 5 million CFA. Moreover, with regard to the offence of abuse of corporate assets, referred to in Article 891 of the AUSCGIE, Article 767 of the Beninese Criminal Code provides for a prison sentence of five to ten years and a fine between 5 million and 20 million CFA, while Article 9 of Cameroon’s Act n8 2003/008 punishes the same offence with a prison sentence between one and five years and a fine between 5 million and 20 million CFA. For the same offence, Article 522 of Gabon’s Criminal Code provides for a prison sentence of up to five years and a fine of up to 10 million CFA, while Article 6 of Senegal’s Act n8 98-22 provides for a prison sentence of one to five years and a fine of 100,000 to 5 million CFA. 3. OHADA’s Balancing Act in the Jurisdiction of the CCJA in Criminal Commercial Matters The sovereignty of the Member States in criminal matters is not limited to the mere determination of the criminal provisions. It also extends to jurisdiction of its courts. Therefore, Article 14(3) of the OHADA Treaty limit the jurisdiction of the CCJA in criminal commercial matters: “On appeal, the Court shall rule on the decisions rendered by the Courts of Appeal of the Contracting States in all cases raising questions relating to the application of the Uniform Acts and the regulations provided for in the present Treaty, with the exception of decisions applying criminal sanctions [our emphasis].”

Some authors have deduced from the language of Article 14(3) of the OHADA Treaty that the CCJA does not have jurisdiction in criminal matters.37 In contrast, other authors have taken a different view, arguing that Article 14(3) excludes cases involving “criminal sanctions”. Hence, they contend that the Court must retain jurisdiction when the appeal is based on the violation of the incrimination provision contained in a Uniform Act.38 This interpretation aims to avoid having as many in37

Sockeng, in: ERSUMA (ed.), Recueil des cours de l’ERSUMA. Droit pénal des affaires OHADA 2008 – 2014, p. 144; Pougoué, Présentation générale et procédure en OHADA, p. 15. 38 Diouf, Actes uniformes et droit pénal des États signataires du Traité de l’OHADA: la difficile émergence d’un droit pénal communautaire des affaires dans l’espace OHADA, p. 13.

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terpretations of the Uniform Acts’ provisions as there are Member States. The CCJA is responsible for ensuring the harmonization of the interpretation and application of the Uniform Acts (including the provisions creating criminal offences),39 while the national judge is responsible only for applying the sanction existing under national law. As a consequence, this view argues that the CCJA has sole jurisdiction to rule on the characterization of facts falling within the scope of the OHADA offences.40 However, it is my contention that this interpretation would give rise to several difficulties. First, it is not conceivable to have a criminal decision dealing solely with the incrimination. In the rules of criminal procedure widely shared by the OHADA Member States, the decision on the characterization of facts falling within the scope of an incrimination is not usually separated from the decision on conviction. Their interest for a convicted person in appealing to a highest court lies in the modification or deletion of their criminal conviction. Secondly, Article 14(5) of the OHADATreaty provides that if the CCJA rules that a national court’s decision was wrong under OHADA law, the CCJA rules on the merits of the case. In the context of this discussion, extending the jurisdiction of the CCJA to criminal matters would mean that the Court could potentially find itself in a situation in which it would have to rule on the merits of a criminal law case, and, therefore, apply criminal sanctions. Such an outcome would not be in line with the text and the rational of Articles 5 and 14(3) of the OHADA Treaty. Thirdly, this interpretation is not in line with the position of the CCJA itself on this matter, which is that cases involving criminal law are expressly and altogether excluded from its jurisdiction under Article 14(3) of the OHADA Treaty. Indeed, in a 2012 decision,41 the CCJA ruled that it “cannot hear, by way of an appeal in cassation, cases which, although raising questions relating to the application of the Uniform Acts and Regulations provided for in the Treaty, relate to decisions applying criminal sanctions”. As an alternative, the CCJA could have jurisdiction to answer a national court’s question as to the interpretation of an incrimination in a Uniform Act by way of consultation. Article 14(2) of the Treaty provides: “The Court may be consulted by any State Party or by the Council of Ministers on any matter falling within the scope of the preceding paragraph. The same right to request the advisory opinion of the Court is recognized to the national jurisdictions seized in application of article 13 above.”42 However, the parties may not seize the CCJA under Article 14(1) of the OHADA Treaty. The right to request the advisory opinion of the CCJA is recognized solely 39

Article 14(1) of the OHADA Treaty provides: “The Common Court of Justice and Arbitration shall ensure the common interpretation and application of the Treaty as well as of the regulations taken for its application, the uniform acts and the decisions.” 40 Kitio, Le contentieux du droit pénal des affaires devant les hautes juridictions nationales et devant la CCJA, Revue de l’ERSUMA 2013, p. 309 et seq. 41 Etondé Ekoto Edouard Nathanaël v. Port Autonome de Douala and the Public Prosecutor’s Office, Decision no. 053/2012 of 7. 6. 2012, OHADATA No. J-14-79. 42 Article 13 of the OHADA Treaty provides: “Litigation relating to application of the uniform acts is settled in first instance and on appeal by the courts of the Contracting States.”

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to the Member States, the Council of Ministers, and the national courts. Besides, a convicted person would have no concrete interest in requesting an advisory opinion of the CCJA because the CCJA’s advisory opinion in such a case would not be binding on the national courts. By not following the opinion of the CCJA, the national courts would not be exposed to any risk of seeing their decision being overturned since the national highest courts (and not the CCJA) have last appeal jurisdiction in criminal matters pursuant to Article 14(3) of the OHADA Treaty.

II. Conclusion In conclusion, the OHADA Member States never technically envisaged the establishment of an OHADA criminal business law. This explains why Article 2 of OHADA Treaty, which lists the areas subject to the harmonization project, does not mention business criminal law. It can be legitimately inferred from the approach taken in Article 5(2) of the OHADATreaty that OHADA intended that the offences it would create in its Uniform Acts would coexist with a system of criminal law rules specific to each Member State. Therefore, for the incriminations they created, the Uniform Acts referred to national criminal legislations. Alas, one can only lament the fact that most Member States have not fulfilled the commitment they made to determine the criminal sanctions in response to the incriminations laid down by the Uniform Acts. The failure of many OHADA Member States to produce the sanction in response to the incriminations resulting from the Uniform Acts logically renders the penal regulation of these community texts ineffective. Indeed, the principle nullum crimen, nulla poena sine lege includes both incriminations and sanctions. The sanction has its own function in this overall scheme: It is the sanction that creates the offence. The effectiveness of the incrimination is conditioned by the existence of a criminal sanction (nullum crimen sine poena legali).43 The sanction is so essential to the reality of the criminal rule that in its absence the incrimination is worth no more than a mere recommendation and an imperfect law. It is therefore suggested that OHADA encourages its Member States to adopt the required criminal sanctions. This will allow to modernize the Member States’ domestic repressive systems, to combat unethical commercial practices in western and central Africa, and to facilitate the judicial cooperation between the States parties to the OHADA Treaty.

Bibliography Abarchi, Djibril: La Supranationalité OHADA, Revue Burkinabè de droit 37, 2000, pp. 7 – 27. Altamimi, Mohammad: La condition de la double incrimination en droit pénal international, Thèse Droit, Poitiers 2018. 43

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Anoukaha, François/Cisse, Abdoullah/Diouf, N’diaw/Nguebou Toukam, Josette: OHADA Sociétés commerciales et G.I.E., Juriscope, Collection droit uniforme, Poitiers, Brussels 2002. Cryer, Robert: International Criminal Law vs State Sovereignty: Another Round?, European Journal of International Law Vol. 16, 2005, pp. 979 – 1000. Dickerson, Claire Moore: Harmonizing Business Law in Africa: OHADA Calls the Tune, Columbia Journal of Transnational Law Vol. 44, 2005, pp. 17 – 73. Diedhou, Parfait: L’article 10 du Traité de l’OHADA: quelle portée abrogatoire et supranationale?, Revue de droit uniforme (UNIDROIT), Vol. XII, 2007, pp. 265 – 283. Diouf, Ndiaw: Actes uniformes et droit pénal des États signataires du Traité de l’OHADA: la difficile émergence d’un droit pénal communautaire des affaires dans l’espace OHADA, OHADATA D-05-41 1, 2. Eloi, Yao K.: Uniformisation et droit pénal: esquisse d’un droit pénal des affaires dans l’espace OHADA, Revue Internationale de Droit Comparé Vol. 63, 2011, pp. 661 – 696. Fèviliyé, Inès: La Révision du Traité de l’OHADA, Revue Congolaise de Droit et des Affaires 1, 2009, p. 35 et seq. Issa-Sayegh, Joseph: La portée abrogatoire des Actes Uniformes de l’OHADA sur le droit interne des Etats-Parties, Revue Burkinabè de Droit Vol. 40, 2001, pp. 51 – 61. Issa-Sayegh, Joseph: Quelques Aspects Techniques de l’intégration juridique: l’exemple des Actes uniformes de l’OHADA, Uniform Law Review/Revue de droit uniforme, 1999, pp. 5 – 34. Issa-Sayegh, Joseph/Lohoues-Oble, Jacqueline: OHADA – Harmonisation du droit des affaires, Collection Droit uniforme africain, Bruxelles 2002, p. 112 et seq. Issa-Sayegh, Joseph/Pougoué, Paul-Gérard: L’OHADA: défis, problèmes et tentatives de solutions, Revue de droit uniforme, Vol. XIII, 2008, pp. 455 – 476. Issa-Sayegh, Joseph/Pougoué, Paul-Gérard/Sawadogo, Filiga Michel: OHADA: Traité et Actes Uniformes commentés et annotés, Mayenne 2014. King Jr., Henry T.: Nuremberg and Sovereignty, Case Western Reserve Journal of International Law Vol. 28, 1996, pp. 135 – 140. Kitio, Édouard: Le contentieux du droit pénal des affaires devant les hautes juridictions nationales et devant la CCJA, Revue de l’ERSUMA 2, 2013, pp. 309 – 328. Linhart, Karin: Internationales Einheitsrecht und einheitliche Auslegung, Heidelberg 2005. Loukakou, Didier: La diversité des sources du droit et de quelques implications sur le processus d’intégration juridique dans l’espace OHADA, in: Puigelier, Cathérine, La diversité du droit. Mélanges en l’honneur de Jerry Sainte-Rose, Bruxelles 2012, pp. 821 – 841. Ndiaye, Jean-Moïse: L’OHADA et la problématique de l’harmonisation du droit pénal des affaires: bilan et perspectives d’un modèle de politique criminelle communautaire, OHADATA D-12-69, 1. Nzouabeth, Dieunedort: L’activité de l’entreprise saisie par le droit pénal, Revue C.A.M.E.S./ S.J.P. n. 001, 2017, p. 187 et seq.

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Nzouabeth, Dieunedort: La légalité criminelle malmenée dans le droit OHADA, in: Gbaguidi, Noel A./Djogbenou, Joseph/Agbassa, Eric Montcho (eds.), Les horizons du droit OHADA: Mélanges en l’honneur du Professeur Filiga Michel Sawadogo, Cotonou 2018, pp. 521 – 546. Olinga, Alain-Didier: Réflexion sur le droit international, la hiérarchie des normes et l’office du juge au Cameroun, Juridis Périodique Vol. 63, 2005, pp. 3 – 18. Pougoué, Paul-Gérard: Présentation générale et procédure en OHADA, Yaoundé 1998. Sockeng, Roger: Droit pénal des affaires OHADA, Douala 2007. Sockeng, Roger: Le contentieux pénal des affaires OHADA – Les péripéties de la naissance d’un droit pénal des affaires OHADA, in: ERSUMA (ed.): Recueil des cours de l’ERSUMA. Droit pénal des affaires 2008 – 2014, Porto-Novo 2015, p. 140 et seq. Squirawski, Claire Ballot: Les éléments constitutifs, essai sur les composantes de l’infraction, Université Paris-Sud Saclay 2017. Tchantchou, Henri/Akouété Akué, Michel: L’état du droit pénal dans l’espace OHADA, Revue de l’ERSUMA n8 spécial 2011, p. 20 et seq.

Eyewitness Identification in Israel: A Theoretical and Comparative Perspective By Rottem Rosenberg Rubins*

I. Introduction Erroneous eyewitness identification is widely considered to be the number one cause of wrongful convictions.1 Despite this fact, and notwithstanding the vast scientific research demonstrating that human beings generally do poorly when attempting to identify unfamiliar2 perpetrators,3 eyewitness identification continues to serve as the main grounds for conviction in numerous countries. In the criminal law of many jurisdictions, the simple identification of a suspect is sufficient to establish that the person is the perpetrator of the crime in question, without any need for corroborating evidence.4 Israel is no different, with its Supreme Court ruling that the

* Dr. Rottem Rosenberg Rubins is an Assistant Professor at the College of Law and Business in Ramat Gan; adjunct professor, Tel Aviv University Faculty of Law; coordinator of the Israeli public committee for preventing and amending wrongful convictions, headed by former Supreme Court Justice Prof. Yoram Danziger. 1 See, e. g., Garrett, Convicting the Innocent – Where Criminal Prosecutions Go Wrong, which found that 76 % of the first 250 convictions overturned by the American Innocence Project relied, inter alia, on the misidentification by an eyewitness. 2 Research shows that there is a vast difference between the human ability to identify familiar faces, which is generally high, and the ability to identify unfamiliar faces. See, e. g., Bruce/Young, In the Eye of the Beholder: The Science of Face Perception; Megreya/Burton, Memory & Cognition 34 (2006), p. 865 et seq. 3 For example, in one study, participants were asked to identify a perpetrator from a mocklineup, in which the “true” perpetrator, who had committed the mock crime, was not present. Some error rates (namely, participants who chose an innocent suspect) reached 70 %. See Lindsay/Wells, Law and Human Behavior 4 (1980), p. 303 et. seq. In another study, participants achieved a 57 % success rate in a simultaneous lineup and only a 50 % success rate in a sequential lineup. See Steblay et al., Law and Human Behavior 25 (2001), p. 459 et. seq. A meta-analysis found that in field studies, nearly one in four witnesses (23.7 %) who was shown a lineup selected an innocent filler and that among those who made an identification, over one third (36.8 %) identified a known-innocent filler. In laboratory eyewitness-identification studies, filler identification rates averaged 21.2 % when the perpetrator was present and 34.6 % when the perpetrator was absent. See Wells, Law and Human Behavior 44 (2020), p. 3 et seq. 4 Sangero, Albany Law Review 83 (2020), p. 931 et seq.

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identification of a suspect via a police lineup,5 or even via a mugshot viewing,6 may suffice for conviction.7 Such rulings, however, are at odds with the manner in which eyewitness identification procedures are conducted in Israel, which casts doubt on the reliability of these procedures. In 2019, an interim report by the Israeli Committee for the Prevention and Amendment of Wrongful Convictions, headed by former Supreme Court Justice Yoram Danziger (hereinafter: ‘the Danziger Committee’), found these procedures lacking on several accounts. The committee recommended that the police protocol be updated to incorporate a number of safeguards, which, according to the literature, significantly mitigate the chances of misidentification. The committee also recommended that the judiciary generally cease basing convictions solely on witness identifications of unfamiliar suspects and demand that the prosecution present corroborating evidence.8 This article takes a theoretical and comparative approach to explain the importance of the Danziger Committee’s recommendations for the future of the law on eyewitness identification in Israel. As I will demonstrate, the implementation of these recommendations will assist in narrowing the current gap between the limited reliability of Israel’s eyewitness identification procedures, on one hand, and its courts’ extensive reliance on such procedures to convict suspects, on the other hand. The Committee’s recommendations will also serve to narrow the gap between Israel and some other common law countries,9 which have adopted various safeguards against misidentification. The article begins with a short review of the literature about the challenges associated with eyewitness identification and its contribution to wrongful convictions. I conclude section II by discussing the literature’s main recommendations for reducing the risk of error in police lineups. Section III describes the various eyewitness identification procedures carried out by the Israeli police, the rules pertaining to such procedures, and the current evidentiary weight attributed to an identification of a perpe5

Be it a live lineup or a photo lineup. See discussion below. An identification procedure in which, absent a known suspect, eyewitnesses attempt to identify the perpetrator from a photo album containing mugshots of convicted felons. See, e. g., CrimA 2529/05 Reuvenov v. the State of Israel (19. 6. 2006), Nevo Legal Database (Hebrew). 7 See, e. g., CrimA 4384/93 Maliker v. the State of Israel (25. 5. 1994), Nevo Legal Database (Hebrew).; CrimA 7130/97 Shabi v. the State of Israel (21. 3. 1999), Nevo Legal Database (Hebrew); CrimA 10360/03 Shadid v. the State of Israel (2. 3. 2006), Nevo Legal Database (Hebrew). 8 Public Committee for the Prevention and Amendment of Wrongful Convictions, Interim Report: Identification by Eyewitnesses – Recommendations of the Public Committee for the Prevention and Amendment of Wrongful Convictions (2. 9. 2019). 9 Israel is largely a common law country, although it combines certain elements from the civil law tradition. See, e. g., Rivlin, McGill Law Journal/Revue de droit de McMill 57 (2012), p. 781 et seq. 6

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trator under Israeli law. I compare the situation in Israel with the best practices suggested in the literature, as well as with the rules and procedures that exist in other countries. Based on a recent comparative study by Fitzgerald et al.,10 which analyzed the eyewitness identification guidelines of 54 countries (not including Israel), I argue that Israel’s eyewitness identification procedures are lacking on several accounts. Although the investigations by the Danziger Committee have revealed that in practice, the Israeli police has incorporated some important changes into its procedures, such revisions remain limited and partial, and formal guidelines have yet to be updated accordingly. Consequently, I argue in section IV that Israeli eyewitness identification law currently suffers from a dangerous gap between the perceived reliability of identifications of accused perpetrators and the actual reliability of such identifications. I conclude by explaining how the Danziger Committee’s recommendations could rectify this situation, by limiting the evidentiary weight of eyewitness identifications, while also increasing the reliability of such identifications by adopting the best practices advocated in the literature. The implementation of these recommendations will also make Israel one of the leading countries in the world in respect of taking measures for preventing wrongful convictions based on erroneous eyewitness identification.

II. Eyewitness Identification: Challenges and Recommendations In 1932, the first research conducted in the United States to determine the main causes of wrongful convictions found erroneous eyewitness identifications to be the leading cause.11 Decades later, misidentification of suspects remains the number-one reason for convicting the innocent.12 In the United States, for example, such eyewitness identifications have contributed to a whopping 63 % of all Innocent Project exonerations to date.13 Such data is further supported by the startlingly high rates of misidentification found in numerous studies dedicated to understanding the main variables effecting the accuracy of eyewitness testimony.14

10

Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 11 Borchard, Convicting the Innocent, Sixty-five Actual Errors of Criminal Justice. 12 See, e. g., Connors et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, U.S. Department of Justice, National Institute of Justice; Scheck/Neufeld/Dwyer, Actual Innocence: Five Days to Execution, and Other Dispatches from the Wrongly Convicted, p. 246; Saks et al., New England Law Review 35 (2001), pp. 669, 670. 13 Innocence Project, Explore the Numbers: Innocents Project’s Impact, https://in nocenceproject.org/exonerations-data/ (accessed at 7. 12. 2022). 14 For a notable example, see Lindsay/Wells, Law and Human Behavior 4 (1980), p. 303 et seq., in which at times error rates reached 70 %.

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Cognitive psychology studies show that human memory is prone to errors and bias and thus cannot be trusted, particularly with remembering faces.15 While human beings are typically good at identifying well-known faces, we are generally very bad at remembering and identifying unknown ones.16 Moreover, as Wells17 has demonstrated, eyewitnesses are often prone to “relative judgment conceptualization”, i. e., in this context the tendency to choose the lineup member who most resembles the perpetrator relative to the other lineup members, leading to them to identify innocent suspects. This tendency, as well as the general likelihood of error, is significantly affected by the conditions characterizing the identification procedure,18 with the accuracy of eyewitness identification highly dependent on both system variables and estimator variables.19 Estimator variables include exposure duration, proximity to the perpetrator, presence or absence of a weapon,20 the duration of time between the crime and identification, the physical conditions at the scene of the crime and such personal factors as the estimator’s age21 and ethnicity.22 System variables include lineup method, lineup size, filler selection, witness instructions, whether double-blind administration is used, whether repeated identifications are held with the same suspect and whether multiple suspects are included in the same lineup.23 While the former type of variables remains outside the control of the criminal justice system, the latter can be controlled across criminal cases. Consequently, the literature recommends several best practices for conducting police identification procedures, 15 Sangero, Albany Law Review 83 (2020), p. 933. See also Brown et al., Journal of Applied Psychology 62 (1977), p. 311 et seq. 16 See, e. g., Bruce/Young, In the Eye of the Beholder: The Science of Face Perception; Megreya/Burton, Memory & Cognition 34 (2006), p. 865 et seq. 17 Wells, Journal of Applied Psychology 14 (1984), p. 89 et seq. 18 Sangero, Albany Law Review 83 (2020), p. 931 et seq.; Sangero, Safety from False Convictions, p. 184. 19 See, e. g., Mickes, Journal of Applied Research in Memory and Cognition 4 (2015), p. 93 et seq. 20 Studies show that in an incident during which the perpetrator carries a weapon, the eyewitnesses tend to focus their gaze on the weapon, thereby significantly reducing chances of an accurate identification. See, e. g., Culter et al., Law and Human Behavior 11 (1987), p. 233 et seq. 21 Eyewitness identifications by children under the age of 15 and adults aged over 60 have been found to be generally less accurate on average. See, e. g., Parker/Carranza, Law and Human Behavior 13 (1989), p. 133 et seq.; Lindsay et al., Law and Human Behavior 21 (1997), p. 391 et seq. 22 Numerous studies show that human beings encounter difficulties in identifying persons belonging to an ethnic group different from their own. This is because when a person’s race is different from our own, we tend to focus on primary details that are particularly prominent (type and color of hair, skin color, eye color, etc.), making it difficult to pay attention to secondary characteristics, i. e., unique facial features. See, e. g., Sangrigoli et al., Psychological Science 16 (2005), p. 440 et seq.; Simon, In Doubt – The Psychology of the Criminal Justice Process, p. 64. 23 Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq.

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proven to reduce the tendency for relative judgment conceptualization and the chances of error. When it comes to lineup method, current scholarship challenges the traditional assertion that live lineups (i. e., having the lineup members physically present) are more accurate than photo or video lineups.24 While there is evidence to support this claim when all things are equal, all is rarely equal in practice. Live lineups are hard to organize and thus often delayed, are difficult to control, and are stressful for witnesses.25 Consequently, many scholars now recommend using high-quality photo or video lineups instead.26 In addition to live and photo/video lineups, police also often conduct mugshot viewings, namely, an identification procedure in which, absent a known suspect, eyewitnesses attempt to identify the perpetrator from a photo album containing mugshots of convicted felons. This procedure is considered less reliable and thus far less advisable than police lineups, for several reasons. First, it is extremely difficult to ensure a sufficient resemblance between the mugshots and the eyewitness’ description of the perpetrator, as well as between the mugshots themselves, and some mugshots might be outdated.27 Moreover, the large number of mugshots that eyewitnesses are asked to peruse creates a type of ‘retroactivity effect’, causing witnesses to go back and forth comparing the mugshots with one another.28 The result is an increased tendency for relative judgment conceptualization, with witnesses tending to pick the mugshot most resembling the perpetrator, after having viewed numerous photos that hold little resemblance to said perpetrator.29 Secondly, the lack of a concrete suspect leads to the problematic result of no identification ever being “incorrect”. With no plausible way of knowing that the eyewitness was mistaken, every mugbook identification becomes incriminating evidence, despite the high tendency for relative judgment conceptualization and the low accuracy of such identifications. Furthermore, because the mugbook only contains photos of convicted felons, this increased risk of misidentification effects a relatively small

24 Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 25 See, e. g., Fitzgerald et al., Psychology, Public Policy, and Law 24 (2018), p. 307 et seq. 26 Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. There is also a long-standing debate in the academic literature on whether lineup members should be viewed simultaneously or sequentially. A simultaneous lineup is one in which the participants are presented to the witness side by side, while in a sequential lineup, the witness views one participant at a time and is asked to attempt to identify each of them. There is currently no consensus on this question, though most countries prefer the simultaneous method. Ibid. 27 Wells, Eyewitness Identification, pp. 49 – 51. 28 Lindsay/Bellinger, The Journal of Applied Psychology 84 (1999), p. 315 et seq. 29 Menashe/Assy, The Hebrew University Law Journal 35 (2005), pp. 205, 246 (Hebrew).

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group of people disproportionately, exposing them to potential over-criminalization.30 When it comes to lineup size, scholars have called for lineups larger than the ones that currently exist in most countries, demonstrating that large lineups significantly reduce the chances of misidentification.31 However, correct identifications also tend to drop as nominal size increases,32 and finding fillers who match the suspect’s description becomes more difficult. Thus, the experimental literature has not yet developed to the point at which an optimal number of lineup members can be recommended. What it has established, however, is that the number of plausible lineup members is far more important than the lineup’s nominal size, as only a significant resemblance between the suspect and the fillers can prevent relative judgment conceptualization.33 Consequently, the literature emphasizes the significance of filler selection, though there is some disagreement whether it is better to match the fillers to the eyewitness’s description of the perpetrator, or whether fillers should be matched with suspect’s de-facto appearance.34 Current academic literature emphasizes that fillers should be matched to both the witness description and the suspect’s appearance,35 with features in the eyewitness description considered a minimal requirement.36 Witness instructions have received much attention in the literature, particularly due to their potential contribution to relative judgment conceptualization. The experimental literature clearly demonstrates that witnesses are far more likely to misidentify an innocent lineup member when not explicitly told that the lineup may or may not contain the actual perpetrator.37 Thus, scholars across the board recommend including such an explicit warning in order to dissuade witnesses from assuming that the perpetrator is in the lineup.38 Another common recommendation pertains to double-blind administration of eyewitness identification procedures, with scholars arguing it better if the police officer conducting the lineup is unaware of the suspect’s identity.39 Studies show that such awareness may contaminate the procedure and 30

Menashe/Assy, The Hebrew University Law Journal 35 (2005), pp. 245 – 246 (Hebrew). See, e. g., Levi, Journal of Experimental Criminology 3 (2007), p. 377 et seq. 32 See, e. g., Meissner et al., Memory & Cognition 33 (2005), p. 783 et seq. 33 Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 34 See, e. g., Fitzgerald et al., Psychology, Public Policy, and Law 19 (2013), p. 151 et seq. 35 See, e. g., Clark et al., in: Cutler (ed.), Reform of Eyewitness Identification Procedures, p. 87 et seq. 36 Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 37 See, e. g., Malpass/Devine, Journal of Applied Psychology 66 (1981), p. 482 et seq.; Steblay, Law and Human Behavior 21 (1997), p. 283 et seq. 38 See, e. g., Wells et al., Perspectives on Psychological Science 7 (2012), p. 264 et seq. 39 See, e. g., National Academies of Science, Identifying the Culprit: Assessing Eyewitness Identification, pp. 26 – 27. 31

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lead to higher levels of misidentification, due to unintentional hints and verbal/nonverbal cues by the lineup administrator.40 When double-blind administration is impossible due to practical constraints, police should take alternative means for reducing the risk of contamination, such as conducting a photo lineup in which only the eyewitness, and not the police officer, can view the photos in real time.41 Academic literature also discourages repeated identifications with the same suspect, as studies show that exposure to a suspect at a prior identification can influence the witness’s pick at the second identification procedure. Second identification procedures supposedly test the credibility of a prior identification that was obtained via a less reliable procedure; however, in practice, eyewitnesses are susceptible to commitment effects and rarely correct their error the second time around.42 Thus, if the witness has previously seen an innocent suspect at a mugshot viewing or some informal identification procedure, there is an increased likelihood that they will misidentify that same innocent suspect from a lineup.43 The literature similarly discourages including multiple suspects in the same lineup and recommends that in cases where police have more than one suspect, a separate lineup should be held for each of them. This is because statistically, including multiple suspects increases the likelihood that the witness will identify at least one suspect. In cases of multiple perpetrators, some suggest that the eyewitness be requested to try to identify each of them separately and describe the exact role that each person played in the crime.44 Finally, current research shows some correlation between witness confidence and witness accuracy. Identifications by confident witnesses tend to be more reliable than identifications by unconfident witnesses, particularly if confidence is assessed immediately after the identification, the lineup procedure is administered properly, and the witness’ memory has not been contaminated.45 Consequently, scholars recommend asking eyewitnesses to rate their level of confidence immediately upon making the identification. However, this recommendation should be taken with a grain of salt. 40 See, e. g., Greathouse/Kovera, Law and Human Behavior 33 (2009), p. 70 et seq.; Maclean et al., Applied Cognitive Psychology 25 (2011), p. 739 et seq.; Steblay/Wells/Bradfield Douglass, Psychology, Public Policy & Law 20 (2014), p. 1 et seq. 41 See, e. g., Yates, Eyewitness Identification Procedures for Conducting Photo Arrays: Memorandum for Heads of Department Law Enforcement Components All Department Prosecutors. 42 See, e. g., Steblay et al., Applied Cognitive Psychology 27 (2013), p. 644 et seq. See also Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 43 See, e. g., Deffenbacher/Bornstein/Penrod, Law and Human Behavior 30 (2006), p. 287 et seq.; Valentine et al., Applied Cognitive Psychology 26 (2012), p. 1 et seq. 44 Wagenaar, Identifying Ivan, p. 81. 45 See, e. g., Wixted et al., Perspectives in Psychological Science 13 (2018), p. 324 et seq.; see also Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq.

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The reason is that confidence becomes an unreliable indicator of accuracy, for example, if the lineup procedure is less than immaculate,46 if the eyewitness is asked about her confidence after having received feedback from the officer conducting the lineup,47 or if the witness fails to make an identification48. The next section examines Israel’s eyewitness identification procedures and their evidentiary weight in criminal cases, vis-à-vis the main recommendations offered in the literature. I additionally compare the Israeli police’s guidelines for conducting identification procedures with the guidelines that exist in other countries, some of which have already been revised in accordance with these recommendations.

III. Eyewitness Identification in Israel 1. The High Evidentiary Weight of Eyewitness Identification Despite the questionable reliability of eyewitness identification, Israeli courts tend to give much weight to such evidence. Since the 1990s, the Supreme Court has retreated from its previous approach, according to which an identification of an unknown perpetrator was generally insufficient for a criminal conviction and required corroborating evidence.49 In later rulings, the Court stressed that while attaining such corroborating evidence was preferable, it was unnecessary for a conviction, so long as the decision to convict based solely on eyewitness testimony was a conscious and well-reasoned one.50 Moreover, while the Court has ruled that live lineups are more reliable and thus preferable to photo lineups and mugshot viewings, it has also ruled that all types of identification – including the far less reliable mugshot viewing51 – might principally establish the defendant’s guilt.52 46

Wixted/Wells, Psychological Science in the Public Interest 18 (2017), p. 10 et seq. Wells/Bradfield, Journal of Applied Psychology 83 (1998), p. 360 et seq. 48 Sporer et al., Psychological Bulletin 118 (1995), p. 315 et seq. 49 See, e. g., CrimA 848/76 Biazi v. the State of Israel (14. 7. 1977), Nevo Legal Database (Hebrew). 50 See, e. g., CrimA 4384/93 Maliker v. the State of Israel (25. 5. 1994), Nevo Legal Database (Hebrew); CrimA 7130/97 Shabi v. the State of Israel (21. 3. 1999), Nevo Legal Database (Hebrew); CrimA 10360/03 Shadid v. the State of Israel (2. 3. 2006), Nevo Legal Database (Hebrew). 51 See, e. g., CrimA 2529/05 Reuvenov v. the State of Israel (19. 6. 2006), Nevo Legal Database (Hebrew). However, in CrimA 10360/03, Shadid v. the State of Israel (2. 3. 2006), Nevo Legal Database (Hebrew), it was said that the court must caution itself when presented with evidence resulting from such a procedure, the evidentiary value of which is inferior to live and photo lineups. The court must specify the special circumstances that led it to convict the defendant based solely on such evidence and show awareness of the difficulties that mugshot viewings entail. 52 See, e. g., CrimA 2180/02 Kasem v. the State of Israel (23. 12. 2002), Nevo Legal Database (Hebrew). 47

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Perhaps the leading case in Israeli eyewitness identification law is the famous acquittal of accused war criminal John Demjanjuk.53 Demjanjuk was accused of being “Ivan the Terrible,” a sadistic gas chamber operator who assisted in the extermination of thousands of Jews at the Treblinka death camp during World War II. He was charged with war crimes, crimes against humanity and other severe offences.54 The prosecution relied on the testimony of five Treblinka survivors and one German guard, who positively identified Demjanjuk as Ivan the Terrible. Four other Treblinka survivors had also identified Demjanjuk’s photo, but they died before the trial commenced. Further support came from the testimony of a farmer who had operated a tavern near the Treblinka death camp, who identified Demjanjuk’s photo as someone known to him as Ivan the Terrible, an operator of the gas chambers at Treblinka.55 In his defense, Demjanjuk argued that the prosecution witnesses were mistaken in their identifications, saying also that at the time that of Ivan the Terrible’s crimes in Treblinka, he, Demjanjuk, was a prisoner of war in Poland. The prosecution disproved this alibi, as well as other claims made by the defense.56 In 1988, the District Court of Jerusalem convicted Demjanjuk and sentenced him to death by hanging.57 The court based its conviction principally on the testimony of the five Treblinka survivors and the statements of those survivors who had identified Demjanjuk to Israeli police, but had died before the trial began. The Court discussed at length the question of whether or not it was possible to remember and accurately describe the details of events that took place over 45 years previously, concluding that the identifications by the survivors were reliable and accurate. The Court commented that it was impossible to forget the realities of Treblinka and that persons who underwent the shock of the extermination camp could not forget what their eyes had seen.58 Demjanjuk appealed against the Court’s conviction and sentence, maintaining, as he had from the start, that he was a victim of mistaken eyewitness identification. In 1991, after the collapse of the Soviet Union, Russian leaders released evidence from 53

CrimA 347/88 Demjanjuk v. the State of Israel (29. 7. 1993), Nevo Legal Database (Hebrew). 54 Crimes against the Jewish people; crimes against persecuted people. See CrimC 373/86 the State of Israel v. Demjanjuk (18. 4. 1988), Nevo Legal Database (Hebrew). 55 Additionally, the prosecution relied on the “Trawniki document”, an S.S. identification card, which placed Demjanjuk as a member of a German S.S. unit that worked at the Treblinka death camp. For a lengthy discussion of the case, see Del Pizzo, Boston College International and Comparative Law Review 18 (1995), p. 137 et seq. 56 For example, Demjanjuk’s argument that the “Trawniki document” was a forgery was likewise disproven. Del Pizzo, Boston College International and Comparative Law Review 18 (1995), p. 137 et seq. 57 CrimC 373/86, the State of Israel v. Demjanjuk (18. 4. 1988), Nevo Legal Database (Hebrew). 58 CrimC 373/86, the State of Israel v. Demjanjuk (18. 4. 1988), Nevo Legal Database (Hebrew). For a discussion of this ruling, see also Del Pizzo, Boston College International and Comparative Law Review 18 (1995), p. 137 et seq.

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the Soviet archives, which named another man, Ivan Marchenko, as the gas chamber operator known as Ivan the Terrible. This evidence included statements by Treblinka guards and by Ukrainian forced laborers brought to Treblinka, who identified a photo of Marchenko and claimed him to be the prime operator of the Treblinka gas chambers.59 The man in that photo bore no physical resemblance to Demjanjuk. The verbal descriptions of Marchenko, conveyed by the eyewitnesses, likewise did not resemble Demjanjuk’s appearance, although they were quite varied.60 Based on this new evidence, the Supreme Court acquitted Demjanjuk of all charges.61 The Court examined the identification procedures and testimony of the holocaust survivors, ruling that the procedures used by the investigators complied with the Israeli rules of evidence, and that the identifications themselves were completely reliable. Thus, the Court found no grounds for interfering with the District Court’s findings based on the survivors’ testimonies, emphasizing that even a single eyewitness identification of a defendant as the perpetrator might principally be sufficient for establishing guilt. However, in this case, the prosecution failed to advance any arguments that could reconcile the new evidence with the statements of the survivors. Thus, despite the many questions and problems surrounding the Soviet evidence taking protocols, without a reasonable basis for rejecting the evidence as untrustworthy, the court refused to rule out its significance.62 The Court did find, however, that Demjanjuk had served as a S.S. Wachmann (guardsman) in the Trawniki unit where he aided in the murder of thousands of Jews, and that he had served at the Sobibor death camp in Poland. Despite these findings and for procedural reasons, the Court declined to convict Demjanjuk on the Trawniki and Sobibor crimes or to remit the case to the District Court for further inquiry.63 59

Together with another prime operator, a man named Nicholai. CrimA 347/88 Demjanjuk v. the State of Israel (29. 7. 1993), Nevo Legal Database (Hebrew). 60 CrimA 347/88 Demjanjuk v. the State of Israel (29. 7. 1993), Nevo Legal Database, p. 625 (Hebrew). See discussion below. 61 CrimA 347/88 Demjanjuk v. the State of Israel (29. 7. 1993), Nevo Legal Database, pp. 392, 429 (Hebrew). 62 Del Pizzo, Boston College International and Comparative Law Review 18 (1995), p. 137 et seq. See also CrimA 347/88, Demjanjuk v. the State of Israel (29. 7. 1993), Nevo Legal Database, pp. 392, 663 (Hebrew). 63 Israeli law permits a conviction for crimes proven at trial even if those crimes were not the focus of the trial, if two criteria are satisfied. Section 216 of the Israeli Criminal Procedure Law (Consolidated Version), 5742 – 1982, provides that [t]he court may convict the accused of an offence of which he is shown to be guilty by the facts proved, even though it is different from that of which he was convicted by the court below and even though those facts were not alleged in the court below, provided the accused has been given a reasonable opportunity to defend himself. For critique of the decision not to use this provision to convict Demjanjuk, see Del Pizzo, Boston College International and Comparative Law Review 18 (1995), p. 137 et seq. However, Demjanjuk was later tried in a Munich court for his crimes at the Sobibor camp, and in 2011, he was found guilty and sentenced to five years in prison. See Aderet/DPA, Haaretz, 17. 3. 2012.

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While Demjanjuk was in fact a war criminal and thus was not innocent in the strict sense of the word, it is still somewhat ironic that his acquittal currently serves mainly to establish the high evidentiary weight of eyewitness identification in Israel. As the Supreme Court itself concluded, it was difficult to reconcile the new evidence presented at appeal with the evidence originally establishing Demjanjuk’s conviction. This means that in all likelihood, either the eyewitnesses identifying Demjanjuk or those identifying Marchenko as Ivan the Terrible were mistaken. It is also noteworthy that the exculpatory evidence itself reveals much of the fragility of human memory. For example, while all those who identified Marchenko had described him as tall and broad shouldered, some had described him as slender while others claimed him to be full-bodied; some as fair-haired and some as black-haired; some as brown-eyed and some as blue-eyed, and so on.64 Most importantly, assuming the eyewitness identifications included in the new evidence were the correct ones, then there is no way around the conclusion that John Demjanjuk was nearly executed for acts he did not commit, based on erroneous eyewitness testimony. Yet, rather than serving as a cautionary tale against over-reliance on eyewitness identification, the Demjanjuktrial has been cited repeatedly to establish the adequacy of such identification for conviction.65 The reasons for this ironic result, e. g., the Court’s wish to show support for the holocaust survivors by reaffirming the reliability of their testimonies, remains outside the scope of this article. However, it is clear that the standards set in the Demjanjuk case are at odds both with the literature demonstrating the limited reliability of eyewitness testimony and with the facts of the case itself. The significant evidentiary weight attributed to eyewitness identification is also at odds with the rules for conducting identification procedures in Israel, which, as I will show in the next section, are currently lacking on several accounts. 2. Israeli Guidelines for Conducting Police Lineups and Their Deficiencies The rules pertaining to eyewitness identification procedures in Israel have not been legislated but are stipulated in a police guideline,66 as well as being stipulated or confirmed in some Supreme Court rulings. Interestingly, some instructions in the police guideline – and particularly some new practices adopted in practice by the police – are in fact preferable to the rules stipulated by the Court from the standpoint of 64 CrimA 347/88, Demjanjuk v. the State of Israel (29. 7. 1993), Nevo Legal Database, p. 625 (Hebrew). 65 For a few of many examples see, e. g., CrimC 53788 – 06 – 13 Ovadia v. the State of Israel (1. 9. 2014), Nevo Legal Database (Hebrew); CrimC 32402 – 02 – 15 Gamal v, the State of Israel (6. 4. 2016), Nevo Legal Database (Hebrew); CrimA 5933/11 Ital. the State of Israel (6. 9. 2014), Nevo Legal Database (Hebrew). 66 Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005 (1. 2. 2014).

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preventing misidentifications. Yet, these encouraging improvements in the guideline and in practice remain partial and still leave room for improvement. Lineup method. A comparative study by Fitzgerald et al., which analyzed the eyewitness identification guidelines of 54 countries,67 found that nearly half (46 %) of the surveyed guidelines indicated a preference for live lineups. Only in England, Wales, and Scotland, are video lineups the preferred method.68 Similarly, in Israel, the Supreme Court has ruled that live lineups are highly reliable and are thus preferable to photo lineups and mugshot viewings.69 Following such rulings, the police guideline states that live lineups are generally preferable to other identification procedures70 and specifies the rules governing that procedure.71 The guideline also specifies a number of exceptions, the occurrence of which may warrant preference for a photo lineup (e. g., suspects who are absent or who refuse to participate in a live lineup; suspects with a unique physical appearance making appropriate fillers difficult to find).72 Despite the formal preference for live lineups in Israeli law, in practice such lineups are becoming rare. For example, during the years 2016 – 2018, only eight live lineups were held, as opposed to thousands of photo lineups. The Head of the Israel Police Investigation Department, who testified before the Danziger Committee, explained that the avoidance of live lineups stems from numerous technical limitations, 67 Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. This review is based on legislation, national guidelines, and case law containing lineup recommendations, published between 1995 and 2020. Despite locating guidelines from more countries than any previous comparative review article, some regions were underrepresented (Middle East, Latin America, South East Asia, Africa, South Pacific). 68 Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. Guidelines rarely recommended sequential presentation, nor do they explicitly recommend simultaneous presentation. However, 52 % described an identification procedure that suggested lineup members would be presented simultaneously (e. g., they would appear in a line). Sequential presentation was preferred in the guidelines of five countries (9 %): Canada, Denmark, Germany, Norway, and Sweden, in addition to some U.S. jurisdictions. In England and Wales, where video lineups are preferred, sequential presentation is common practice but not an explicit requirement. 69 See, e. g., CrimA 347/88 Demjanjuk v. the State of Israel (29. 7. 1993), Nevo Legal Database (Hebrew). 70 Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Section 4 A(2) (1. 2. 2014). 71 Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Section 4 (1. 2. 2014). The Israeli police hold simultaneous lineups, and the Supreme Court has ruled that this was the preferred method. See Israel Police Guidance, Rules for Providing Information and/or Reviewing the Details of those Photographed and/or Photos Presented to an Eyewitness Following a Process of Identifying Suspects in the Police Album, 029.50.370.C01 (2. 7. 2019); CrimA 420/81 Cohen v. the State of Israel (15. 3. 1982), Nevo Legal Database (Hebrew). 72 Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Section 5 (1. 2. 2014).

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particularly the difficulties of transporting the suspect and seven different fillers to the same location simultaneously.73 This explanation resonates with the current literature indicating that live lineups may in fact reduce the accuracy of eyewitness identifications, by causing these identifications to be delayed. Lineup size and filler selection. Policies on the nominal size of police lineups vary worldwide, with the recommended minimum number of lineup members ranging from three to 10. Common law countries tended to recommend larger minimum lineup sizes, with nine lineup members required in England and Wales, Australia, Ireland, Kenya, Tanzania, and Uganda. Additionally, some guidelines require a larger number of members in photo lineups than in live or video lineups.74 Nearly all the guidelines (89 %) recommend matching fillers to the suspect’s appearance, whereas matching fillers to the eyewitness description of the perpetrator was only recommended in 17 % of the countries surveyed by Fitzgerald et al. Of the latter countries, five additionally recommend matching to the suspect’s appearance.75 In Israel, the Supreme Court has ruled that the number of lineup members should be no less than eight,76 with the police guideline adopting this ruling and stipulating a nominal size of no less than eight and no more than ten.77 The fillers must resemble the suspect both in terms of general physical characteristics (body structure, height, skin tone, appearance and hair color, attire, etc.) and in terms of unique physical characteristics (spectacles, tattoo, scar, beard and moustache, etc.).78 The police guideline states that fillers should resemble the suspect “as much as possible” in their physical appearance (body structure, height, skin tone, hair color and appearance, age, attire). In cases where the suspect is characterized by a unique external mark, an effort should be made to obscure that mark.79 The guideline makes no mention of the option of matching fillers to the eyewitness’ description of the perpetrator, a practice that 73 Minutes of the Public Committee for the Prevention and Amendment of False Convictions, pp. 9 – 16 (21. 2. 2019). 74 For example, in Norway, only seven members are required for a live lineup, while 10 are required for a photo/video lineup. The Scottish guidelines require six and 12 participants respectively, while in England and Wales, the guidelines require nine and 12 participants respectively. The minimum in the United States is among the most lenient of the common law countries, with only six members for photo lineups and five for live lineups. Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 75 For example, the Swedish guidelines generally recommend matching fillers to the eyewitness description, but also state that if the description conflicts with the suspect’s appearance the latter should be prioritized. Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 76 CrimA 648/77 Karib v. the State of Israel (29. 6. 1978), Nevo Legal Database (Hebrew). 77 Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Section 4E (1. 2. 2014). 78 CrimA 4427/95 Ploni v. the State of Israel (27. 3. 1997), Nevo Legal Database (Hebrew). 79 Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Section 4E (1. 2. 2014).

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according to the literature might be advantageous in certain cases. However, it does stipulate that the witness should be asked to describe the perpetrator prior to the lineup.80 Witness instructions. According to Fitzgerald et al., the “may or may not be present” pre-lineup admonition currently exists in the guidelines of a majority (62.5 %) of the common law countries, but remains extremely rare in the civil law world.81 While many common law countries have amended their witness instructions to comply with this recommended practice, Israel is, at least formally, yet to do the same. The Supreme Court has refused to rule that the lineup administrator is obligated to warn the witness explicitly about the possible absence of the actual perpetrator,82 stipulating only that the instruction must be neutral so as not to divulge the suspect’s identity.83 The police guideline likewise does not incorporate such an explicit warning. However, the instruction is worded in a way that suggests that the perpetrator may not be present (“You will be asked to walk past the persons standing behind you and examine whether or not the person you referred to in your statement is amongst them”).84 Moreover, the Head of the Israel Police Investigation Department informed the Danziger Committee that in practice, lineup administrators do explicitly warn eyewitnesses of this possibility,85 and the police representatives on the Committee did not object to the guideline being amended accordingly. Double-blind administration. While this recommendation has had significant impact on eyewitness identification policies in the United States, only four other countries (Canada, Denmark, Norway, and Sweden) have mandated such a requirement. However, some countries that do not require that the lineup administrator be blind to the suspect’s identity do demand that the administrator be uninvolved in the investigation. In England and Wales, case detectives have been restricted from administering lineups for many years, and several common law countries have since followed suit.86

80

Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Sections 4D(1), 5C(1) (1. 2. 2014). 81 Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 82 See, e. g., CrimA 10360/03 Shadid v. the State of Israel (2. 3. 2006), Nevo Legal Database (Hebrew); CrimA 2365/05 State of Israel v. Shteavi (22. 2. 2007), Nevo Legal Database (Hebrew). 83 CrimA 648/77 Karib v. the State of Israel (29. 6. 1978), Nevo Legal Database (Hebrew). 84 Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Appendix B. (1. 2. 2014). 85 Minutes of the Public Committee for the Prevention and Amendment of False Convictions, at 10 (21. 2. 2019). 86 Australia, India, Ireland, Kenya, Lesotho, South Africa, Tanzania, Uganda, Zimbabwe. Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq.

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Israeli eyewitness identification law has yet to adopt a similar requirement. Whereas in the past, the Supreme Court had ruled that the lineup administrator must remain unaware of the suspect’s identity and location within the lineup to avoid overt or covert biases that may influence eyewitness,87 this requirement was withdrawn in later rulings. Currently, the Court does not consider the administrator’s awareness of the suspect’s identity to invalidate the identification,88 although in some cases such awareness may decrease the identification’s evidentiary weight.89 The police guideline accordingly involves no requirement for double-blind administration. According to the Head of the Israel Police Investigation Department, the police does strive to follow this practice, but this is difficult, especially in cases where the suspect is represented by a lawyer during the lineup. In such cases, the suspect and his lawyer have the right to intervene in the location of the fillers and to change the suspect’s position, causing the administrator to become aware of the suspect’s identity.90 Moreover, the Danziger Committee was informed that in photo lineups, eyewitnesses view the photos on a computer monitor and at the culmination of a computerized process, so that the administrator cannot view the direction of the eyewitness’s gaze. This practice, which is more consistent with the literature’s recommendations, mitigates the risk of unconscious cues on the part of the administrator, who is unable to see which photo the eyewitness is viewing at any given moment.91 Repeated identifications with the same suspect. A minority of the guidelines (17 %) reviewed by Fitzgerald et al. explicitly discouraged presenting a suspect to the same witness more than once for identification.92 The Israeli police guideline joins this minority and adopts a more stringent instruction than the one stipulated by the Supreme Court. The Court has ruled that whether an additional lineup may be conducted depends on the outcome of the first identification procedure: if the suspect was identified via that procedure, then his identification via the second procedure will receive little weight. If, on the other hand, the eyewitness did not identify the suspect, then the concern that exposure to the suspect would affect the outcome of the second procedure remains negligible. Thus, the police may conduct a second identification procedure and the courts may principally give the outcome of that proce87

CrimA 368/74 Darhi v. the State of Israel (10. 9. 1975), Nevo Legal Database (Hebrew). See, e. g., CrimA 8939/08 Moses v. the State of Israel (5. 10. 2011), Nevo Legal Database (Hebrew); CrimA 7053/13 Nizeri v. the State of Israel (15. 1. 2014), Nevo Legal Database (Hebrew). 89 See, e. g., CrimA 5668/14 Michaeli v. the State of Israel (26. 11. 2014), Nevo Legal Database (Hebrew). 90 Minutes of the Public Committee for the Prevention and Amendment of False Convictions, pp. 9 – 10 (21. 2. 2019). 91 Minutes of the Public Committee for the Prevention and Amendment of False Convictions, pp. 9 – 10 (21. 2. 2019). 92 These are the guidelines of Australia, Azerbaijan, Czech Republic, Georgia, Kazakhstan, Moldova, New Zealand, Russia, Ukraine. Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 88

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dure maximum evidentiary weight.93 Conversely, the police guideline stipulates that a live lineup should not be conducted if the eyewitness had previously met the suspect, or if the suspect’s photo was presented to the witness, using either a mugbook or a photo lineup.94 This instruction is consistent with the literature, which indicates that exposure to a person’s face in the context of a criminal investigation may later lead to that person’s misidentification, whether or not that person was previously identified. Multiple suspects/eyewitnesses. Restrictions on the number of suspects per lineup were included in less than half of the guidelines reviewed by Fitzgerald et al., with only 26 % of the guidelines specifying that a lineup should only have one suspect. Another 7 % explicitly allowed two suspects per lineup, on the condition that they resembled one another, while most guidelines included no mention of procedures for multiple suspects. In cases of multiple eyewitnesses to the same event, over half of the guidelines (56 %) recommended administering separate identification procedures for each witness.95 Israel joins the majority on the latter issue, with the Supreme Court ruling that a separate lineup should be held for each eyewitness.96 However, on the former issue of the number of suspects per lineup, Israel is closer the negligible minority of countries that explicitly allow for the inclusion of multiple suspects in the same lineup. The Court has ruled that when the police has more than one suspect in custody, it is unnecessary to conduct a separate lineup for each of the suspects.97 As for the police guideline, it states that a live lineup may include no more than two suspects, so long as there is a physical resemblance between the suspects.98 In the event that two suspects participate in the lineup, the nominal size of the lineup will be increased to between 12 and 15 (including the suspects).99 Photo lineups, conversely, may only include one suspect – an instruction more consistent with the recommendations in the literature.100 Witness confidence. Only seven (13 %) of the countries reviewed by Fitzgerald et al., including the United States and Canada, recommended obtaining a post-identification confidence assessment from eyewitnesses. The Canadian guidelines, as well 93

CrimA 5764/92 Amar v. the State of Israel (22. 4. 1993), Nevo Legal Database (Hebrew). Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Section 4 A(4) (1. 2. 2014). 95 Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 96 CrimA 648/77 Karib v. the State of Israel (29. 6. 1978), Nevo Legal Database (Hebrew). 97 CrimA 10360/03 Shadid v. the State of Israel (2. 3. 2006), Nevo Legal Database (Hebrew). 98 Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Section 4E(7) (1. 2. 2014). 99 Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Section 4E(3) (1. 2. 2014). 100 Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Section 5C(5) (1. 2. 2014). 94

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as the Norwegian ones, also advised that a confidence assessment be obtained before it was contaminated by feedback and discouragement by police discussing the lineup decision with the witness. While some of the guidelines (e. g., in the United States) recommend asking witnesses to describe their level of confidence in their own words, others recommended that witnesses rate their confidence numerically on a scale or by degree.101 The Israeli police guideline, like the majority of guidelines in the world, includes no equivalent instruction. Finally, Israel joins the majority of common law countries (56.3 %), but the minority of countries in general (32 %), whose guidelines specify that the suspect can or should have legal representation at the identification procedure.102 The Israeli guideline stipulates the suspect’s right to such representation during a police lineup and goes on to specify that the defence attorney (or the suspect himself) may present questions to the eyewitness post-identification.103 Thus guidelines for conducting police lineups in Israel leave much to be desired. The procedures for conducting such lineups have improved somewhat in practice (e. g., with regard to witness instructions) and the police guideline has introduced certain improvements to the rules as stipulated by the Supreme Court (e. g., concerning repeated identifications with the same suspect). Yet, the guideline still allows for live lineups with multiple suspects, contains no requirements concerning double-blind administration or obtaining witness confidence statements, and has not formally incorporated instructions informing the witness that a perpetrator might not be present in the lineup. Nor does the guideline mention the option of matching fillers to the perpetrator’s description, which in some cases might be preferable to going by the actual suspect. Finally, the guideline reflects a somewhat outdated preference for live lineups, although in practice the police rarely conducts such lineups.

101 For example, the Danish guidelines recommend obtaining a statement to clarify whether the identification is secure, less secure, or uncertain. In Sweden, witnesses are advised first to state confidence in their own words, and then to follow by rating their confidence on a scale of 0 – 100. In England and Wales there is no recommendation to assess confidence for video or live lineups, but there is a recommendation to assess confidence if a witness is unable to confirm an identification from less preferable procedures (group identification, confrontation, or viewing of photographs). Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 102 Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, p. 294 et seq. 103 This, however, is at the discretion of the lineup administrator, who must also document the questions and the eyewitness’ answers or, alternatively, his own refusal to allow such questions. Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005, at Section 4E(4)-(6) (1. 2. 2014).

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IV. Discussion: Ameliorating the Deficiencies in Israeli Eyewitness Identification Law on the Basis of the Danziger Committee’s Recommendations Looking at Israeli eyewitness identification law through a theoretical and comparative lens allows us both to evaluate its current deficiencies as well as to suggest possible measures for their rectification. Presently, the high evidentiary weight attributed to an identification of an unknown perpetrator by the Israeli Supreme Court is at odds with the literature demonstrating the limited reliability of such evidence. This is particularly true given the strong connection between the reliability of eyewitness identification and a variety of system variables, which in Israel only partly comply with best practice. Like the majority of countries worldwide, the Israeli guidelines for conducting eyewitness identification procedures state a preference for live lineups and do not include requirements for double-blind administration, obtaining witness confidence statements, and matching the fillers to the perpetrator’s description. The guidelines allow for legal representation of the suspect, similarly to most common law countries, and are at the forefront when it comes to discouraging repeated identifications with the same suspect – a rule that only a minority of countries has adopted. However, Israel lags behind many common law countries when it comes to witness instructions as well as to allowing multiple suspects to be included in the same (live) lineup. The recommendations of the Danziger Committee, issued in September 2019, strive to remedy these deficiencies in Israeli eyewitness identification law. The recommendations aim to reduce the presently high evidentiary weight of identifications of unknown perpetrators while also taking steps to increase their accuracy, thus narrowing the dangerous gap that currently exists between the two. If implemented, the recommendations will make Israel one of the first countries in the world to reform its identification procedures fully in accordance with the best practices advocated in the literature. Firstly, the committee recommended that courts restrict the evidentiary weight of identifications of unknown perpetrators. A particularly important recommendation is that an identification based on a mugshot viewing should no longer in itself serve as grounds for a conviction and should at most be considered corroborating evidence, i. e. it supports other evidence of the defendant’s guilt.104 These recommendations, which are consistent with the literature, may cause Israeli courts to give less weight to eyewitness testimony than most of their counterparts worldwide, which generally consider such evidence sufficient for a conviction. Secondly, the committee discussed the impact of estimator variables on the accuracy of eyewitness identification, with the aim of assisting the judiciary in evaluating 104 Public Committee for the Prevention and Amendment of Wrongful Convictions, Interim Report: Identification by Eyewitnesses – Recommendations of the Public Committee for the Prevention and Amendment of Wrongful Convictions, pp. 5, 18 – 19 (2. 9. 2019).

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the accuracy of such evidence.105 Third, and perhaps most importantly, the Committee addressed several system variables and recommended that the police guideline be updated. The Committee also recommended that courts take into account a failure to comply with the rules for conducting police lineups when evaluating the evidentiary weight of the identification. Lineup method. In light of the many technical difficulties involved in conducting live lineups, which in some cases may impair the accuracy of identifications, the Committee recommended amending the instruction that prioritizes live lineups over photo lineups. In lieu of that instruction, the Committee advocated a more flexible rule, allowing the police to prioritize cases in which there was a special justification for conducting a live lineup, while conducting photo lineups in the remainder of cases.106 This recommendation to match the police guideline to the situation on the ground, which already favors photo lineups over live lineups, is important not merely due to the delays often caused by using live lineups. It is important also because the rules in Israel for conducting photo lineups make such lineups potentially more accurate than live lineups, as the former entail partial double-blind administration and may not include more than one suspect, while the latter contains no such safeguards. Additionally, finding fillers that resemble both the actual suspect and minimal features from the eyewitness’s description of the perpetrator, might be easier in photo lineups. The Danziger Committee recommended this practice, stipulating that if the eyewitness’s description differed greatly from the suspect’s actual appearance, holding a lineup was generally inadvisable. However, if the two could be bridged, then the lineup ought to include fillers who resembled both the actual suspect and the general verbal description of the perpetrator. Furthermore, and given the literature indicating that there are some advantages in matching fillers to the witness’s description, it was important to obtain such descriptions prior to the lineup.107 This recommendation might be easier to follow if photo lineups were prioritized. Yet, the reliability of photo lineups in Israel is still questionable. During the Danziger Committee’s deliberations, the police presented data for the years 2016 – 2018 regarding the outcomes of lineups, of which all but eight were photo lineups. In 13 % of those lineups, eyewitnesses misidentified an innocent filler, i. e. a person who was not the suspect. In fact, the error rate revealed by the police data was even higher, as

105 Public Committee for the Prevention and Amendment of Wrongful Convictions, Interim Report: Identification by Eyewitnesses – Recommendations of the Public Committee for the Prevention and Amendment of Wrongful Convictions, pp. 5 – 13 (2. 9. 2019). 106 Public Committee for the Prevention and Amendment of Wrongful Convictions, Interim Report: Identification by Eyewitnesses – Recommendations of the Public Committee for the Prevention and Amendment of Wrongful Convictions, pp. 17 – 18 (2. 9. 2019). 107 Public Committee for the Prevention and Amendment of Wrongful Convictions, Interim Report: Identification by Eyewitnesses – Recommendations of the Public Committee for the Prevention and Amendment of Wrongful Convictions, p. 23 (2. 9. 2019).

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eyewitnesses only made an identification in 53 % of the lineups.108 That means that considering all the identifications made during those two years, 24.5 % were misidentifications. Such an alarmingly high error rate – which only included misidentifications known to the police – demonstrates the necessity of reducing the evidentiary weight of eyewitness testimony, as well as the need for further reform in the police guideline. With regard to witness instructions, the Committee recommended that a warning concerning the perpetrator’s possible absence from the lineup be formally included in the instructions stated in the guideline.109 This recommendation is consistent with the literature and with the guidelines of the majority of common law countries. Another important recommendation concerns double-blind administration, with the Committee advocating that both live and photo lineups be held by an administrator who us unaware of the suspect’s identity. In cases where this is impossible, the police should adopt an alternative measure that will mitigate the risk of unconscious cues on the part of the lineup administrator influencing the outcome.110 The Committee also recommended avoiding repeated identifications with the same suspect – even in cases where the original identification occurred via mugshot viewing. That means that in such cases, the police should refrain from later conducting a formal lineup. Nevertheless, if the suspect’s mugshot differs substantially from his appearance on the day of the crime, and if the eyewitness did not identify the suspect in the mugbook, performing an additional identification procedure is permissible. In such cases, the fact that the suspect’s photo appeared in the mugbook would need to be explicitly noted in the lineup protocol so that the court could consider the slim possibility that the witness’ exposure to the mugshot contaminated the later identification.111 When it comes to including multiple suspects in the same lineup, the Committee adopted the literature’s conclusions that such a practice was inadvisable and recommended that the police guideline be amended accordingly.112 The Committee also recommended recording witness confidence shortly after an identification, by asking 108 Minutes of the Public Committee for the Prevention and Amendment of False Convictions, pp. 13 – 14 (21. 2. 2019). 109 Public Committee for the Prevention and Amendment of Wrongful Convictions, Interim Report: Identification by Eyewitnesses – Recommendations of the Public Committee for the Prevention and Amendment of Wrongful Convictions, pp. 26 – 27 (2. 9. 2019). 110 Public Committee for the Prevention and Amendment of Wrongful Convictions, Interim Report: Identification by Eyewitnesses – Recommendations of the Public Committee for the Prevention and Amendment of Wrongful Convictions, pp. 24 – 26 (2. 9. 2019). 111 Public Committee for the Prevention and Amendment of Wrongful Convictions, Interim Report: Identification by Eyewitnesses – Recommendations of the Public Committee for the Prevention and Amendment of Wrongful Convictions, pp. 21 – 22 (2. 9. 2019). 112 Public Committee for the Prevention and Amendment of Wrongful Convictions, Interim Report: Identification by Eyewitnesses – Recommendations of the Public Committee for the Prevention and Amendment of Wrongful Convictions, p. 24 (2. 9. 2019).

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witnesses to describe their level of confidence in their own words. The Committee stressed that while a witness’ level of confidence should be considered by the courts when conveyed immediately upon making the identification, no weight should be attributed to later confidence statements, made after the witness had already received feedback.113 Thus, if the committee’s recommendations are implemented, the rules for conducting identification procedures in Israel will become consistent with the most important best practices advocated in the literature, making Israel one of the first countries to adopt all suggested safeguards against erroneous eyewitness identification.114 More importantly, implementing the recommendations will make eyewitness testimony in Israel more accurate, potentially preventing wrongful convictions. It is therefore regrettable that as of December 2022 – more than three years after the publication of the Committee’s interim report – the police has yet to amend its guideline in accordance with the recommendations. The required amendments are relatively simple to implement and one can only hope that they will be put into practice soon. Bibliography Aderet, Ofer/DPA: Convicted Nazi Criminal John Demjanjuk Dies at 91, 17. 3. 2012 https:// www.haaretz.com/jewish/2012-03-17/ty-article/convicted-nazi-criminal-john-demjanjukdies-at-91/0000017f-dc73-db5a-a57f-dc7b9fa60000 (accessed at 4. 5. 2023). Borchard, Edwin M.: Convicting the Innocent, Sixty-five Actual Errors of Criminal Justice, New York 1932. Brown, Evan et al.: Memory for Faces and the Circumstances of Encounter, Journal of Applied Psychology Vol. 62 No. 3, 1977, pp. 311 – 318. Bruce, Vicki/Young, Andy: In the Eye of the Beholder: The Science of Face Perception, Oxford 1998. Clark, Steven E./Rush, Ryan A./Moreland, Molly B.: Constructing the Lineup: Law, Reform, Theory and Data, in: Cutler, B. L. (ed.): Reform of Eyewitness Identification Procedures, 2013, pp. 87 – 112. Connors, Edward et al.: Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, U.S. Department of Justice, National Institute of Justice, 1996. Culter, Brian L. et al.: The reliability of eyewitness identification: The role of system and estimator variables, Law and Human Behavior Vol. 11 No. 3, 1987, pp. 233 – 258. 113 Public Committee for the Prevention and Amendment of Wrongful Convictions, Interim Report: Identification by Eyewitnesses – Recommendations of the Public Committee for the Prevention and Amendment of Wrongful Convictions, p. 13 (2. 9. 2019). For other recommendations made by the committee, see pages 27 – 30. 114 Fitzgerald et al., in: Smith et al. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, at appendix, tables 2 – 5. However, as Fitzgerald et al. note, the reviewed guidelines are unlikely to accurately represent all practices in use.

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Deffenbacher, Kenneth A./Bornstein, Brian H./Penrod, Steven, D.: Mugshot exposure effects: Retroactive interference, mugshot commitment, source confusion, and unconscious transference, Law and Human Behavior Vol. 30 No. 3, 2006, pp. 287 – 307. Del Pizzo, Lisa J.: Not Guilty – But Not Innocent: An Analysis ot the Acquittal of John Demjanjuk and its Impact on the Future of Nazi War Crimes Trials, Boston College International and Comparative Law Review Vol. 18 No. 1, 1995, pp. 137 – 178. Fitzgerald, Ryan J. et al.: Eyewitness Identification Around the World, in: Smith, Andrew M./ Toglia, Michael P./Lampinen, James M. (eds.), Methods, Measures, and Theories in Eyewitness Identification Tasks, Abingdon 2021, pp. 294 – 322. Fitzgerald, Ryan J. et al.: Eyewitness Identification: Live, Photo, and Video Lineups, Psychology, Public Policy, and Law Vol. 24 No. 3, 2018, pp. 307 – 325. Fitzgerald, Ryan J. et al.: The Effect of Suspect-Filler Similarity on Eyewitness Identification Decisions: A Meta-Analysis, Psychology, Public Policy and Law Vol. 19 No. 2, 2013, pp. 151 – 164. Garrett, Brandon L.: Convicting the Innocent – Where Criminal Prosecutions Go Wrong, Cambridge 2011. Greathouse, Sarah M./Kovera, Margaret Bull: Instruction Bias and Lineup Presentation Moderate the Effects of Administrator Knowledge on Eyewitness Identification, Law and Human Behavior Vol. 33 No. 1, 2009, pp. 70 – 82. Innocence Project, Explore the Numbers: Innocence Project’s Impact, available at: https://inno cenceproject.org/exonerations-data/ (accessed at 12. 7. 2022). Israel Police Directives, Procedures for Conducting Identification Lineups, 300.04.005 (1. 2. 2014). Israel Police Guidance, Rules for Providing Information and/or Reviewing the Details of those Photographed and/or Photos Presented to an Eyewitness Following a Process of Identifying Suspects in the Police Album, 029.50.370.C01 (2. 7. 2019). Levi, Avraham M.: Research note: Evidence for Moving to an 84-person Photo Lineup, Journal of Experimental Criminology Vol. 3 No. 4, 2007, pp. 377 – 391. Lindsay, R. C. L. et al.: Simultaneous Lineups, Sequential Lineups, and Showups: Eyewitness Identification Decisions of Adults and Children, Law and Human Behavior Vol. 21 No. 4, 1997, pp. 391 – 404. Lindsay, R. C. L./Bellinger, K. J.: Alternatives to the sequential lineup: the importance of controlling the pictures, The Journal of Applied Psychology Vol. 84 No. 3, 1999, pp. 315 – 321. Lindsay, R. C. L./Wells, Gary L.: What Price Justice? – Exploring the Relation of Lineup Fairness to Identification Accuracy, Law and Human Behavior Vol. 4 No. 4, 1980, pp. 303 – 313. Maclean, Carla et al.: Post-Identification Feedback Effects: Investigators and Evaluators, Applied Cognitive Psychology Vol. 25 No. 5, 2011, pp. 739 – 752. Malpass, Roy S./Devine, Patricia G.: Eyewitness Identification: Lineup Instructions and the Absence of the Offender, Journal of Applied Psychology Vol. 66 No. 4, 1981, pp. 482 – 489. Megreya, Ahmed M./Burton, A. Mike: Unfamiliar Faces Are Not Faces: Evidence from a Matching Task, Memory & Cognition Vol. 34, 2006, pp. 865 – 876.

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Meissner, Christian A. et al.: Eyewitness Decisions in Simultaneous and Sequential Lineups: A Dual-process Signal Detection Theory Analysis, Memory & Cognition Vol. 33 No. 5, 2005, pp. 783 – 792. Menashe, Doron/Assy, Rabeea: Mistaken Facial Identification of Suspects, Mishpatim – The Hebrew University Law Journal Vol. 35 No. 1, 2005, pp. 205 – 329 (Hebrew). Mickes, Laura: Receiver Operating Characteristic Analysis and Confidence–Accuracy Characteristic Analysis in Investigations of System Variables and Estimator Variables that Affect Eyewitness Memory, Journal of Applied Research in Memory and Cognition Vol. 4 No. 2, 2015, pp. 93 – 102. Minutes of the Public Committee for the Prevention and Amendment of False Convictions, pp. 9 – 16 (21. 2. 2019). National Academies of Science: Identifying the Culprit – Assessing Eyewitness Identification, Washington D.C. 2014. Parker, Janat Fraser/Carranza, Lourdes E.: Eyewitness testimony of children in target-present and target-absent lineups, Law and Human Behavior Vol. 13 No. 2, 1989, pp. 133 – 149. Public Committee for the Prevention and Amendment of Wrongful Convictions, Interim Report: Identification by Eyewitnesses – Recommendations of the Public Committee for the Prevention and Amendment of Wrongful Convictions (2. 9. 2019). Rivlin, Eliezer: Israel as a Mixed Jurisdiction, McGill Law Journal/Revue de droit de McGill Vol. 57 No. 4, 2012, pp. 781 – 790. Saks, Michael J. et al.: Toward a Model Act for the Prevention and Remedy of Erroneous Convictions, New England Law Review Vol. 35 No. 3, 2001, pp. 669 – 683. Sangero, Boaz: Applying the Stamp Safety Model to Prevent False Convictions Based on Eyewitness Misidentifications, Albany Law ReviewVol. 83 No. 3, 2020, pp. 931 – 963. Sangero, Boaz: Safety from False Convictions, Jerusalem 2016. Sangrigoli, Sandy et al.: Reversibility of the other-race effect in face recognition during childhood, Psychological Science Vol. 16 No. 6, 2005, pp. 440 – 444. Scheck, Barry/Neufeld, Peter/Dwyer, Jim: Actual Innocence: Five Days to Execution, and Other Dispatches From the Wrongly Convicted, New York 2000. Simon, Dan: In Doubt – The Psychology of the Criminal Justice Process, Cambridge 2012. Sporer, Siegfried L. et al.: Choosing, Confidence, and Accuracy: A Meta-analysis of the Confidence-Accuracy Relation in Eyewitness Identification Studies, Psychological Bulletin Vol. 118 No. 3, 1995, pp. 315 – 327. Steblay, Nancy K. et al.: Double exposure: The Effects of Repeated Identification Lineups on Eyewitness Accuracy, Applied Cognitive Psychology Vol. 27 No. 5, 2013, pp. 644 – 654. Steblay, Nancy K. et al.: Eyewitness Accuracy rates in Sequential and Simultaneous Lineup Presentations: A Meta-Analytical Comparison, Law and Human Behavior Vol. 25 No. 5, 2001, pp. 459 – 473. Steblay, Nancy K.: Social influence in eyewitness recall: A Meta-Analytic Review of Lineup Instruction Effects, Law and Human Behavior Vol. 21 No. 3, 1997, pp. 283 – 297.

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Condign Punishment Appropriate to the Extent of Proof By Yaniv Vaki*

I. Introduction According to the prevailing approach, the punishment stage is understood as separate and independent from the culpability stage. The criminal trial consists of two separate stages: the culpability stage, which ends with a verdict, and the punishment stage, which ends with a sentence. Each stage has its separate characteristics and procedure for hearing evidence. According to the formal criminal procedure, guilt must be proved with a level of certainty “beyond a reasonable doubt.” When this level of certainty is reached, the punishment no longer depends on the evidentiary structure on which the conviction is based. In meting out the punishment, this regime does not consider the amount of proof or the strength of the evidence that formed the basis for the conviction. As is customary according to this approach, it is not possible at the punishment stage to go back to the evidence that served as the basis for the conviction, and there is no place to distinguish between convictions according to the amount of proof on which they were based. It does appear however that convictions differ from each other according to the amount and quality of the evidence underlying them. In this article, I present (descriptively) and adopt (normatively) a proposal according to which the punishment is determined based on the strength of the evidence and the amount of proof used for conviction.

* Prof. Dr. Yaniv Vaki is the Head of the Israeli Institute of Practical Criminal Law, College of Management Academic Studies. This article is part of a book in the honor of Justice Yoram Danziger. He served on the Supreme Court of Israel and handed down important verdicts in all areas of the law, repeatedly challenging accepted concepts concerning reasonable doubt and the security required for conviction. This article is dedicated to Justice Danziger with great love and appreciation. I wish to thank the Research Authority Fund of the College of Management Academic Studies, Rishon Le’Zion, Israel, for funding the study leading to this publication.

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II. The Traditional Model: Separation Between the Culpability and Punishment Stages The separation of the criminal procedure in common law countries, into the verdict and sentence stages1 finds expression not only in statutory procedural arrangements but also in the research literature and academia. In Israel, unlike in most Anglo-American legal methods, despite the separation between the stages, the same judge hears both stages, conducts the hearing, and rules in each stage.2 According to the traditional understanding, there is a complete separation between the two stages of the trial. The punishment stage is separate from the culpability stage and independent of it, and the question of establishing guilt is independent of the punishment. Ruling on criminal responsibility is perceived as an objective and analytical stage. By contrast, sentencing is considered to deal with moral, valuebased issues, based on the characteristics of the concrete case.3 Therefore, for the most part, the first stage is perceived as being conducted according to objective standards, and at its completion, a legal decision is given. By contrast, the second stage is perceived as one that combines personal-emotional considerations, and at its completion, a value-based decision is given.4 The sentencing procedure is conducted after the criminal responsibility has been proven and the accused was convicted. The conviction nullifies the defendant’s presumption of innocence and sentencing becomes mandatory. According to this approach, at the sentencing stage, the facts are forgotten, all doubts disappear, and the conviction is considered safe, certain, and clear of any doubt.

1

In the continental legal system, there is no separate procedure for discussing the question of punishment and handing down a sentence, and the decision on guilt and punishment is made in combination. See Horovitz, The Judgement Procedure: Deliberative and Evidential Aspects, 11 (Hebrew). 2 In most countries that adhere to the Anglo-American judicial system the jury is entrusted with the decision in the first stage, whereas determining the punishment is entrusted to a judge, although in some countries the jury is involved also in decisions at the punishment stage. The same is true for the imposition of the death penalty, in which the jurors also take part. See Horovitz, The Judgment Procedure, supra note 1, at p. 34; Lanni, Jury Sentencing in Noncapital Cases: An Idea Whose Time Has Come Again?, Yale Law Journal 108 (1999), pp. 1775 – 1803. 3 The distinction between the culpability and the punishment stages did not exist for a long time, and for hundreds of years, the two were conducted in a common procedure. There is disagreement between scholars about the exact date when a separate procedure was created to issue the sentence. Some claim that the separate procedure for sentencing started in the 19th century. Others argue that already in the second half of the 18th century, a separate hearing stage was held to discuss the sentence. For an instructive discussion of the historical process that led to the division of the trial into two separate phases, see Horovitz, The Emergence of Sentencing Hearings, Punishment and Society 9 (2007), 271. 4 Silving, “Rule of Law” in Criminal Justice, in: Mueller/Gault/Hein (eds.), Essays in Criminal Science, p. 82.

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III. Dependence Between the Culpability and Punishment Stages The distinction between the decision to convict and the punishment that follows is not absolute. In practice, the two decisions, one dealing with the guilt of the accused, the other pronouncing their sentence, are combined. The traditional approach does not appear consistent with the way decisions are made in practice and does not truly reflect the criminal decision-making process. The dependence of the culpability and the punishment stages is manifested in two ways and in both directions. The punishment affects the strength of the evidence required for conviction, and the strength of the evidence at the basis of the conviction affects the punishment. Already in the 18th century, the Italian scholar Cesare Beccaria5 pointed out the relationship between the severity of the punishment and the strength of the evidence required for conviction. He argued that the more severe and cruel the punishment, the more inclined the court would be to acquit the defendants, who otherwise would have been convicted. According to him, the courts seek to avoid imposing punishments prescribed by law that in his view are too severe, even at the cost of acquittal.6 It is possible to find indications that in many cases, decision-makers preferred to acquit or convict on a lesser charge even when the evidence allowed convicting the defendant convicted on a more serious charge.7 The reason was to avoid imposing the death penalty, which in the past was one of the most common punishments for many crimes.8 Studies have shown that the amount and degree of proof needed for conviction are directly affected by the expected punishment, and that there is a balance between the degree of punishment and the degree of certainty of conviction. Studies indicate a direct relationship between the degree of certainty required and the expected punishment, the degree of certainty required for a conviction being affected by the harm that may be caused by its results. The more severe the punishment, the higher the level of certainty required. Studies have revealed the natural tendency of judges to adjust the

5

Beccaria, On Crimes and Punishments, 13 (H. Paolucci trans., 1963). This served as one of the main reasons for changing the perception in those days, which advocated harsh punishment, to an approach in which only the maximum punishments were determined, leaving the court wide discretion in determining the punishment according to the circumstances of the case. Shoham/Shavit, Offenses and Punishments: An Introduction to Penology, pp. 84 – 85 (Hebrew). 7 This practice was so common that it was considered one of the hallmarks of English criminal law at the time. See, for example: Beattie, Crime and the Courts in England 1660 – 1800, p. 424. 8 Hay, The Criminal Prosecution in England and Its Historians, Modern Law Review 47 (1984), pp. 4 – 5. 6

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degree of caution they exercise when convicting the accused to the expected punishment.9 Another study indicated that decision makers were influenced not only by the seriousness of the offense but also by the expected punishment for it.10 In this study, participants were asked to read a summary of the facts of first-degree murder, second-degree murder, and manslaughter trials, and were told the punishments that the defendant might receive if convicted (for example, in the case of first-degree murder, the punishment could be between 25 years and life imprisonment or the death penalty). As expected, participants preferred to avoid conviction when the accused was exposed to more severe punishment and demanded broader and more solid evidence.11 Another instance in which the two stages are merged into one can be found in cases in which the judges or the jury convict the defendant of a lesser charge than that contained in the indictment to reduce the punishment. In some cases, defendants have been acquitted only because of the punishment expected if they were convicted.12

9 Hastie conducted more than 15 empirical studies on the subject, in which judges, citizens, and students stated their views on the degree of certainty required to meet the requirement of security in conviction. The results indicated a wide spectrum, ranging from 51 % to 92 %. All groups demanded a higher level of persuasion if the expected punishment was more severe: Hastie, Algebraic Models of Decision Processes, in: Hastie (ed.), Inside the Juror: The Psychology of Juror Decision-Making 84, pp. 101 – 106; see also, Simon/Mahan, Quantifying Burdens of Proof: A View from the Bench, the Jury, and the Classroom, Law and Society Review 5 (1971), pp. 325, 329; Simon, Judges’ Translations of Burdens of Proof into Statements of Probability, Trial Lawyer’s Guide, pp. 103 – 114. 10 Kerr, Severity of Prescribed Penalty and Mock Jurors’ Verdicts, Journal of Personality and Social Psychology 36 (1978), p. 1431. 11 Compare with Freedman, Penalties and Verdicts: Keeping the Record Straight, Law and Human Behavior 18 (1994), p. 699; Freedman/Krismer/MacDonald/Cunningham, Severity of Penalty, Seriousness of the Charge, and Mock Jurors’ Verdicts, Law and Human Behavior 18 (1994), p. 189. By contrast, Kaplan and Krupa argued that the degree of punishment affects the decision only when the evidence to prove guilt is relatively weak or when it is a real case (as opposed to a simulation), another factor being the identity of the person pronouncing the sentence in case of conviction: Kaplan/Krupa, Severe Penalties Under the Control of Others Can Reduce Guilt Verdicts, Law and Psychology Review 10 (1986), 1. 12 For example, a minor was acquitted of a charge of negligent driving, despite what appeared to be solid evidence to prove his guilt. The judge, who was disturbed by the jury’s decision, asked to receive the reasons for it. The jurors explained that they believed (mistakenly) that the defendant might be sent to prison. Such a punishment was not proportionate, in their opinion, to the offense and might have led the minor to criminal activity, which they sought to avoid. See, Stoffelmayr/Seidman, The Conflict between Precision and Flexibility in Explaining “Beyond a Reasonable Doubt”, Psychology, Public Policy, and Law 6 (2000), p. 782.

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It appears, therefore, that there is a dependence between the stages of determining culpability and imposing punishment.13 The breakdown of judicial decision-making during the first stage reveals that it is a complex, multi-stage process that may involve a series of steps, including identifying the facts of the case, ascribing weights to them, and considering the consequences of various decisions. In his book, The Origins of the Reasonable Doubt, Whitman insisted that in the continental legal system, in the past, judges were given the option to convert severe punishments (blood punishments) into lighter ones when their degree of certainty about their guilt was lower. These punishments were called “punishments on suspicion,”14 matching the degree of certainty of guilt with the degree of punishment:15 “The new system was thus one in which judges ordered lesser punishments on lesser degrees of certainty.”16 Michel Foucault described accurately the sequence of degrees of punishment according to the sequence of levels of proof and degrees of certainty of guilt: [A] semi-proof did not leave the suspect innocent until such time as it was completed; it made him semi-guilty; slight evidence of a serious crime marked someone as slightly criminal. In short, penal demonstration did not obey a dualistic system: true or false; but a principle of continuous gradation; a degree reached in the demonstration already formed a degree of guilt and consequently involved a degree of punishment.17 13 Another expression of this dependence is also found in the rules used in American law for proving facts regarding punishment. According to these rules, there is a distinction between the requirement of proof of the various circumstances and the extent of their influence on the punishment. In the case of aggravating circumstances that have a decisive effect on the punishment, a higher degree of proof is required, and vice versa. There is a balance between the degree of proof required to prove the relevant circumstances (aggravating vs. mitigating) and their consequences on the punishment that will be imposed. See Martin, A Balanced Performance on Sentence: Some Comments on the Modern Role of Defense Counsel in the Sentencing Process, Criminal Law Review 15 (1991), p. 268. 14 Whitman, The Origins of “Reasonable Doubt”, p. 187. 15 In her book about the development of the standard of proof, Shapiro noted that in the Roman canonical trial, the “trial by ordeal” method was replaced by the inquisitorial method, designed to achieve the “full proof” degree of proof based on a system of investigation conducted by professional judges. For “full proof,” two witnesses or a defendant’s confession were required, and when this was achieved, the conviction was automatic and the defendant was sentenced to “full punishment.” If “full proof” was not obtained, for example, in the case of only one testimony or of circumstantial evidence, the conviction was based on “partial proof” or “half proof,” and a “partial punishment” was imposed. Shapiro, “Beyond Reasonable Doubt” and “Probable Cause”: Historical Perspectives on the Anglo-American Law of Evidence, p. 3. See also, Bray, Not Proven: Introducing a Third Verdict, University of Chicago Law Review 72 (2005), p. 1308; Langbein, Torture and the Law of Proof: Europe and England in the Ancien Regime, p. 47. 16 Ibid. 17 Foucault, Discipline and Punish: The Birth of the Prison, 42. Also, there is an indication in the Bible that the degree of punishment was adapted to the evidence. Thus, the imposition of severe punishments depended on strict laws of evidence that often prevented their imposition. For example, although according to Torah law the punishment for the crime of murder was

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Studies show that even when the judges or jurors were convinced beyond reasonable doubt of the defendant’s guilt, they mentioned certain doubts that remained and considered them when sentencing the defendant.18 These studies indicate that even after the guilty verdict has been reached, at the punishment stage, jurors occasionally questioned the strength of the evidence that led to the conviction.19 Similarly, cases were observed in which jurors continued, even during the punishment stage and after conviction, to wrestle with doubts about the question of guilt.20 These doubts were at the center of the discussion of the punishment and greatly influenced its degree.21 Guilt is determined by the degree of certainty in the conviction and the degree of confidence in it, as it is expressed by the evidence that led to the death, it was determined that the murderer would not be put to death unless he did the deed in the presence of two witnesses. Additional conditions needed to be met: the deed had to be done intentionally and the two witnesses who testified to the murderer had to be told what the expected punishment of the murderer was. See Rambam, Sanhedrin Laws 12, 1. In his book, Whitman links the development of the criminal standard of proof and the requirement of “beyond a reasonable doubt” to a religious Christian concept of the spiritual risk incurred by judges and juries when they convicted defendants. He argues that because of this risk, decision makers who were people of faith refrained from convicting whenever they were not absolutely certain of the defendant’s guilt, not to harm their safety and to avoid burdening their conscience. This way was called “the safe path.” An alternative path was conviction on a lesser charge than the one the defendant was accused of. In this way, judges and juries balanced the personal interest in protecting themselves with the public interest in promoting and maintaining the law enforcement system. Whitman, The Origins of “Reasonable Doubt”, supra note 15, at p. 196. 18 See, Treadway, “Residual Doubt” in Capital Sentencing: No Doubt it is an Appropriate Mitigating Factor, Case Western Reserve Law Review 43 (1992), pp. 231 – 235, describing two studies indicating that the existence of “residual doubt” influences them when sentencing a convicted person, even when they are sure of the conviction. 19 Eisenberg/Wells, Deadly Confusion: Juror Instructions in Capital Cases, Cornell Law Review 79 (1993), p. 5, at tbl. 1. The authors point out that this was true not only in the case of the death penalty, but that in death penalty cases the jurors spent more time on the question “how weak or strong the evidence of guilt was.” 20 Koosed, Averting Mistaken Executions by Adopting the Model Penal Code’s Exclusion of Death in the Presence of Lingering Doubt, Northern Illinois Law Review 21 (2001), p. 55. See the many studies cited there, which confirm that the jurors deal with these doubts when talking to each other at the stage of determining the punishment. Of all the circumstances relevant to the punishment, the degree of certainty in the conviction occupies the most central place: Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, Cornell Law Review 83 (1998), p. 1559; Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, Columbia Law Review 98 (1998), p. 1563: “residual doubt over the defendant’s guilt is the most powerful ‘mitigating’ fact.” 21 Bowers/Sandys/Steiner, Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt-Trial Experience, and Premature Decision making, Cornell Law Review 83 (1998), p. 1535, whose conclusion was that: “By far, the strongest mitigating factor was lingering doubt.” See also: Geimer/Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, American Journal of Criminal Law 15 (1998), p. 28: “[The lingering doubt is] the most often recurring explanatory factor in the life recommendation.”

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conviction; but doubt persists in the mind of the jurors even after the defendant was found guilty “beyond a reasonable doubt.” In terms of nature, these are residual doubts or lingering doubts.22 Many studies that examined the extent to which these doubts influenced the punishment stage led to the unequivocal conclusion that their influence on the punishment was decisive: “These data make it clear that lingering doubt, when it is present, is an integral element in forming a reasoned moral judgment about punishment. Indisputably, lingering doubt plays a central role in jurors’ thinking about what punishment the defendant deserves.”23

Some US states recognize these doubts and allow juries to consider them as “mitigating circumstances” when the punishment is the death penalty.24 Even The American Model Penal Code proposed to avoid the death penalty when such doubts remain about the guilt of the accused: Death Sentence Excluded. When a defendant is found guilty of murder, the Court shall impose sentence for a felony of the first degree if it is satisfied that […] (f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant’s guilt.25

22 Treadway stated the nature of these doubts: “This ‘lingering’ or ‘residual’ doubt is not necessarily ‘fanciful’ or ‘whimsical’ in reality. It can be genuine, based on the evidence of the case, and not on the imagination of the juror,” Treadway, “Residual Doubt” in Capital Sentencing, supra note 18, at 229, 230. These doubts were described by Koosed as follows: “[A] doubt that is experienced, discussed and ultimately remains, though it does not yield an acquittal of the crime or a negative finding as to the aggravating factor. It may not be a ‘reasonable doubt’ but it is a real doubt nonetheless,” Koosed, Averting Mistaken Executions, supra note 20, at p. 55. After reviewing the many studies conducted on the subject, Koosed concluded that: “These data reveal that doubt about the defendant’s guilt is both a fundamental and abiding moral concern of jurors in deciding the appropriate punishment […] Jurors who have such doubts are manifestly unwilling to ignore them in making their punishment decisions” (p. 58). 23 Bowers/Sandys/Steiner, Foreclosed Impartiality in Capital Sentencing, supra note 21, at p. 1536. 24 Treadway, “Residual Doubt” in Capital Sentencing, supra 18 at p. 215; Jungman, Beyond All Doubt, Georgetown Law Journal 91 (2003), p. 1088. According to Treadway and Jungman, even in countries where it was forbidden to instruct the jurors to consider these doubts, it was found that they took these doubts into account when imposing punishment. All the authors called for recognizing these doubts and considering them in the case of the death penalty. For example, Jungman suggested adopting the guidelines in Mandatory Justice: Eighteen Reforms to the Death Penalty (The Constitution Project) 41 (2001), available at: www.constitutionproject.org/dpi/MandatoryJustice.pdf: “If you have any lingering doubt as to the defendant’s guilt of the crime or any element of the crime, even though that doubt did not rise to the level of reasonable doubt when you found the defendant guilty, you may consider that doubt as a mitigating circumstance weighing against a death sentence for the defendant.” 25 Model Penal Code, § 210.6(1)(f) (2000), as stated in, Jungman, Beyond All Doubt, ibid. at p. 1084.

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In American jurisprudence, there is reference to the doubts remaining in the minds and hearts of the jurors even after they have convicted the accused and the case has been determined based on mitigating circumstances regarding the punishment (death). The degree of certainty of guilt affects the degree of punishment. This degree of certainty is “a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty,’”26 and it is not sufficient to impose the death penalty. The doubts that remain despite the conviction being given with certainty beyond a reasonable doubt cause jurors to lighten the defendant’s sentence and avoid the death penalty. Although each stage of the trial is characterized by different legal orders and evidence, and although each stage has a separate beginning and end, there is a dependence between the two stages, indeed, a close interrelationship between them,27 and the two are in a relation of mutual exchange. Any observation or reference to each of the stages separately is artificial and flawed. There is a two-way relationship between the degree of punishment and the degree of certainty in the conviction,

IV. Distinguishing Between Convictions Based on the Underlying Evidence The regime of proof in criminal law is based on a variable degree of conviction according to different amounts of proof. This results in levels of convictions that differ from each other in the strength of the evidence on which they are based. The claim that in criminal law the degree of certainty in a conviction can vary from case to case was confirmed in studies conducted in the US. These studies show that, in some cases, judges and juries are satisfied with varying degrees of certainty, that the level of certainty sufficient for a conviction is not necessarily high, and at times it reaches the level of a mere balance of probabilities.28 For example, in one of the stud26 Franklin v. Lynaugh, 487 U.S. 164, 188 (1988); and elsewhere: “There may be no reasonable doubt – doubt based on reason – and yet some genuine doubt exists;” and again: “It may reflect a mere possibility; it may be the whimsy of one juror or several. Yet this whimsical doubt – this absence of absolute certainty – can be real,” Smith v. Balkcom, 660 F.2d 573, 580 (5th Cir. 1981). 27 For additional examples that illustrate the interrelationships between these two stages, see, Vaki, Appropriateness between the degree of punishment and the degree of certainty in a conviction, Hamishpat 26 (2008), p. 79 (Hebrew); Fisher, Constitutionalism and the Criminal Law: Rethinking Criminal Trial Bifurcation, University of Toronto Law Journal 61 (2011), p. 811, which challenges the existing descriptive and normative approach, and proposes a probabilistic punishment model that takes into account the degree of certainty of conviction; see also, Danziger/Thimana, Reexamination of the majority decision rule and a proposal for change, The Public Defender 234 (2016), p. 11 (Hebrew). 28 Hastie, Contents of Jury Deliberation, in: Hastie/Penrod/Pennington (eds.), Inside the Jury, pp. 101 – 106; Simon, “Beyond a Reasonable Doubt,” An Experimental Attempt at Quantification, Journal of Applied Behavioral Science 6 (1970), p. 207; MacCoun, Modeling the Impact of Extralegal Bias and Defined Standards of Proof on the Decisions of Mock Jurors

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ies, the standard required for deciding crimes was rated between 74 % and 80 %;29 in another study, it was between 52.5 % and 80 %.30 A similar conclusion, according to which criminal convictions depend on a variable amount of proof and the strength of the evidence underlying each conviction varies also arises with regard to the application of the standard of proof.31 This inevitably affects the amount of proof and the strength of the evidence needed for conviction. For example, following the story model, determining the facts by comparing versions and choosing the best one requires a different amount of proof for conviction than in the inductive proof model, where conviction is based on the negation of other possible alternative inferences in light of the evidence. The inductive probability approach describes the accumulation of evidence that produces “inductive support” for a certain factual hypothesis, unlike the decision that is satisfied with the best of those presented, without a requirement for external validation with a high likelihood. The inductive model describes a process based on the examination of all the evidence and existing information sources, and the systematic elimination of possibilities for “refutation” of the guilt thesis. According to this decision model, the degree of certainty of the conviction may vary from case to case, so that the more resistant a claim is to attempts at refutation, the higher its inductive value and the closer it comes to “evidentiary perfection”. The attempt to classify or refute the guilt hypothesis is carried out using the existing information sources and examining the availability of the missing information. Convictions differ from each other not only based on the strength of their evidence but also by the level of epistemic certainty regarding the decision to convict. This characterization of the conviction is not explicitly expressed in the legal discussion, but it may create a large gap between the accepted legal meaning of the conviction and the impression the procedure makes on the judicial actors. Therefore, it is necessary to recognize not only one dimension of difference between the various convictions, based on the amount of evidence and its strength required for a decision, but also a dimension concerning the degree of certainty of the decision, that is, the level of epistemic confidence in the certainty of the conviction. In the judicial decision, two axes can be distinguished that describe the degree of certainty of the criminal conviction. One axis reflects the strength of the judge’s belief in the guilt of the accused based on the evidence presented. At the center of this axis is the determination of the defendant’s guilt according to the standard of proof, which concerns the degree of first-order certainty. A parallel axis reflects the level of

and Juries, p. 22; Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, U.C. Davis Law Review 36 (2002), p. 114; Kalvan/Zeisel, The American Jury. 29 Simon, “Beyond a Reasonable Doubt”, ibid. at p. 204. 30 MacCoun, Modeling the Impact, supra note 28, at p. 22. 31 On the various models used for judicial decision making in criminal law, see Vaki, Beyond a Reasonable Doubt: The Flexible Principle of Proof in Israeli Law (Hebrew).

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epistemic certainty of various factual assertions. This axis is concerned with secondorder certainty. Reasonable doubt, the object of the ruling in criminal decision making, reflects the assessment of the subjective doubt in the mind of the fact finder regarding the evidence and the degree of certainty of the conviction based on that evidence. At the same time, the fact finder is concerned with a second-order doubt in the assessment of that certainty. The first-order assessment of doubt concerns the evidence; the second-order assessment of doubt concerns the degree of certainty of the first-order assessment. This is the case, for example, in the case of doubts that arise in the mind of the judge regarding the correct classification of the factual presentation laid out for a decision to convict or acquit. Bertrand Russell distinguished between probabilistic assessments, which in their examination constitute a “first-order discussion,” and assessments regarding the nature of these assessments, which are a “second-order discussion:”32 That a proposition has a certain degree of probability is a new proposition, which we may believe with any degree of certainty from the highest to the lowest. […] We are not considering certainty about the probability of a proposition, but uncertainty about the proposition itself.33

The two characteristics of criminal decision making illustrate the two aspects of the degree of certainty in conviction. Convictions are distinguished from each other not only on the basis of the strength of the evidence underlying them but also of the epistemic certainty of the confidence in the conviction. There is a practical difference between these two axes of certainty, resulting in a scale of convictions derived from both the strength of the evidence and the degree of certainty in the conviction. The judicial process is further limited in time and resources. The factual decision is based on the evidence brought before the court, and not necessarily on all the relevant evidence. The decision must be reached within a given time frame. All these limit the judicial process and prevent it from relying on its merits and on all the evidence that could be presented. Every conviction is based on evidence that differs in quality and strength, and it is necessary to recognize these differences between the convictions.34 Unlike other fields based on researching facts, analyzing data, and making decisions, sentencing in criminal law is unique because of the need for a decisive ruling and because of its practical results. A judge hearing a criminal trial is required to 32 Russell, An Inquiry into Meaning and Truth, p. 62; Brilmayer, Second-Order Evidence and Bayesian Logic, Boston University Law Review 66 (1986), p. 673 et seq.; Cohen, Confidence in Probability: Burdens of Persuasion in a World of Imperfect Knowledge, New York University Law Review 60 (1985), pp. 420 – 421. 33 Russell, Theory of Knowledge, in: Eames/Blackwell (eds.), The Collected Papers of Bertrand Russell, p. 168. 34 See also, Laudan, Truth, Error, and Criminal Law, p. 52, who doubts the possibility of an identical degree of certainty at the basis of every conviction.

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make a binary decision: convict or acquit. In other fields of action, when a sense of “incompleteness” arises or there is no sufficient confidence in the process or the conclusions, many options may be available to exercise control and caution before deciding: additional information may be collected; the decision or publication of conclusions may be suspended; tests can be repeated and additional experiments conducted to verify the validity of the findings; qualified or conditional conclusions or decisions may be reached; various control tools may be deployed. If the issue at hand and its results are especially important, it is possible to base the decisions on a higher level of confidence. The legal process is limited in time and resources. At a given point in time, the judge is required to decide one way or the other. Judges cannot postpone decisions indefinitely and wait in the hope that new information will be discovered. They cannot reproduce experiments or demand that better and more reliable tests be carried out (with hindsight, as we are dealing with fact-finding of events that occurred in the past) or better witnesses located. They cannot hand down a partial or qualified decision or revisit their conclusions from time to time. Only in rare and exceptional cases can “later studies” (retrials) correct errors that were made in the original investigation, and even then it might not be possible to correct irreparable damage and moral injustice that may have been caused. The verdict is final, therefore problems of incompleteness are vital for judges, and they may find their solution in the punishment. It is possible to suggest many and varied reasons leading to the variation between the convictions, aiming to obtain the true measure of the strength of the evidence. To do so, it is necessary to take into account complex factual matters and considerations of the quality, quantity, strength, and sufficiency of the evidence. For example, convictions may differ from each other in the amount of evidence at their basis. Convictions differ based on the varying depth of their evidence. Thus, the nature of the conviction is measured both in relation to the degree of probability arising from the evidence presented and to the amount of evidence and the breadth of information needed for making the factual determination.35 Conviction depends on the amount of information on which it is based and on its quality. Conviction is not based on a single piece of evidence but on a web of diverse intertwined elements that reinforce each other. It is not based on a choice between one version against another but on several combined versions. A defendant’s confession is not considered objective external evidence. A conviction based on circumstantial evidence is not the same as one based on direct evidence. And I note again that the depth of the evidence is measured not only by its quantity but also by its qualitative strength. For example, it makes sense to distinguish between a conviction based on individual evidence, directly related to the accused, and one based on statistical evidence.

35

Compare, Stein, Against ‘Free Proof’, Israel Law Review 31 (1997), p. 582.

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Keynes argued that higher certainty should be attributed to decisions based on more ample evidence: As the relevant evidence at our disposal increases, the magnitude of the probability of the argument may either decrease or increase, according as the new knowledge strengthens the unfavourable or the favourable evidence, but something seems to have increased in either case, we have a more substantial basis upon which to rest out conclusion. I express this by saying that an accession of new evidence increases the weight of an argument. New evidence will sometimes decrease the probability of an argument, but it will always increase its ‘weight.’36

V. The Proposed Model: Condign Punishment, Appropriate to the Strength of the Evidence It follows that an approach that does not recognize the variety of convictions that differ from one another according to the amount and quality of the evidence underlying them is incompatible with the essence of judging. The distinction between the various convictions and the recognition of a hierarchy of convictions based on their degree of certainty should go hand in hand with differential treatment of each conviction. The punishment that should be handed down following the conviction should be appropriate and mindful of the strength of the evidence on which it relies. At the heart of the proposed model is the concept we call “condign punishment.” The proposed approach seeks to make sentencing more accurate and fair by making the degree of guilt and the punishment imposed for it proportional to the degree of certainty of the conviction. According to the proposed model, it will be possible to refine the sentence in close relation to the judicial decision. The proposed model reflects the current situation and has the potential to describe current legal practice more accurately. Apart from the descriptive power of the model, I believe that it should be adopted as a proper normative model.37 The distinction between the various convictions based on their degree of certainty is a consideration for punishment, as it should be. Determining an appropriate pun36 Keynes, A Treatise on Probability, pp. 71 – 78; based on Keynes’ theory, Cohen, The Role of Evidential Weight in Criminal Proof, Boston University Law Review 66 (1986), p. 635 et seq., argued that the probability of evidence alone should not be sufficient for its evidentiary value, and that its weight should also be calculated, in addition to its probability; for a review article see, Kaye, Do We Need a Calculus of Weight to Understand Proof Beyond a Reasonable Doubt?, Boston University Law Review 66 (1986), p. 657 et seq. 37 See also, Lando, The Size of the Sanction Should Depend on the Weight of the Evidence, Review of Law and Economics 1 (2005), p. 277 et seq.; Fisher, Probabilistic Punishment, Tel Aviv University Law Review 32 (2011), p. 515 et seq. (Hebrew); Schuman, Probability and Punishment: How to Improve Sentencing by Taking Account of Probability, New Criminal Law Review 18 (2015), p. 214 et seq.; Picinali, Do Theories of Punishment Necessarily Deliver a Binary System of Verdicts? An Exploratory Essay, Criminal Law and Philosophy 12 (2018), pp. 555 – 574.

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ishment is a consequence of the desire to do relative justice to all who may be affected by the decision, as well as to assign adequate weight to the underlying evidentiary dimension. Its advantage lies in the flexibility it allows, reflecting the complexity of reality and its nuances. There is no justification to assign in advance an equal result for all types of convictions without taking into account their degree of certainty, nature, reasons, effects, and results. The condign punishment model applies only after the court has been persuaded of the defendant’s guilt, making conviction possible. Even then, however, allowances must be made in punishment for the doubts that remain regarding the conviction, the strength of the evidence underlying it, and the degree of its certainty.38 The match between the degree of proof and the level of punishment is not unique to the condign punishment model. In the case of plea agreements, the punishment is affected by the level of proof when the parties “trade” discounts relating to the degree of proof and the scope of punishment. Under the plea arrangement regime, the accused renounces the increased degree of proof the prosecution would be required to prove the charges in exchange for receiving a reduced sentence. In the classic plea agreement, where the accused waives the demand for solid criminal proof of guilt, a balance is struck between the degree of proof and the degree of punishment. In the proposed model, it is possible to optimally balance the two main ideals competing for primacy in the criminal procedure: the protection of the innocent and the ascertainment of the factual truth. It upholds the principle of protection in its broadest sense by reducing the damage caused by the convictions of innocent people. At the same time, it also upholds additional values and interests that must be taken into account. Chief among these is the value of revealing the truth, which also entails the desire to reduce the number of false convictions, increase the effectiveness of the criminal procedure, and ensure its power to deter, for the protection of the public peace. According to the prevailing approach, the goal of the principle of protection is the reduction of the number of wrongful convictions.39 But it may be argued that the principle of protection also seeks to reduce the damage caused by wrongful convictions.40 Punishment according to the proposed model fits the criminal decision-making strategy which tends to favor the accused and seeks to take into account the fear of error, and which is designed to minimize the risk and damage involved in convicting an innocent person. As the degree of confidence in the conviction decreases, the punish38 See the model proposed by Lando, according to which the applicability of graduated punishment should be reduced only to convictions based on a degree of certainty beyond a reasonable doubt; Lando, The Size of the Sanction, supra note 37. 39 Lillquist, Recasting Reasonable Doubt, supra note 28, at p. 89. 40 For a similar opinion, see Lillquist, Absolute Certainty and the Death Penalty, American Criminal Law Review 42 (2005), p. 53: “[T]he standard of proof ought to be set by balancing the harm that will result from erroneous acquittals against the harms that arise from erroneous convictions.”

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ment decreases accordingly. The proposed model also allows the reduction of the damage that may be caused by wrongful convictions, without setting an insurmountable bar in the form of proof beyond any doubt that would prevent the guilty from being punished.41 Implementation of the proposed model advances the goal of the criminal procedure to protect the innocent, reducing the damage from false convictions to the minimum possible, without harming other values and interests. Grading punishment based on the type of conviction42 serves as a safety net added to the standard of proof and minimizes harm to the innocent. From the point of view of revealing the truth, it can even be assumed that punishment according to the proposed model can reduce the number of false convictions. First, the proposed model encourages law enforcement authorities not to be satisfied with individual evidence even if they can achieve a conviction, and to make every possible effort to collect the most evidence in each case. Second, because the fear of punishing the innocent increases as the punishment increases,43 adjusting the punishment to the degree of certainty in the conviction avoids false acquittals when the guilt of the accused is established beyond a reasonable doubt. The proposed model also helps realize the fundamental value of justice in punishment. Without elaborating on the topic of punishment, its justification, and goals, which are wide-ranging issues with legal, philosophical, criminological, and sociological aspects, it is possible to see that the adequacy of punishment and the nature of the conviction reflect basic principles of justice and fairness. Proportionality based on considerations of justice and fairness is a principle of justice that limits punishment that exceeds its goals. Such proportionality reflects the principles of morality and the public’s concept of justice. Only when the punishment fits the nature of the conviction, can the public be sure that criminals get their “just deserts.” In this way, the public’s trust in the fairness of the system is maintained. As part of the protection of human rights, the proposed adequacy requirement appears to be of constitutional importance, as it rests on the principles of justice and fairness. It expresses a basic requirement of justice and does not depend on the punishment policy of the system. Proportionality is derived from the importance of the 41 See, Morano, A Reexamination of the Development of the Reasonable Doubt Rule, Boston University Law Review 55 (1975), p. 510, n. 34, who points to periods in history where a proof standard of “beyond all doubt” was required, which thwarted any possibility of convicting defendants. 42 By the words “the type of criminal conviction” I mean the distinction between convictions based on the degree of confidence required for the conviction, or in other words, according to the degree of trust that can be attributed to it. The required degree of conviction is met not only by the existence of the required degree of proof. It is also measured, among others, by the amount of evidence presented in court. Thus, the type of conviction is measured both in relation to the probability arising from the evidence submitted, and in relation to the amount of evidence and information used in making the factual decision. 43 Andreoni, Reasonable Doubt and the Optimal Magnitude of Fines: Should the Penalty Fit the Crime, Rand Journal of Economics 22 (1991), p. 385 et seq.

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value of human dignity on one hand, and from the limitation of the powers of society and the state in punishing individuals on the other. The importance of proportionality also arises from the need to maintain public trust in the legal system. According to its expressive function, punishment reflects the degree of condemnation and disgust that society has for criminals because of their actions. More certain guilt requires more severe condemnation, and condemnation increases as the degree of guilt of the accused is more certain. Thus, the severity of the punishment and the strength of the criminal labeling of the offender must reflect the degree of guilt of the accused. The conviction depends directly on the degree of confidence in the guilt of the accused and the ability to declare the truth of the criminal act. In conclusion, the proposed model offers a normative bridge between the degree of epistemological conviction and the way of deciding in practice on the criminal conviction, the penal sanction, and the ensuing labeling of the offender. The advantage of the proposed model lies in the fact that it grades the criminal punishment according to the degree of certainty underlying the conviction. At the foundation of the model is the desire for a just solution in the concrete case. Making a distinction between criminal convictions entails formulating a scale of social sanctions that corresponds to the various levels of certainty underlying the criminal conviction and can bring about a proper correlation between the degree of confidence in the conviction and the degree of punishment. Recognition of the limitations of the factual decision-making procedure is not enough to challenge the judgment and criminal punishment, let alone the validity of the judicial system. Rather, and this is the essence of the proposed model, a punishment policy is needed that recognizes the limitations of certainty and the fear of making a mistake, which requires punishment that is appropriate and mindful of the degree of certainty and the strength of the evidence on which it rests.

Bibliography Andreoni, James: Reasonable Doubt and the Optimal Magnitude of Fines: Should the Penalty Fit the Crime, Rand Journal of Economics Vol. 22, 1991, pp. 385 – 395. Beattie, John M.: Crime and the Courts in England 1660 – 1800, Oxford 1986. Beccaria, Cesare: On Crimes and Punishment, first published in 1764 (translated by Paolucci, Henry in 1963). Bowers, William J./Sandys, Marla/Steiner, Benjamin D.: Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt-Trial Experience, and Premature Decision making, Cornell Law Review Vol. 83, 1998, pp. 1476 – 1556. Bray, Samuel: Not Proven: Introducing a Third Verdict, University of Chicago Law Review Vol. 72, 2005, pp. 1299 – 1329.

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Brilmayer, Lea: Second-Order Evidence and Bayesian Logic, Boston University Law Review Vol. 66, 1986, pp. 673 – 692. Cohen, Laurence J.: The Role of Evidential Weight in Criminal Proof, Boston University Law Review Vol. 66, 1986, pp. 635 – 649. Cohen, Neil B.: Confidence in Probability: Burdens of Persuasion in a World of Imperfect Knowledge, New York University Law Review Vol. 60, 1985, pp. 385 – 422. Danziger, Yoram/Thimana, Rona: Reexamination of the majority decision rule and a proposal for change, The Public Defender Vol. 234, 2016, p. 11 et seq. Eisenberg, Theodore/Wells, Martin T.: Deadly Confusion: Juror Instructions in Capital Cases, Cornell Law Review Vol. 79, 1993, pp. 1 – 17. Fisher, Talia: Constitutionalism and the Criminal Law: Rethinking Criminal Trial Bifurcation, The University of Toronto Law Journal Vol. 61 No. 4, 2011, pp. 811 – 843. Fisher, Talia: Probabilistic Punishment, Tel Aviv University Law Review Vol. 32, 2011, pp. 515 – 582. Foucault, Michel: Discipline and Punish: The Birth of the Prison, 2nd edition, New York 1995. Freedman, Jonathan L.: Penalties and Verdicts: Keeping the Record Straight, Law and Human Behavior Vol. 18, 1994, pp. 699 – 702. Freedman, Jonathan L./Krismer, Kirsten/MacDonald, Jennifer E./Cunningham, John A.: Severity of Penalty, Seriousness of the Charge, and Mock Jurors’ Verdicts, Law and Human Behavior Vol. 18, 1994, pp. 189 – 202. Garvey, Stephen P.: Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, Columbia Law Review Vol. 98 No. 6, 1998, pp. 1538 – 1576. Geimer, William/Amsterdam, Jonathan: Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, American Journal of Criminal Law Vol. 15, 1998, pp. 1 – 54. Hastie, Reid: Algebraic Models of Decision Processes, in: Hastie, Reid (ed.), Inside the Juror: The Psychology of Juror Decision Making, Cambridge 1983, pp. 84 – 115. Hastie, Reid: Contents of Jury Deliberation, in: Hastie, Reid/Penrod, Steven D./Pennington, Nancy (eds.), Inside the Jury, Cambridge 1983, pp. 83 – 98. Hay, Douglas: The Criminal Prosecution in England and Its Historians, The Modern Law Review Vol. 47 No. 1, 1984, pp. 1 – 29. Horovitz, Anat: The Emergence of Sentencing Hearings, Punishment and Society Vol. 9, 2007, pp. 271 – 299. Horovitz, Anat: The Judgement Procedure: Deliberative and Evidential Aspects, LLD dissertation, The Hebrew University of Jerusalem, Faculty of Law, 2003. Jungman, Elizabeth R.: Beyond All Doubt, Georgetown Law Journal Vol. 91, 2003, pp. 1065 – 1092. Kalvan Jr., Harry/Zeisel, Hans: The American Jury, Boston 1966. Kaplan, Martin F./Krupa, Sharon: Severe Penalties Under the Control of Others Can Reduce Guilt Verdicts, Law and Psychology Review Vol. 10, 1986, pp. 1 – 18.

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Kaye, David H.: Do We Need a Calculus of Weight to Understand Proof Beyond a Reasonable Doubt?, Boston University Law Review Vol. 66, 1986, pp. 657 – 672. Kerr, Norbert L.: Severity of Prescribed Penalty and Mock Jurors’ Verdicts, Journal of Personality and Social Psychology Vol. 36, 1978, pp. 1431 – 1442. Keynes, John M.: A Treatise On Probability, London 1921. Koosed, Margery Malkin: Averting Mistaken Executions by Adopting the Model Penal Code’s Exclusion of Death in the Presence of Lingering Doubt, Northern Illinois University Law Review Vol. 21, 2001, pp. 41 – 129. Lando, Henrik: The Size of the Sanction Should Depend on the Weight of the Evidence, Review of Law and Economics Vol. 1, 2005, pp. 277 – 292. Langbein, John H.: Torture and the Law of Proof: Europe and England in the Ancien Regime, Chicago 1977. Lanni, Adriaan: Jury Sentencing in Noncapital Cases: An Idea Whose Time Has Come (Again)?, The Yale Law Journal Vol. 108 No. 7, 1999, pp. 1775 – 1803. Laudan, Larry: Truth, Error, and Criminal Law, Cambridge 2006. Lillquist, Erik: Absolute Certainty and the Death Penalty, American Criminal Law Review Vol. 42, 2005, pp. 45 – 91. Lillquist, Erik: Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, U.C. Davis Law Review Vol. 36, 2002, pp. 85 – 196. MacCoun, Robert J.: Modeling the Impact of Extralegal Bias and Defined Standards of Proof on the Decisions of Mock Jurors and Juries, Ph.D. dissertation, Michigan State University, 1984. Martin, Janet: A Balanced Performance on Sentence: Some Comments on the Modern Role of Defense Counsel in the Sentencing Process, Criminal Law Review Vol. 15, 1991, pp. 261 – 281. Morano, Anthony A.: A Reexamination of the Development of the Reasonable Doubt Rule, Boston University Law Review Vol. 55, 1975, p. 507 et seq. Picinali, Federico: Do Theories of Punishment Necessarily Deliver a Binary System of Verdicts? An Exploratory Essay, Criminal Law and Philosophy Vol. 12, 2018, pp. 555 – 574. Russell, Bertrand: An Inquiry into Meaning and Truth, 1980. Russell, Bertrand: Theory of Knowledge, in: Eames, E. R./Blackwell, K. (eds.), The Collected Papers of Bertrand Russell, 1983. Schuman, Jacob: Probability and Punishment: How to Improve Sentencing by Taking Account of Probability, New Criminal Law Review Vol. 18 No. 2, 2015, pp. 214 – 272. Shapiro, Barbara J.: “Beyond Reasonable Doubt” and “Probable Cause”: Historical Perspectives on the Anglo-American Law of Evidence, Berkeley 1991. Shoham, Giora Shlomo/Shavit, Gabriel: Offenses and Punishments: An Introduction to Penology, 1990. Silving, Helen: “Rule of Law” in Criminal Justice, in: Mueller, G./Gault, R./Hein, W. (eds.), Essays in Criminal Science, 1961, pp. 77 – 154.

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Simon, Rita James: “Beyond a Reasonable Doubt,” An Experimental Attempt at Quantification, Journal of Applied Behavioral Vol. 6, 1970 pp. 203 – 209. Simon, Rita James: Judges’ Translations of Burdens of Proof into Statements of Probability, The Trail Lawyer’s Guide Vol. 103, 1969, pp. 103 – 114. Simon, Rita James/Mahan, Linda: Quantifying Burdens of Proof: A View from the Bench, the Jury, and the Classroom, Law and Society Review Vol. 5, 1971, pp. 319 – 330. Stein, Alex: Against ‘Free Proof’, Israel Law Review Vol. 31, 1997, pp. 573 – 589. Stoffelmayr, Elisabeth/Seidman, Shari: The Conflict between Precision and Flexibility in Explaining “Beyond a Reasonable Doubt”, Psychology, Public Policy, and Law Vol. 6, 2000, pp. 769 – 787. Sundby, Scott E.: The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, Cornell Law Review Vol. 83, 1998, pp. 1557 – 1598. The Constitution Project, Mandatory Justice: Eighteen Reforms to the Death Penalty, 2001, available at: www.constitutionproject.org/dpi/MandatoryJustice.pdf (accessed at 25. 3. 2023). Treadway, Jennifer R.: “Residual Doubt” in Capital Sentencing: No Doubt it is an Appropriate Mitigating Factor, Case Western Reserve Law Review Vol. 43, 1992, pp. 215 – 252. Vaki, Yaniv: Appropriateness between the degree of punishment and the degree of certainty in a conviction, Hamishpat Vol. 26, 2008, p. 79 et seq. Vaki, Yaniv: Beyond a Reasonable Doubt: The Flexible Principle of Proof in Israeli Law, 2013. Whitman, James Q.: The Origins of “Reasonable Doubt”, New Haven 2008.

Legal Measures Against Hate Speech and Hate Crime By Brian Valerius*

I. Hate Speech and Hate Crime Hate speech is a social phenomenon that has become increasingly widespread in recent years. It may be especially prevalent when using communication services on the internet, particularly social media. Hateful expressions have apparently reached new dimensions both in terms of numbers as well as harshness and ferocity. In a 2022 survey, in which about 1.000 German-speaking private internet users aged 14 and over were questioned, three quarters of the respondents stated that they had already experienced hate speech on the internet more or less frequently. The vast majority (82 %) described such anonymous comments as cowardly. A considerable number of respondents said that hateful expressions made them angry (39 %) and that it was a waste of time to deal with them (30 %). Among those affected, respondents mainly identified politicians (67 %) and people with other political views (58 %), but also people with a migration background (50 %) and members of the LGBTQ community (45 %). The most effective countermeasure was considered to be the prosecution of the authors of hate speech, which 79 % considered to be effective or very effective. The rapid deletion of hateful expressions (76 %) and the reporting of such comments to platform operators (68 %) were considered viable alternatives, while only 25 % considered direct responses to such comments to be effective.1 But what is hate speech anyway? Hate speech is initially only one aspect of the broader phenomenon of hate crime. What is covered by this term is not completely

* Prof. Dr. Brian Valerius holds the Chair of Artificial Intelligence in Criminal Law at the University of Passau. The following considerations are based on various publications by the author, most of which have been published in German, in particular on the following essays “Hasskriminalität – Vergleichende Analyse unter Einschluss der deutschen Rechtslage”, ZStW 132 (2020), pp. 666 – 689; “The criminalisation of hate speech”, in: Schmidt-Kessel (ed.), German National Reports on the 21st International Congress of Comparative Law, pp. 543 – 560 and “Digitaler Hass. Anlass für eine Reform des Beleidigungsstrafrechts?”, KriPoZ 2023, pp. 242 – 248. 1 Hate Speech Forsa-Studie 2022, available at https://www.medienanstalt-nrw.de/fileadmin/ user_upload/NeueWebsite_0120/Themen/Hass/LFM_Hatespeech_forsa_2022.pdf (accessed at 9. 2. 2023).

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undisputed – at least in Germany.2 Contrary to first impressions, it is less important for ‘hate crime’ that the perpetrator acts out of the motive of ‘hate’. Rather, the decisive factor for classifying a crime as hate crime is that it is directed against a victim whom the perpetrator has chosen only because of that person’s membership in a particular social group that he or she rejects.3 The motive for the crime is thus the grouprelated prejudices by the perpetrator against sections of the population,4 which, however, do not necessarily have to turn into hatred.5 Similarly, in the description of hate speech, it is considered decisive that membership of a specific population group is the reason for the perpetrator to verbally disparage or attack a group or one of its members.6 The term ‘hate crime’ is therefore somewhat misleading; alternatively, the term ‘prejudice motivated crimes’ has been suggested,7 which also is a common expression for such crimes in the USA. The fact that victims of hate crime and hate speech are chosen simply because they belong to a specific group of people adds a dimension to such crimes that goes far beyond the relationship between perpetrator and victim. Since the perpetrator commits the crime only because his victim is different from him,8 the perpetrator communicates to the victim that the latter is inferior. That person is not treated as an individual but as an example of the otherness rejected by the perpetrator.9 The consequence for the victim is often being severely traumatised because of being selected only because of membership in a specific social group. Thus the victim cannot prevent hate crime.10 However, such crimes also affect all other members of the social group that the perpetrator chooses as the target of his crime on the basis of prejudices and a desire to inflict harm; hate crime is therefore also referred to as a so-called message crime.11

2 Valerius, ZStW 132 (2020), pp. 667 – 668; on the discussion about the term also Krupna, Das Konzept der “Hate Crimes” in Deutschland, p. 9 et seq.; Keiser, ZRP 2010, pp. 46 – 47. 3 See the Scientific Services of the German Bundestag, Aktueller Begriff: Hasskriminalität, available at https://www.bundestag.de/resource/blob/192374/0d97067cfb4091dd3ccadc ba87a1470c/hasskriminalitaet-data.pdf (accessed at 9. 2. 2023). 4 For detail on the motives of the perpetrator, cf. Krupna (n. 2) p. 30 et seq. 5 Sotiriadis, KJ 2014, p. 264. 6 Summarising the discussion on the term “hate speech”, cf. the Scientific Services of the German Bundestag, Sachstand: Behandlung von “Hate Speech” vor 2015. YouTube, Facebook und Twitter, pp. 4 et seq., available at https://www.bundestag.de/resource/blob/662038/ 5f3bf16925be9219381d2a69eb56fc7d/WD-10-045-19-pdf-data.pdf (accessed at 9. 2. 2023). 7 Sotiriadis, KJ 2014, p. 264; Timm, JR 2014, pp. 141 – 142. 8 Keiser, ZRP 2010, p. 46; Timm, JR 2014, p. 142. 9 Tolmein, ZRP 2001, p. 316. 10 Schneider, in: Stiftung Deutsches Forum für Kriminalprävention (ed.), Endbericht der Arbeitsgruppe, Primäre Prävention von Gewalt gegen Gruppenangehörige – insbesondere: junge Menschen, 2003, p. 39, available at https://www.kriminalpraevention.de/files/DFK/dfkpublikationen/2003_endbericht_arbeitsgruppe.pdf (accessed at 9. 2. 2023). 11 Schneider, in: Stiftung Deutsches Forum für Kriminalprävention (n. 10), p. 36.

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However, the effects of hate crime and hate speech go even further. On the one hand, the perpetrator often assumes that the public secretly agrees with him, which on the other hand is feared by precisely those injured by the crime, as well as by all members of the victim group. This can cause tensions between individual sections of the population up to and including violent confrontations, and ultimately affect other social groups and also pluralistic society as a whole.12 Increasing confrontation with hate speech also has the effect that citizens withdraw from public discourse. This inhibits ongoing intellectual debate, which is a pillar of the liberal-democratic state order. Since hateful expressions are primarily directed against individual groups of the population, who are discriminated and demeaned by such statements, the values of diversity, variety and peaceful coexistence in society are disregarded.13 Combating hate crime in general, and hate speech in particular, is therefore a concern for the whole society and for all of us, and consequently also a challenge for politics as well as for science.

II. Hate Speech and Freedom of Expression 1. Protection of Hate Speech by Freedom of Expression Because of the inhibiting effect of hate speech on public discourse, a not insignificant preliminary question is whether hate speech is covered by freedom of expression, which, after all, is precisely intended to protect ongoing intellectual debate. In Germany, freedom of expression is enshrined in Article 5 (1)(1) of the Basic Law (GG), the German constitution. Accordingly, everyone has the ‘right freely to express and disseminate his opinions in speech, writing and pictures’. ‘Opinions’ in this sense are characterised, on the one hand, by an element of statement and position, and, on the other hand, expressions of opinion have intellectual, thought-provoking and persuasive effects on society.14 For that reason, freedom of expression protects all expressions of opinion. According to the Federal Constitutional Court, it is therefore irrelevant whether a statement appears valuable or worthless, right or wrong, or whether it is justified emotionally or rationally.15 Rather, freedom of expression also covers polemic speech and hurtful expressions.16 Consequently, Article 5 (1)(1) GG also protects hate speech.17

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Schneider, in: Stiftung Deutsches Forum für Kriminalprävention (n. 10), p. 39 et seq. Valerius, KriPoZ 2023, p. 242. 14 BVerfGE 61, 1, 7. 15 See only BVerfGE 61, 1, 7. 16 BVerfGE 93, 266, 289; BVerfG NJW 2020, 2622, 2623; NJW 2020, 2629, 2629. 17 Grabenwarter, in: Dürig/Herzog/Scholz (eds.), Grundgesetz – Kommentar, Art. 5 Abs. 1, Abs. 2 margin no. 68; Schemmer, in: Epping/Hillgruber (eds.), Beck’scher OnlineKommentar GG, Art. 5 margin no. 4. 13

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Certainly, it must not be denied that authors of hateful statements often have no interest at all in public discourse and sometimes even want to obstruct it. It therefore seems contradictory that the authors of hate speech may want to claim freedom of expression. To exclude such statements from the protection of the right of freedom of expression, however, seems questionable not only from a constitutional perspective, but also from a legal policy point of view. On the one hand, this could lead to a so-called chilling effect, i. e. citizens fearing that they cannot invoke freedom of expression and therefore no longer participate in political discourse, even though they themselves do not resort to hateful statements at all.18 On the other hand, some citizens could be affirmed in their view that they are not allowed to express themselves anymore;19 due to that perception quite a few could see themselves confirmed in the fact that their opinions, especially on current political and social issues, are considered undesirable.20 The opinion shaping power of public debate, which – as the COVID 19 pandemic showed in various ways – is crucial, especially in the midst of challenges to society as a whole and in times of crisis, could consequently suffer if the expressions of opinions – even hateful opinions – were no longer generally covered by Article 5 (1)(1) GG.21 2. Protection of Freedom of Expression from Hate Speech The fact that hate speech is also protected by freedom of expression does not, of course, have the consequence of giving it a legal free pass and not being allowed to fight it with legal measures. Rather, under Article 5 (2) GG, freedom of expression ‘shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honor’. Of this triad of restrictions, the ‘general laws’ mentioned first are the most important. A (e. g. criminal) law provision can only be described as ‘general’ in this way if it is not directed against freedom of expression per se or against the expression of particular opinions, but if it seeks to protect a legal interest (such as honour or the public peace) in general.22 Freedom of expression is thus not guaranteed without limits in Germany. However, that does not mean that freedom of expression is regarded as unimportant.23 18

Valerius, KriPoZ 2023, p. 243. According to a survey from 2021 by the Allensbach Institute for Public Opinion Research (https://www.ifd-allensbach.de/fileadmin/kurzberichte_dokumentationen/FAZ_Juni 2021_Meinungsfreiheit.pdf; accessed at 9. 2. 2023) 44 % of those questioned believe it is better to be cautious when expressing political opinions in Germany. This caution is not due to confrontation with hate speech, but to the threat of social sanctions for disregarding ‘political correctness’. 20 Valerius, KriPoZ 2023, p. 243. 21 Valerius, KriPoZ 2023, p. 243. 22 See BVerfGE 7, 198, 209 – 210; 93, 266, 291. 23 Valerius, in: Schmidt-Kessel (ed.), German National Reports on the 21st International Congress of Comparative Law, p. 544. 19

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Rather, the Federal Constitutional Court has explicitly stated that ‘the fundamental right to freedom of expression … as the most direct expression of the human personality in society is one of the noblest human rights of all and for a liberal-democratic state order … absolutely constitutive, because it only enables the constant intellectual debate, the battle of opinions, which is its life element’.24 In order to limit freedom of expression, conflicting interests worthy of protection are necessary, not least conflicting fundamental rights or other values of constitutional rank. There is a kind of reciprocal interaction (‘Wechselwirkung’ in German), i. e. general laws may set limits to freedom of expression, but are restricted themselves in their effect of limiting the fundamental right.25 In addition, the spillover effect of freedom of expression and its value-setting significance in a liberal-democratic state must be taken into account when interpreting laws that restrict expression.26 Therefore, opposing interests must be weighed against each other both in the creation of law and in law’s application, and this conflict must be resolved by means of practical concordance, i. e. by balancing the conflicting rights as smoothly as possible.27 Thus, also in the case of hate speech, provisions of GG must be taken into account in order to determine the scope of freedom of expression and to weigh the interests opposing it. For example, the dangers of hate speech could be considered when weighing the freedom of expression of a person expressing hatred against the conflicting interests of others. In this respect, for example, the prohibition of discrimination in Article 3 (3) GG, under which no person shall be disfavoured because of sex, parentage, race, language, homeland and origin, faith, religious or political opinions or disability, could be regarded as a conflicting interest of constitutional rank.28 The same applies to participation in public discourse as an element protected by freedom of expression under Article 5 (1)(1) GG.29 These interests could in particular outweigh the perpetrator’s freedom of expression if a statement exhausts itself in mere hatred without contributing anything of substance to public discourse.30 The fact that the concern of shaping public opinion can certainly have an impact on the scope of freedom of expression can also be shown by the Federal Constitutional Court’s treatment of so-called factual statements.31 Statements of fact, unlike value judgements, are not characterised by an element of personal of opinion (which can be held to be right or wrong), but by verifiability (as true or untrue). The Federal Constitutional Court only subjects such statements of fact to the protection of freedom of expression if and to the extent that they are necessary for the formation of opinions. 24

BVerfGE 7, 198, 208. BVerfGE 7, 198, 208 – 209; 59, 231, 265. 26 See BVerfGE 7, 198, 208. 27 BVerfGE 42, 143, 152. 28 Valerius, KriPoZ 2023, p. 243. 29 Valerius, KriPoZ 2023, p. 243. 30 Valerius, KriPoZ 2023, p. 243. 31 Valerius, KriPoZ 2023, p. 243.

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After all, opinions are usually based on factual assumptions or refer to factual circumstances.32 This constitutional protection thus ends when statements of fact are unable to contribute to the formation of opinion; this is assumed to be the case for deliberately false or proven false statements of fact,33 such as the denial of the Holocaust under the Nazi regime.34 This also applies to so-called fake news, which has been on the rise in recent years, and which in particular is being spread on social networks in order to influence both public opinion and the outcomes of elections and votes, or to undermine the public’s trust in the state or its institutions. The Federal Constitutional Court’s differentiating argumentation reveals that it is not the formation of opinion as such that is protected. After all, this process could also be based on untrue statements of fact. Rather, the scope of freedom of expression is determined in respect of content, in that untrue facts are denied a (meaningful) contribution to the formation of opinion and their expression thus appears to be dispensable, if not even harmful.35 This approach could also be used to deal with hate speech, since hate as such does not contribute to the formation of opinion, but rather inhibits or at least disturbs it due to the reactions it provokes. To put it more pointedly, in this way (public formation of opinion and thus a core concern of) freedom of expression itself could be protected from (hate speech as an act of) freedom of expression.36

III. Current Legal Measures Against Hate Speech and Hate Crime 1. Criminal Offences Hate speech is covered by a number of different criminal offences. Probably the most relevant criminal offence in Germany is incitement of masses under § 130 German Criminal Code (StGB). Under para. 1, it is an offence to incite hatred against a national, racial, religious group or a group defined by their ethnic origin, against sections of the population or individuals on account of their belonging to one of the aforementioned groups or sections of the population, or to call for violent or arbitrary measures against them (No. 1) or to violate the human dignity of others by insulting, maliciously maligning or defaming one of the aforementioned groups, sections of the population or individuals on account of their belonging to one of the aforementioned groups or sections of the population (No. 2). In each case this had to be done in a manner suited to causing a breach of the public peace. Thus, the offence of incitement 32

BVerfGE 61, 1, 8; 90, 241, 247. BVerfGE 61, 1, 8. 34 BVerfGE 90, 241, 247 et seq. 35 Valerius, KriPoZ 2023, pp. 243 – 244. 36 Valerius, KriPoZ 2023, p. 244.

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of masses is currently the only provision in the StGB that explicitly includes the element ‘hatred’. In the context of § 130 StGB, however, the characteristic does not refer to the motives of the perpetrator, but rather the goal to be achieved, which is incite others.37 With the Criminal Code Amending Act of 14 September 2021,38 which, according to its title, was intended to ‘improving the fight against inciting content’, the provision of § 192a StGB (hate-mongering insult) was recently introduced. It is now an offence to allow content suited to violating the human dignity of others by insulting, maliciously maligning or defaming a group defined by its national, racial, religious or ethnic origin, ideology, disability or sexual orientation or individuals on account of their belonging to one of these groups to come to the attention of another person who belongs to one of the aforementioned groups without having been requested to do so by that person. The provision thus refers to differentiating – or, from the perpetrator’s point of view, discriminating – characteristics that also motivate hate speech. However, as the lengthy and not easily understandable phrasing of the provision shows, § 192a StGB only covers a very specific type of case, namely the communication of hateful content to members of the disparaged group.39 In this way, the legislature wanted to close loopholes in the criminal code, which saw in the offences of insult and in the offence of incitement of masses under § 130 StGB.40 In spite of the obvious intention of the norm, to combat the forms of hate speech – in the explanatory memorandum to the law, reference is made to antisemitically motivated and islamophobic letters and content41 – the terms ‘hate crime’ or ‘hate speech’ are not mentioned anywhere in the further explanatory memorandum to the law, nor is the motive of ‘hatred’, which is often associated with the perpetrator. However, § 130 and § 192a are only the two provisions in StGB that specifically aim to cover manifestations of hate crime, not least hate speech. In addition, there are a number of criminal provisions that were not specifically enacted to combat these phenomena, but nevertheless also cover such situations. These include, for example, the offences of insult (§ 185 et seq. StGB), coercion (§ 240 StGB) and threatening the commission of a serious criminal offence (§ 241 StGB), the dissemination of propaganda material or the use of symbols of unconstitutional and terrorist organisations (§§ 86, 86a StGB), public incitement to commit offences (§ 111 StGB) as well as criminal offences relating to religion and ideology (§ 166 et seq. StGB).42 The fact that offences of insult under § 185 et seq. StGB and threatening commission of a serious criminal offence under § 241 StGB are regarded as contributing to 37

Tolmein, ZRP 2001, p. 317; Valerius, ZStW 132 (2020), p. 676. BGBl. I, 4250. 39 Valerius, KriPoZ 2023, p. 246. 40 BT-Drs. 19/31115, 14 – 15. 41 BT-Drs. 19/31115, 14. 42 Valerius, ZStW 132 (2020), p. 674; see also Sotiriadis, KJ 2014, p. 264; in detail Krupna (n. 2) p. 80 et seq. 38

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the fight against hate crime is illustrated by recent amendments made by the Act to Combat Right-Wing Extremism and Hate Crime of 30 March 2021.43 Since then, § 241 StGB not only incriminates threatening a person for the commission of a serious criminal offence against that person or a person close to him. Instead all threats for the commission of unlawful acts are now covered, as long as the offences are directed against sexual self-determination, physical integrity, personal liberty, the addressee or a person close to him or her, or against an object of significant value. In the criminal offence of insult under § 185 StGB, a qualification was introduced for insults ‘committed publicly’, e. g. in freely accessible communication services of the internet, which since then has been punishable by imprisonment of up to two years (or a fine) instead of a prison sentence of up to one year (or a fine) as before. In this way, of course, all disparaging statements on the (freely accessible) internet are covered.44 So the amendments only indirectly sanction hate speech more extensively or more severely, without, however, taking into account the characteristics of hate crime at all, since the amendments are not limited to (e. g. discriminatory) content or the motivation (e. g. hatred) of the perpetrator. 2. Considering Hate Crime in Fixing Penalties Particularly in the case of offences that do not specifically serve to combat hate speech, but only cover its manifestations alongside many other non-hateful statements, it is questionable whether and, if so, to what extent the characteristics of hate speech or hate crime in general can be taken into account on the legal consequences side, i. e. for fixing penalties. In this respect, for German law in general, reference must first be made to § 46 StGB, which standardises the general principles of sentencing. According § 46 StGB (2)(2) the numerous circumstances that the courts must take into consideration when fixing penalties include, among others, ‘the offender’s motives and objectives, in particular including racist, xenophobic, antisemitic or other motives evidencing contempt for humanity’. The explicit enumeration of ‘racist, xenophobic or other motives evidencing contempt for humanity’ was only introduced in 2015 by the Act on the Implementation of Recommendations of the NSU Investigation Committee of the German Bundestag of 12 June 2015.45 This was intended to sensitise law enforcement agencies and the courts to these hate-driven motives.46 The aforementioned Act to Combat Right-Wing Extremism and Hate Crime of 30 March 202147 also added the attribute ‘antisemitic’. However, there was already agreement beforehand that such motives could be taken into account in sen-

43

BGBl. I, 441. See the critical remarks by Valerius, ZStW 132 (2020), pp. 688 – 689. 45 BGBl. I, 925. 46 Cf. BT-Drs. 17/8131, 4. 47 BGBl. I, 441. 44

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tencing to the disadvantage of the offender,48 and the federal government in the explanatory memorandum to the statute therefore characterised the amendment as having ‘primarily symbolic character’.49 3. Special Issues in the Prosecution of Hate Crimes Of course, the fight against hate crime in general, and hate speech in particular, cannot be fought only with substantive law. Of no less importance is how the existing law is enforced and that the characteristics of hate speech and hate crime are also sufficiently taken into account in criminal prosecutions. In this respect, the Guidelines for Criminal Proceedings and Administrative Fines (Richtlinien für das Strafverfahren und das Bußgeldverfahren; RiStBV) are important in Germany. These administrative regulations are directed to public prosecutors in order to ensure that criminal proceedings are handled as uniformly as possible. However, these regulations are not binding for judges. These guidelines also mention ‘racist, xenophobic or other motives evidencing contempt for humanity’ in various sections. Accordingly, on the one hand, if there are corresponding suspicions, investigations are to be extended to those circumstances of the offence, as they can be of importance for determining the legal consequences (no. 15 (5) RiStBV). On the other hand, those circumstances can justify a public interest in criminal prosecution, which precludes referring the victim to the burdensome private prosecution option and a subsequent dropping of the proceedings by the public prosecutor’s office (no. 86 (2)(1) RiStBV). Furthermore, a special public interest in prosecution within the meaning of § 230 (1)(1) StGB can result from the motives mentioned, so that (negligent) bodily harm can also be prosecuted without a request by the victim (no. 234 (1)(1) RiStBV). However, the element ‘antisemitic’ has not yet been added to these regulations. 4. Measures Beyond the Criminal Law All of these genuine criminal law considerations should not exclude the fact that non-criminal law provisions, be they in civil or public law, are also used to combat hate speech, not least in social networks. In this respect, the Act to Improve Law Enforcement in Social Networks (Netzwerkdurchsetzungsgesetz; NetzDG) is the most important statute in Germany.50 It came into force on 1 October 2017, not least to effectively combat and prosecute hate crime as a ‘major threat to peaceful coexistence in a free, open and democratic society’.51 Since then, providers of social net48 Keiser, ZRP 2010, p. 48; Valerius, ZStW 132 (2020), p. 676; see also BT-Drs. 17/3124, 8 as well as BT-Drs. 18/3007, 14. 49 BT-Drs. 17/9345, 7. 50 BGBl. I, 3352. 51 BT-Drs. 18/12356, 1.

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works have been required to remove or block access to unlawful content without delay, usually within seven days of becoming aware of it, in accordance with § 3 (2)(3) NetzDG. Should the unlawfulness be obvious, the time limit under § 3 (2)(2) NetzDG is 24 hours. This regulation has been subjected to considerable criticism from the beginning. On the one hand, it was criticised that the aforementioned obligations for social networks only apply to providers with at least two million registered users in Germany (§ 1 (2) in conjunction with para. 1 NetzDG).52 On the other hand, it was feared that, due to the rigid deletion deadlines and the threat of fines, operators might delete content rather than leaving it untouched.53 According to the explanatory memorandum of the statute, this would not insignificantly restrict freedom of expression, even if such a chilling effect was to be avoided.54 Furthermore, the aforementioned Act to Combat Right-Wing Extremism and Hate Crime of 30 March 202155 introduced a reporting obligation on 1 February 2022 into § 3a NetzDG. Under para. 1, providers of social networks (although still only those with at least two million registered users in Germany) – subject to a fine under § 4 (1)(7) NetzDG – must provide an effective procedure for reporting on removed or blocked content to the Federal Criminal Police Office. Content reported to the provider in a complaint and then removed or blocked by the provider must be forwarded if there are concrete indications about the commission of the listed criminal offences (including §§ 86, 86a, 130 and 241 StGB) (§ 3a (2) NetzDG). Review of the content in question, as well as its possible subsequent notification, must take place immediately after it is removed or blocked (§ 3a (3) NetzDG). This reporting system is intended to enable the prosecution of criminal offences whose punishment under criminal law is of particular importance for the protection of a democratic and pluralistic society.56

IV. Legal Measures Against Hate Speech de lege ferenda 1. New or Expanded Offences? Due to the increase in hate crime and especially hate speech, not least in the social media, it remains to be considered whether the current law is still adequate to combat these phenomena. There is intensive discussion ongoing in Germany, and similar arguments are taking place in other countries. In Germany, it is often emphasised that 52

Guggenberger, ZRP 2017, p. 98. Elsaß/Labusga/Tichy, CR 2017, p. 235; see also Beurskens, NJW 2018, p. 3420; for scepticism about this objection, cf. Peifer, CR 2017, p. 812. 54 BT-Drs. 18/12356, 23. 55 BGBl. I, 441. 56 BT-Drs. 19/17741, 17. 53

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hate speech, especially digital hatred, usually also contains insulting expressions. Consequently, it should be obvious to also refer such cases of insult for prosecution under § 185 et seq. StGB in order to fight this phenomenon.57 In this context, it is sometimes pointed out that insult can endanger and violate legal interests other than honour. Indeed, the German legislature has also stated that by combating the roughening of communication, especially on the Internet, it also wants to protect both political discourse in the democratic and pluralistic social order58 as well as the rights of those affected to participate in social and political life on an equal footing.59 According to prevailing opinion, the insult offences in § 185 et seq. StGB protect only the individual right of honour.60 One of the arguments in favour of this is that, under § 194 (1)(1) StGB, a request by the victim is required to prosecute all insult offences – including those committed publicly within the meaning of § 185 variant 2 StGB, such as on the Internet. For this reason alone, it seems questionable to ascribe to the insulting offences other protected interests besides honor to adequately address the challenges of hate speech. The scope of the German offence of insult is often unclear anyway, which is due not least to the rather unspecific wording of § 185 StGB. This provision simply criminalizes ‘insult’ without specifying any criteria that define the offence. These uncertainties, which are not insignificant, in the application of the insult offences should not be further increased by reading additional legal interests into § 185 et seq. StGB.61 Moreover, it must not be forgotten that honour represents (no less, but also no more) than one aspect of personal dignity and is therefore not necessarily violated in any attack on personal rights.62 It would therefore also be unwise to equate participation in political discourse or the right to participate in social and political life on an equal footing with a violation of honour or to protect these interests via the criminal offence of § 185 et seq. StGB. If other legal interests besides honour are violated by a derogatory act, this would have to be covered by other relevant criminal offences, or, 57

See some contributions in: KriPoZ 2023, issue 3. See the explanatory memorandum to the Law on Combating Right-Wing Extremism and Hate Crime of 30. 3. 2021 (BGBl. I, 441), BT-Drs. 19/17741, 1. 59 See the explanatory memorandum to the Criminal Code Amending Act … improving the combat against inciting content … of 14. 9. 2021 (BGBl. I, 4250), BT-Drs. 19/31115, 14. 60 See only BGHSt 11, p. 67, 70 – 71; p. 36, 145, 148; Eisele/Schittenhelm, in: Schönke/ Schröder, StGB, Pre. §§ 185 et seq. margin no. 1; Hilgendorf, in: Cirener/Radtke/Rissing-van Saan/Rönnau/Schluckebier (eds.), Leipziger Kommentar Strafgesetzbuch, Pre. § 185 margin no. 1; Valerius, in: von Heintschel-Heinegg (ed.), Beck’scher Online-Kommentar Strafgesetzbuch, § 185 margin no. 1. 61 Valerius, KriPoZ 2023, p. 245. 62 BGHSt 36, p. 145, 148 – 149; Eisele/Schittenhelm, in: Schönke/Schröder, StGB, § 185 margin no. 2, 3a; Valerius, in: von Heintschel-Heinegg (ed.), Beck’scher Online-Kommentar Strafgesetzbuch, § 185 margin no. 27; see also Hilgendorf, in: Cirener/Radtke/Rissing-van Saan/Rönnau/Schluckebier (eds.), Leipziger Kommentar Strafgesetzbuch, § 185 margin no. 30 et seq. 58

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in the absence of such provisions, criminal law protection would have to be extended in this respect.63 Whoever, for the sake of the needs of momentary challenges, as justified as they may be in combating hate speech, makes the scope of application of § 185 et seq. StGB more vague by means of such constructs, does not strengthen the protection of honour, but only increases its imprecision.64 However, at least in Germany, insult offences are not suitable for protecting political discourse or preventing discrimination, also with regard to their handling by law enforcement authorities.65 In practice, in this country these laws mostly serve only to protect public officials and politicians, not least members of the police, law enforcement agencies and the courts. Moreover, such derogatory expression is usually related to a concrete cause and is not about participation in the public exchange of opinions or about expressing disrespect because of the victims’ national or ethnic origin, gender, sexual orientation, etc.66 As soon as insult to a private person is suspected, proceedings are usually dropped and the matter is left to private prosecution. In addition, manifestations of hate speech are too diverse to be considered only from the perspective of insult offences. Moreover, the dangers of hate speech cannot be denied even if hateful expression does not have a derogatory character in individual cases. Furthermore, there are also similar acts, especially of hate crime, which have a similar potential danger, but – like coercion, threatening the commission of serious criminal offence or public incitement to commit crimes – are often lacking a derogatory element.67 Thus, although insult offences may be related in a large number of cases of hate crime, especially hate speech, they are not designed from the outset to cover that social phenomenon to its full extent.68 In any case, one should not give in to the illusion that a new conception of the insult offences alone – even if only from the perspective of criminal law – would do everything necessary to effectively combat hate speech or even hate crime in general. Therefore, other ways of dealing with the phenomena of hate speech and hate crime in a sensitive and moderate manner would be more appropriate. Because of the effects on society as a whole as described above, it would be worth considering recourse to criminal provisions that protect the public peace or other legal interests of the general public. In Germany, for example, it would be imaginable to supplement or amend the criminal offence of incitement of masses (§ 130 StGB). Alternatively, a general discrimination provision could be introduced that would criminalize discriminatory behaviour under certain conditions that would have to be clearly defined.69 63

Valerius, KriPoZ 2023, p. 245. Valerius, KriPoZ 2023, p. 245. 65 Valerius, KriPoZ 2023, p. 246. 66 Valerius, KriPoZ 2023, p. 246. 67 Valerius, KriPoZ 2023, p. 246. 68 Valerius, KriPoZ 2023, p. 246. 69 See Valerius, KriPoZ 2023, p. 247. 64

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However, there are also substantial objections to such a solution. On the one hand, in view of the many different manifestations of hate speech, it is also likely to be difficult to formulate the elements of the offence in such a way that actions worthy of punishment can be clearly differentiated from behaviors that are not offences and may even be socially acceptable.70 A provision that is too expansive could, again, result in a chilling effect, with citizens refraining from participating in political discourse simply because they are concerned about making themselves liable to prosecution. Introducing a criminal offence that is too vague could thus inhibit participation in public discourse instead of protecting it.71 On the other hand, a decision would have to be made as to which discriminatory criteria should be referred to. In this respect, it would be conceivable to have an enumerated list of certain criteria (such as, for example, nationality, race, religion and ethnic origin in § 130 (1)(1) StGB), which would not be consistent over time and whose selection would be difficult to justify, or to have an open and not conclusive formulation, which, however, would entail the risk of being able to read discrimination into every statement or behavior, which would in turn counteract the intention of protecting public discourse.72 2. Solution on the Legal Consequences Side? If, due to the difficulties described above, a solution at the level of offences is not considered viable in order to deal with hate speech in a reasonable manner, the special characteristics of such acts could be taken into account in sentencing. In Germany, for example, it would be worth discussing this, including circumstances in § 46 (2)(2) StGB that take into account the special aspects of hate speech in particular, or hate crime in general, which increase the severity of the crime.73 In favor of such a solution, it can be argued that there are few requirements for the clarity of a norm at the level of legal consequences. Moreover, such factors would ‘only’ constitute circumstances to be taken into consideration in fixing penalties, the weight of which can be determined appropriately in each individual case.74 In any case, a current draft of a law to revise the law on sanctions, which is currently in the parliamentary legislative process, seeks to take this path at the sentencing level. Among other things, it provides for an expansion of the already mentioned list of ‘racist, xenophobic, antisemitic or other motives and objectives evidencing contempt for humanity’ in § 46 (2)(2) StGB to include ‘gender-specific motives and motives directed against sexual orientation’. In this way, the legislature wants to take into account the fact that in Germany, crimes which, from the perpetrator’s 70

Valerius, KriPoZ 2023, p. 247. Valerius, KriPoZ 2023, p. 247. 72 Valerius, KriPoZ 2023, p. 247. 73 Valerius, KriPoZ 2023, p. 247. 74 Valerius, KriPoZ 2023, p. 247. 71

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point of view, are motivated by the victim’s gender or sexual orientation, are playing an increasing role.75 Women are specifically affected by hate speech;76 but hate crimes are also disproportionately directed against lesbian, gay, bisexual, trans and intersex people, as well as other queer people.77 In order to send a clear signal against hate crime also with regard to the aforementioned groups of people and in order to affirm that hate motives related to the gender or sexual orientation of the victim can be taken into account within the framework of § 46 StGB in a way that increases penalties, these motives could be expressly included in the list in § 46 (2)(2) StGB.78 These considerations certainly point in the right direction. A solution via the level of sentencing would in any case emphasise the responsibility of the courts to adequately consider such particularities in each individual case. After all, fair sanctioning of an offence is not only made possible by the available elements of crime and the range of penalties, but rather and especially by their application to the individual case. Instead, for example, of increasing the maximum prison sentence from two to three years for the German offences of insult and thereby subjecting relevant offences of a minor nature to this threat of punishment, it seems more reasonable to make use of the existing penalty range of two years, if that seems appropriate.79 A solution via sentencing would also have the further advantage of being able to take into account such sentence increasing characteristics for all hate offences (and not only for derogatory acts). In addition, law enforcement agencies could be sensitised during the preliminary proceedings to the fact that these characteristics are important for the main proceedings and that corresponding evidence must be secured.80

3. Procedural Solution? If the path via the legal consequences side is also not considered appropriate, and therefore no substantive solution is available, a procedural way remains to be discussed. Of course, this would not change the legal situation, and could at best reduce or eliminate the enforcement deficits in the current law.81 But such enforcement deficits do exist in Germany. Quite a few crimes that can be classified as hate speech are already offences and come to the attention of the prosecuting authorities. Nevertheless, they are not prosecuted because the victim is referred to private prosecution.82 75

BR-Drs. 687/22, 11. BR-Drs. 687/22, 14. 77 BR-Drs. 687/22, 15. 78 BR-Drs. 687/22, 16. 79 Valerius, KriPoZ 2023, pp. 247 – 248. 80 Valerius, KriPoZ 2023, p. 248. 81 Valerius, KriPoZ 2023, p. 248. 82 Valerius, KriPoZ 2023, p. 248.

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However, this appears to be inconvenient for the reasons described. In view of the effects of hate speech, which should not be underestimated, one might suggest that prosecution authorities change their prosecution practices and, at least in the case of hate speech that is also derogatory, go beyond prosecuting insults against public officials and politicians. An amendment to the RiStBV could promote this, which could, for example, consider the public interest in prosecution in cases of hate speech as mostly given if the perpetrator harboured racist, xenophobic, antisemitic, genderspecific, anti-sexual orientation or other motives or objectives evidencing contempt for humanity.83 Another possible measure, due to the significance and impact of hate speech on society as a whole, would be to transform the offence of insult into a so-called relative request offence in such cases. Up to now, offences of insult in Germany have generally been so-called absolute request offences, so that prosecution is not possible without a request by the victim. An exception has so far been made under § 194 (1)(3) StGB, inter alia, for offences under § 192a StGB, if the prosecuting authority deems there to be a special public interest in prosecution which calls for ex officio intervention. This exception could be extended – in accordance with the proposed amendment to the RiStBV – to insults in which the offender has racist, xenophobic, antisemitic, gender-specific, anti-sexual orientation or other motives or objectives evidencing contempt for humanity.84 Such a procedural solution would mean that criminal prosecution authorities would have to prosecute significantly more cases of (derogatory) hate speech, which would require a not inconsiderable amount of additional time and personnel. However, this additional effort would go hand in hand with all the proposals to combat hate speech and hate crime (in terms of offences, legal consequences and proceedings) and would be necessary in particular to do justice to the significance of this increasing social phenomenon.85 Bibliography Beurskens, Michael: “Hate-Speech” zwischen Löschungsrecht und Veröffentlichungspflicht, Neue Juristische Wochenschrift (NJW), 2018, pp. 3418 – 3420. Cirener, Gabriele/Radtke, Henning/Rissing-van Saan, Ruth/Rönnau, Thomas/Schluckebier, Wilhelm (eds.): Leipziger Kommentar Strafgesetzbuch, 13th edition, Berlin 2023. Dürig, Günter/Herzog, Roman/Scholz, Rupert (eds.): Grundgesetz – Kommentar, 99th edition, Munich 2022.

83

Valerius, KriPoZ 2023, p. 248. Valerius, KriPoZ 2023, p. 248. 85 Valerius, KriPoZ 2023, p. 248. 84

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Elsaß, Lennart/Labusga, Jan-Hendrik/Tichy, Rolf: Löschungen und Sperrungen von Beiträgen und Nutzerprofilen durch die Betreiber sozialer Netzwerke, Computer und Recht (CR), 2017, pp. 234 – 241. Epping, Volker/Hillgruber, Christian (eds.): Beck’scher Online-Kommentar Grundgesetz, 53rd edition, Munich 2022. Guggenberger, Nikolaus: Das Netzwerkdurchsuchungsgesetz – schön gedacht, schlecht gemacht, Zeitschrift für Rechtspolitik (ZRP), 2017, pp. 98 – 101. Heintschel-Heinegg, Bernd von (ed.): Beck’scher Online-Kommentar Strafgesetzbuch, 55th edition, Munich 2022. Keiser, Claudia: Unerlässliches zur Verteidigung der Rechtsordnung gegen so genannte Hasskriminalität, Zeitschrift für Rechtspolitik (ZRP), 2010, pp. 46 – 49. Krupna, Karsten: Das Konzept der “Hate Crimes” in Deutschland, Bern 2010. Peifer, Karl Nikolaus: Fake News und Providerhaftung, Computer und Recht (CR), 2017, pp. 809 – 813. Schneider, Hans-Joachim: in: Stiftung Deutsches Forum für Kriminalprävention (ed.), Endbericht der Arbeitsgruppe, Primäre Prävention von Gewalt gegen Gruppenangehörige – insbesondere: junge Menschen, 2003, pp. 34 – 73, available at https://www.kriminalpraevention.de/ files/DFK/dfk-publikationen/2003_endbericht_arbeitsgruppe.pdf (accessed at 9. 2. 2023). Schönke, Adolf/Schröder, Horst: Strafgesetzbuch Kommentar, 30th edition, Munich 2019. Sotiriadis, Georgios: Brauchen wir sanktionsrechtliche Normen, damit Hate Crimes von der Strafjustiz angemessen beurteilt werden?, Kritische Justiz (KJ), 2014, pp. 261 – 275. Timm, Frauke: Tatmotive und Gesinnung als Strafschärfungsgrund am Beispiel der “Hassdelikte”, Juristische Rundschau (JR), 2014, pp. 141 – 148. Tolmein, Oliver: Strafrechtliche Reaktionsmöglichkeiten auf rassistisch motivierte Gewaltdelikte, Zeitschrift für Rechtspolitik (ZRP), 2001, pp. 315 – 319. Valerius, Brian: Digitaler Hass. Anlass für eine Reform des Beleidigungsstrafrechts?, Kriminalpolitische Zeitschrift (KriPoZ) 2023, pp. 242 – 248. Valerius, Brian: Hasskriminalität – Vergleichende Analyse unter Einschluss der deutschen Rechtslage, Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW) Vol. 132, 2020, pp. 666 – 689. Valerius, Brian: The Criminalisation of Hate Speech, in: Schmidt-Kessel, Martin (ed.), German National Reports on the 21st International Congress of Comparative Law, Tübingen 2022, pp. 543 – 560.

On the Characteristics of Joint Crime in Chinese Criminal Law By Shizhou Wang* Joint crime, in common words, is the crime committed by two or more persons together, and the persons involved in the joint crime are called as joint perpetrators or joint criminals or even co-offenders. Due to the differences in cultural background and legal provisions between China and foreign countries, this paper will name the crimes jointly committed by two or more persons as Joint Crime in Chinese criminal laws, instead of generally adopting the term of Complicity commonly used in western criminal laws, so as to avoid misunderstanding and to avoid obscuring the socio-historical and cultural backgrounds that should be noted in comparative studies. In terms of national governance or social-politically speaking, the kind of crime that is committed by multi-person together has an outcome often more harmful and destructive than the crime committed by an individual person, and sometimes even has the effect of subverting a government, so that the activities of multi-person committing crimes would be treated specifically in domestic and foreign criminal laws since ancient times. China enacted and studied joint crimes very early in the history. As early as in 221 – 206 BC, there were regulations regarding the punishment of joint )” and “the plotting by A to send B for crime such as “a theft by five persons ( stealing and killing ( )” in the laws of Qin Dynasty. And the Great Jurist Zhang Fei of Jin Dynasty (265 – 317 AD) made the excellent summaries that “to propose the first words means to create an idea, to discuss between two persons means to plot, and to give advice and drive the crowd means to lead”.1 Today, there are many of its own characteristics on joint crime in the current Chinese Criminal Law. This paper would like to illustrate some of the characteristics on joint crime from the perspectives of comparative legal studies, so as to promote the mutual under* Prof. Dr. Shizhou Wang is a guest researcher of the Alexander von Humboldt Foundation at the Max Planck Institute for Foreign and International Penal Law in Freiburg and at Augsburg University (1994 – 1996); member of the British Academy K.C. Wong in Advanced Legal Studies at the University of London; laureate of the Humboldt Reward (2009); Ambassador Scientist of the Humboldt Foundation; Co-Director of Confucius Institute at Hebrew University of Jerusalem, Israel (2017 – 2021). The responsibility for the translation of the text from Chinese into English lies solely with the author. 1 Cf. Editorial Committee, Peking University Encyclopedia of Law: History of Chinese Legal Thoughts – History of Chinese Legal System – History of Foreign Legal Thoughts – History of Foreign Legal System (2000), p. 270.

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standings among China, Israel, Germany and other parts of the world and, in this way, to congratulate Prof. Yoram Danziger on his 70th birthday anniversary.

I. Conceptual Characteristics of Joint Crime In the Chinese Criminal Law enacted after the 1997 revision (hereafter 1997 Criminal Law), Article 25 (1) stipulates that “a joint crime is an intentional crime committed by two or more persons jointly”. This provision defines the conceptual characteristics of joint crime in the Chinese Criminal Law (hereafter CCL) in terms of numbers of perpetrator and subjective mental state. 1. Characteristics in Term of Numbers In ancient China, the form of joint crime people can see today was the so-called “group crime”, where there was no rule on number. In the earliest period when the state arose, fighting and revenge between tribes could only be accomplished by group-on-group action.2 In the ancient Chinese texts, the criminal law of that period is described above all to deal with the great disruption of the social order, which could only be caused by the crimes committed by many people acting together. For example, there are records in ancient Chinese texts that “Xia (Dynasty) had havocs so (the King) Yu made his penalty; Shang (Dynasty) had havocs so (the King) Tang made his penalty; Zhou (Dynasty) had havocs so the Nine Penalties were made ( )”.3 The earliest offence committed by a “group” of people, such as the offence of group drinking in the Period of Western Zhou Dynasties (1046 – 771 BC),4 contained no requirement about the number of people involved in that crime. The requirement of a number of persons for joint crime can be found at least in the reliable materials recording the laws of Qin Dynasty. Cases of offences committed by a specific number of multiple persons began to be judged by specific regulations. The number of the criminal would not only affect the trial process, but also the severity of the penalty. In the Bamboo Slips from the Qin Tomb at Shui-Hu-Di of Yunmeng County, there is a reference to the Feng-Zhen-Shi (the Part mainly concerning trial process). Accordingly, the trial of a “group of thieves” might allowed only

2

Cf. Cai, A History of Chinese Criminal Law, pp. 212 – 213. Gao/Ma (eds.), The Annotated Translation of Chinese Criminal Law Records in Ancient Dynasties, p. 22. 4 “Book of History (the Shang Shu) – Admonition of Liquor ( )” was the Order issued by the Regent Zhou Gongdan (?. – c. 1095 BC) of the Western Zhou Dynasty, banning people from gathering in crowds and drinking alcoholic beverages together, and violators would be severely punished. See Zhao (ed.), The History of the Chinese Legal System, p. 36. 3

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the head but not the body to be examined.5 In the Part of Questions and Answers to the Laws of Qin Dynasty, the impact of the numbers of criminal on the penalties is recorded in great detail: if five thieves stole together, the penalty would be very severe if the stolen goods were worth of more than one coin, but the penalty was much lighter when the criminals involved were less than five.6 In the laws of Han Dynasty, during the reign of Emperor Wen (180 – 157 BC), the offence of “three or more persons drinking in a group without a reason” was already in place.7 The requirement that the minimum number of perpetrators of an offence committed by a “group” be three was summarized by the Great Jurist Zhang Fei, whose po), a senior official of the highest judicial body with sition was Ming-Fa-Yuan ( the power to provide commentary for the laws, at the reign of Sima Yan, Emperor Wu of Jin Dynasty. The Jurist Zhang Fei summed it up by saying that “three persons was )”.8 The phrase of a group of three has influenced even called a group ( until modern Chinese criminal laws in the definition about the criminal groups. The ) promulgated in 653 AD is a collection of ancient Chinese Code of Tang ( laws. One of its explicit provisions is that “the joint criminals refer to two or more persons who commit a crime together”.9 The spirit of this provision has survived into modern times. In ancient Chinese history, the requirement and limitation of the number of perpetrators in a joint crime had many implications. In term of law, it facilitates the transformation of the concept of “group crime” into the modern concept of joint crime. In term of legal science, it helped Chinese jurists to understand the relationship between the number of criminals and the harmfulness of a crime, especially the distinction between the leader and the follower criminals. In the course of social development, the requirement of the number of joint criminals led Chinese criminal justice to get rid of the practice that crimes would implicate family or household members under the influence of the primitive legacy of group fighting. The Chinese criminal laws were thereby moving towards the direction of a modern civilization where individual responsibility would prevail. Today, the numerical requirement for joint crime has become the most obvious feature that distinguishes joint crime from individual crime.

5 See: The Working Group (ed.), The Bamboo Sketches from the Qin Tomb at Shui-Hu-Di, pp. 255 – 256. 6 The Working Group (ed.), The Bamboo Sketches from the Qin Tomb at Shui-Hu-Di, pp. 150 – 151. 7 See: Cai, A History of Chinese Criminal Law, p. 213. 8 See Editorial Department, Chinese Criminal Law Records in Ancient Dynasties (1988), p. 51. 9 Changsun et al. (eds.), The Code of Tang, p. 116.

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2. Characteristics of Subjective Mental State In term of subjective mental state of a crime, the distinction between “intent” and “fault (negligence)” was recognized very early in ancient Chinese judicial practice. ), which keeps records of ancient China, it is written that In the Book of History ( Gao Tao (2220 – 2113 BC), who is revered as “the originator of judge”, stated that “no fault is too great to be forgiven, no intent is too small to be punished” ( ).10 At least in the law of Qin Dynasty, there were already provisions and practices for determining crimes and imposing penalties according to the difference between intent and negligence in the context of joint crime. Among those who participated in a theft, the one who knew it was a crime must be punished, while the unknown would be freed. In the case where two perpetrators did not know each other and they happened to burgle the same premises, punishment must even be based on whether or not the two had premeditated: when yes, each of them must be punished on the basis of all the goods stolen by both; if no, each shall on the basis stolen only by himself.11 In Tang Dynasty, joint crime was regulated in the chapter with the sense of General Part (hereafter GP) in the modern criminal law. The Code of Tang requires for “joint criminals” that not only the number of people be “two or more”, but also that the person who firstly creates the idea shall be the leader, and the rest shall be the follower”.12 Thus, the “joint criminals” explicitly mentioned in that Code would be limited only to intentional joint crimes. There is no similar provision for negligent joint crime in that Code. However, the principles of treatment can be seen in the provisions of specific offences. In the case of manslaughter, such as the cases where persons try to “lift a heavy object together but fail”, “climb together to high and dangerous place but lose one’s footing”, or “catch a thief together but accidentally kills or injures a bystander”, and so on, the sanction shall be “the redemptive one according to the circumstances of each case, when the joint negligence caused injury or death to a person”. There are also provisions for mitigated punishment in other negligent offences. Some of them are the case of official negligence, such as “losing a spy or enemy )”, “losing a prisoner ( )”, “misbehaving at a state ceremoat the border ( ny ( )”, or “making wrongful judgment due to negligence ( )”. And some of them are the negligent acts caused by “mistakes”, such as killing a person due to mistakes in prescribing, dispensing and acupuncture, killing or wounding people by serving unclean food due to a mistake or by mis-operating due to a craftsman’s mistake in handling his job. In these offences, the penalty for a “public offence” will be less severe than that for a “private offence”, and the penalty for negligence will be less severe than that for intentional offences. In the case of negligent 10

See Guo, The Complete Collection of the Modern and Ancient Texts of the Shang Shu, p. 23. 11 The Working Group (ed.), The Bamboo Sketches from the Qin Tomb at Shui-Hu-Di, pp. 152 – 156. 12 Changsun et al. (eds.), The Code of Tang, p. 116.

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killing of an officially- or privately-owned ox or horse, criminal liability was even not required, but only compensation. The law of Tang Dynasty, with its sophisticated legal principles and provisions, became the “model of feudal law” in China and had a profound influence on the laws of the following Dynasties of Song, Yuan, Ming and Qing,13 regarded as “the standard of criminal law in East Asia for 2,000 years”.14 Qing Dynasty is the last dynasty of the feudal era in China. Its New Penal Code was promulgated in January 1911, trying to save the monarchy from overthrown in the historical change. Although this code adopted the modern western legal principles, Qing Dynasty could not be able to preserve its rule and was replaced by a republican regime in October. This Penal Code was not actually enforced. However, this Code was drafted by the help of the Japanese jurist Asatarou Okada, the later Republican governments would have to take it as an early blueprint in the formulation of its own criminal codes. In term of joint crime, the legislative drafters of the late Qing Dynasty recognized that “the theories and judgments of countries differ as to whether there is or is not a joint negligent offence”,15 but still believed that joint negligent offence should be a “positive theory”16 and the theory with only joint intent would be a negative one.17 Article 35 of the New Penal Code of Qing Dynasty adopted then the provision of the joint negligent offence and the Republican government followed its suit in its 1928 Criminal Code. But, this provision did not last long and was deleted soon in the 1935 revision of that Code.18 Immediately after the founding of the People’s Republic of China (hereafter PRC or New China) in 1949, preparations for a criminal code began. In July 1950, the Legal Affairs Commission of the Central People’s Government submitted the Tentative Outline of the Criminal Law of the PRC, which was prepared for internal discussions. The concept of joint crime therein was already limited to “two or more persons committing a crime jointly and intentionally”. This concept was later established in the Tentative Guiding Principles of the Criminal Law of the PRC on September 30 of 1954. After that, the explicit provision was adopted either in the Preliminary Draft Criminal Law of the PRC (22nd Draft), which was sent to all of the people’s deputies by the General Office of the Standing Committee of the National People’s Congress on June 28 of 1957 for comments, or in the Amended Draft Criminal Law (33rd Draft), which was issued for comments on October 9 of 1963. In addition to the concept that “a joint crime is a crime committed intentionally by two or more persons”, a provision was prepared in the 33rd Draft that “a crime 13

Editorial Group, The History of the Chinese Legal System (1982), pp. 226 – 227. Wang, in: Changsun et al. (eds.), The Code of Tang, p. 1. 15 See Qin (ed.), The New Criminal Law Explained, pp. 158 – 160. 16 Zhao/Chen (eds.), A Compilation of Modern Chinese Criminal Law Legislation, p. 77. 17 For an evaluation of the various views, see Dong, (By Vernacularized Notes) A Detailed Explanation of the Criminal Law of the Republic of China, p. 49. 18 See: Cai, A History of Chinese Criminal Law, p. 216. 14

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committed by two or more personsjointly and negligently” should be “not punishable as a joint crime” and that “if they are criminally liable, they shall be punished (separately) according to the crime they have committed”. This proposition of the Chinese Legislature towards joint crime was finally confirmed in the first Criminal Law of the PRC promulgated in 1979.19 Nowadays, the joint crime has been limited to intentional crimes in the CCL and the joint negligent crime was not included. This proposition reflects the inheritance from historical tradition and a summary of real-life experience. 1979 was the year when the CCL was for the first time officially promulgated, when was also the time China just out of the ten-year civil strife of the Cultural Revolution. Chinese scholars of criminal law held then that joint negligent crime was “in fact a form of objective imputation, the result of which could only expand the scope of joint crime indefinitely and treat those who were not at all joint criminals as such”, fearing that the adoption of joint negligent crime would provide an easy theoretical basis for “joint liability”.20 In further researches, issues of joint negligent crime were examined in a more complete way: It is noted that the criminal laws of Japan and other countries did not limit the subjective mental state in joint crime, allowing the legislation and judicial practice of joint negligent crime; that there were strong opinions in theory advocating joint negligent crime both in the former Soviet Union21 and in contemporary Germany22; and that the mainstream of the modern criminal legislation and judicial practice had taken the concept that joint crime is conditioned by joint intent. With serious consideration, the Chinese Legislature realized that “only an intent could hold the co-offenders to form an organically connected whole, constituting a joint crime with the result more harmful than an individual crime”.23 Therefore, the 1979 CCL stipulated that “a negligent crime committed by two or more persons jointly shall not be punished as a joint crime; those who should bear criminal responsibility shall be individually punished according to the crimes they have committed.”24 These provisions were in line with the mainstream of modern criminal law, with the stage of current social development, and with the situation of rule of law in China. The proposition remained unchanged during the revision of the CCL in 1997. Chinese criminal laws of joint crime inherits the Chinese ancient legal tradition, and has gone through the development from not strictly requiring the subjective mental state of a crime to distinguishing intentional from negligent crime, to adopting different principles of punishment for intentional joint crime and negligent joint 19 Information in this paragraph, see: Gao/Zhao (eds.), Selected Documents on Chinese Criminal Law Legislation, pp. 198, 202, 230, 252, 279, 338. 20 By Yang et al., General Part of Criminal Law, pp. 196 – 197. 21 For example, for Prof. A. H. Trainin’s opinion, see: Cao et al., (Interpretor), A Scientific History of Soviet Criminal Law, p. 87. 22 For example, Roxin, Strafrecht Allgemeiner Teil, Bd. II, p. 97. 23 Gao, The Birth and Development of the Criminal Law of the People’s Republic of China, p. 28. 24 Gao/Zhao (eds.), Selected Documents on Chinese Criminal Law Legislation, p. 338.

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crime, which conforms not only to the historical rule of refining the concept of crime but also to the legal principle that criminal punishment takes intention as the principle and negligence as the exception, which is in line with the progressive trend of the development of human civilization.

II. Characteristics of the Theoretical Basis of Joint Crime The theoretical basis of joint crime in the Chinese criminal law today consists of the academic influences mainly from four aspects. Firstly, the influence is from the Chinese culture of thousands of years in the topic of joint crime, especially from the ancient Chinese legal culture represented by the Code of Tang. The influence of this aspect has given the modern CCL a Chinese cultural imprint that cannot be eliminated. Secondly, it is the influence of socialist criminal law from the former Soviet Union of Russia. The jurisprudence of the former Soviet Union provided the main academic supports for the New China in the period from early 1950s shortly after the PRC was founded until late of 1970s when the open-up and reform policy were carried out. Thirdly, the influence comes from modern western legal theories. This has mainly occurred in the last forty years. Of them, a much stronger influence is from the Civil Law countries, chiefly from Germany. But the theories and practice of the Common Law countries have been also given special attention. Fourthly, it is the summary of China’s own experience in the criminal justice practice. The theory of Chinese criminal law inherits the ancient legal tradition, draws on the theoretical achievements of foreign countries, and forms the main theoretical basis of joint crime in China on the basis of the practical experience of Chinese criminal justice. 1. Theoretical Characteristic of Antiquity In the early days of ancient China, the practice of “group crimes” did not have limitation in terms of the number of criminal and the subjective mental state. It was in line with the purpose to exert a deterrent effect on punishment. According to Chinese jurisprudence, “punishment began with the military”, meaning that ancient criminal law in China arose out of military action.25 The most famous criminal law was the order issued by the King Qi of Xia Dynasty, who was the first king in Chinese history after the change from the “Honored Abdication System” to the “Hereditary System”, before his conquest of the You-Hu-Clan: “Those who disobeyed the King’s Orders shall be executed in front of the ancestral temple, including their wives 25

Editorial Group, The History of the Chinese Legal System (1982), pp. 19 – 20.

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)”.26 After the victory of the Zhou Dynasand children ( ty over the Shang Dynasty, the Regent Zhou Gongdan made an “offence of group drinking”, which forbade gathering together to drink, in order to avoid repeating the wrongdoings of the previous dynasty, which had led to political corruption and social chaos.27 The concept of “group crime” served as a warning and a kind of threaten to a wide range of subordinates to obey orders and disciplines, while also simplifying the process and strengthening the power of the law. Once the deterrent and preventive effects of criminal law were recognized by the rulers, the question of the conditions naturally gained importance under which the law was applied. During Qin Dynasty, “rewarding military merit and prohibiting private fighting”28 was an important policy of the state. Post-mortem examinations in cases of homicide were an important means to ascertain the facts of the case, enforcing the law fairly and curbing private fighting. In cases where there were some criminals, the nature of the case was easier to ascertain. And since it would often be difficult in transporting the bodies of the dead, testing only the head and not the whole body in this type of cases would not result in the misapplication of the law. In addition, the more the number of criminals, the more serious the harm of the crimes would be, and therefore the more severe the punishment should be imposed for the crimes committed by many perpetrators, so that a greater deterrent effect might be exerted. In the cases of joint crime, the laws of Qin Dynasty already recognized the danger of the “plotter”. The same penalty would be imposed on the plotter who did not participate in the theft, even if the thief had not yet stolen anything.29 Thus, before Han Dynasty in ancient China, special attention was already paid to the number of criminals and to the criminal intent, with the rationale that the joint crime would cause more serious harm and therefore need more severe punishment. After Han Dynasty, the state system in China as well as the legal system were strongly influenced by the doctrine of Confucianism, which was created by Confucius (551 – 479 BC) during the Spring and Autumn Period. Its central idea in the aspect of governance of the state was to promote “ritual rule”, with an emphasis on moral education. At the beginning of the unification of China by Emperor Qin Shi Huang (259 – 210 BC), Confucian scholars suffered a severe strike when they opposed the System of Prefectures and Counties, which the Emperor wanted to establish, and advocated a return to the System of Enfeoffment of West Zhou Dynasties, which had been gone. However, when the centralized feudal system established by West Han Dynasty gained a firm foothold, the value of Confucianism in maintaining national unity and educating the people was reasserted. During the reign of Emperor Wu of Han Dynasty (156 – 87 BC), the policy of “dismissal of the hundred 26

See Zeng (ed.), The History of the Chinese Legal System, p. 26. See Zeng (ed.), The History of the Chinese Legal System, p. 48. 28 Zhang/Rao (eds.), Outline of the History of Chinese Legal Thoughts (V. I), p. 179. 29 The Working Group (ed.), The Bamboo Sketches from the Qin Tomb at Shui-Hu-Di, p. 152. 27

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schools and the exclusive veneration of Confucianism” was advocated, and the refined Confucian doctrine30 become the mainstream in China and kept its influence for two thousand years. During Han dynasty, Confucianism had significant impacts on the development of criminal law, including the aspect of joint crime. Firstly, the idea began to play an important role that punishment should only be imposed to the criminal himself and not to his family. The classical Confucian dogma )”31 was valthat “in punishing a criminal, no offspring shall be involved ( ued and translated into a practical standard of “goodness should be extended to the )”.32 offspring, while evil should be stopped to himself ( This dogma eventually became so popular that finally went into the Chinese idioms. From the reign of Emperor Wen of Han Dynasty (180 – 157 BC) onwards, the law of “Guilty by Tandem Method”33 began to be repealed, although it did not completely disappear until very later in history. However, the new stage of exerting the principle of bearing responsibility solely for one’s own crime began in Chinese criminal laws. )” has become an imSecondly, “conviction on the basis of the heart ( portant principle in criminal trials. “The principle of the Spring and Autumn, which is the Confucius classics, in dealing with criminal justice was the conviction on the basis of the heart. Those whose mind is good but contrary to the law shall be exempted, while those whose mind is evil but in conformity with the law shall be punished ).”34 The em( phasis on the subjective mental state of a crime provided a wide field of practice for Chinese jurists to deepen their understanding of intention and negligence in relation to crime. Thirdly, the concept of the “first plotter” began to gain importance. An Emperor of the Han Dynasty even issued an Edict: “From now on, a son who was the first plotter to hide his parents, a wife who hides her husband, or a grandson who hides his eldest parent, shall all be exempted.” The famous Confucian scholar Yan Shigu in Tang Dynasty explained the meaning of “the first plotter to hide” as “the person who initiated the plot for the sake of hiding the guilty one”. This kind of leniency was limited, because when “parents hiding their sons, husbands hiding their wives, and grandparents hiding their grandchildren might be guilty of the capital offence, the cases shall still be submitted to Ting-Wei, the highest officer in charge of criminal matters”. But the Han Emperor had already accepted the ideas that “it is the nature of the father and the 30

Zhang/Rao (eds.), Outline of the History of Chinese Legal Thoughts (V. I), p. 317. Zheng/Jin (transl. & annot.), A Translation and Annotation on Mencius, p. 27. 32 Xu (Editor of the Sub-History), (The Complete Translation of the Twenty-Four Histories) Hou Han Shu ( ) (all three volumes), p. 904. 33 Gao/Ma (eds.), The Annotated Translation of Chinese Criminal Law Records in Ancient Dynasties, p. 37. 34 Heng/Wang, The Collation and Annotation of the Commentary on Salt and Iron, p. 344. 31

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son to be close to each other, and of the couple to be together. When facing a disaster, they will still risk their lives to rescue”, and that this was “sincere love knotted in the hearts, the most benevolent and generous one, how could it be disobeyed!”35 At that time, the debates on whether to adopt Confucianism were widespread, and the idea became gradually accepted that “the righteousness of the Spring and Autumn refers only to kill the first evil”.36 The development of criminal laws in ancient China were greatly pushed forward by these thoughts. After Han Dynasty (220 AD), China entered a period of chaos lasting over 400 years. During this chaotic era of dynastic annexation and rivalry between separatist powers, the codification and application of laws were given great importance by various dynasties. The rulers wanted to win wars and maintain the gentry’s privileges by ruling according to law. Therefore, the skills and methods of legislation, enforcement, principles of trial and annotation on laws were developed to a great extent. It is unfortunate that most of these laws and treatises have been lost, but the surviving fragments visible today are still very much in brilliance. According to the available literature, the surviving titles of the Laws of Jin Dynasty contained already a chapter )”, which sets out the types of severity and degrees for on “the Name of Penalty ( offences and punishments, clarifies the meaning of legal concepts, provides the provisions for plugging loopholes in the law, and illustrates the framework of the law.37 The Great Jurist Zhang Fei lived in this era. His “Table of Notes on the Law )” summarized the achievements of several generations of legal scholarship, commenting on “to commit knowingly means intent”, “to take it for granted means mistake”, “to commit against his will means negligence”, and “to propose the first words means to create an idea”, “to discuss between two persons means to plot”, and “to give advice and drive the crowd means to lead” and more.38 These annotations are the brilliant achievements of ancient Chinese jurisprudence. Ancient China regained its national unity in the Dynasties of Sui and Tang. The Code of Tang promulgated during this period is well structured, concisely written, precisely annotated and with appropriate examples, and represents the highest level of legal achievements in ancient China. In term of joint crime, the Code of Tang made some far-reaching provisions in addition to the clarification of joint crime.39 Firstly, the Code of Tang divides the joint crimes into two categories, one distinguishing principal from accessory offenders and the other not. The distinction be35

For this paragraph see: Ban/Yan, annot., The Book of Han, p. 176. Ban/Yan, annot., The Book of Han, p. 2431. 37 Gao/Ma (eds.), The Annotated Translation of Chinese Criminal Law Records in Ancient Dynasties, p. 91. 38 Gao/Ma (eds.), The Annotated Translation of Chinese Criminal Law Records in Ancient Dynasties, pp. 92 – 93. 39 For the following on the provisions of the Code of Tang, see: Changsun et al., The Code of Tang, for the relevant articles. 36

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tween principal and accessory offenders shall apply to the whole Code, since it is ), whose function is equivalent stipulated in “the Law of Nominal Examples” ( to the GP of criminal law today. The principal offender refers to the one creating the idea and the accessory offender to the follower. An accessory shall be punished by one level lesser than a principal offender deserts. In the case where a joint crime is committed by the members of a family, the penalty is normally only imposed upon the eldest male and not upon the inferior. However, in the cases of theft and battery, the eldest person shall be the principal and the inferior will not be innocent but shall be deemed as an accessory. There are two types of joint crime without distinction between principal and accessary. The first type is defined by the word of “all” in the provisions. “If a provision says ‘all’, the offence thereof shall be treated without distinction; if no ‘all’, the rule of distinction shall be applied.” The type of offences without distinction but with the same penalty for all co-offenders shall include the serious offences such as treason, which violated the imperial power, and murder of an ascendant member of a family, which would seriously damage the feudal ethical relations. The other type of offences without distinction refers to those to be committed in person, such as robbery, adultery, abducting a person as maid-servant, entry without authorization, escape, and crossing checkpoints and city walls without a pass, which need committing personally and the distinction is not required. Secondly, the Code of Tang provides that a person with status and a person without status may form a joint crime, but this shall be handled on a case-by-case basis. In the case where a person with the status of “warden” in a public office participated in the crime, even if it was the outsider who created the idea, the person of the warden shall be the principal and others be the accessary. In the offences which do not require the status of a public office, such as the offence of “an inferior seducing someone to steal his family’s property”, the distinction shall be applied and “the inferior shall be the principal” and “the others be the accessary”. Thirdly, the Code of Tang provides for joint crime not only with the principal-accessary distinction, but also with special provisions for treating the different offenders according to different circumstances. In the case where “the offenders who steal jointly and spontaneously kills or injures another person shall be treated as a robber; if the co-offender is unaware of the killing or injuring, he shall be punished only according to the law of theft.” Even in the case of “treason”, after the provision that “those who have moved up on the road (to rebellion) shall be all executed”, it still added that “those who were compelled to follow shall not be”, i. e., “those who were not aware of the same plot but were temporarily compelled to follow, shall not be punished.” In the offences of “rebellion”, those “fleeing to the mountains and lakes”, “hijacking prisoners”, as long as they were “compelled to follow”, shall “not be punished”. Of course, what is the actual practice of this exception in the cases of treason would be still questionable. However, it is clear that the Code

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of Tang already began to formulate a criminal policy of individualization and differentiation of the punishment for different offenders. Fourthly, the Code of Tang provides for joint crime in conjunction with the issues of voluntary surrender. The example is vividly given: if one of the co-offenders flees and the person arrested (A) claims that the fugitive (B) is the principal, in the absence of other evidence, A shall be treated as an accessory, even if he is really the principal himself. When B is later arrested and confesses that A is indeed the principal and A has to admit, A will be treated as the principal, the sentence already served shall be commuted in accordance with the law and only the remainder of the sentence shall be further served. There are five types of punishment: flogging, caning, imprisonment, exile and death in the Code of Tang, each of which contains detailed ranks of different levels. The correct commutation and execution of these punishment are carefully explained. This approach may have a strong impact of criminal policy upon disintegrating and disorganizing criminal gatherings. The Code of Tang had its principles as well as its provisions observed for over a thousand years in the subsequent dynasties until Qing Dynasty. In the late 19th Century, the Qing Monarchy of the last dynasty was in the midst of internal and external difficulties caused by imperialist aggression and internal popular resistance. A reform was conceived so that the Monarchy might maintain its rule by changing the law. In term of joint crime, the late Qing legislative reform was modelled on the Japanese laws of post-Meiji Restoration, which abandoned the distinction between principal and accessory offenders since the Code of Tang and attempted to adopt instead the concept of “joint negligent crime”, Accordingly, those who committed acts in a joint crime shall be the “perpetrator” and those who aided and abetted in that crime shall also be the “perpetrator”. By this “positive” approach, the Qing’s legislators could exclude the interference of the old guard who opposed the reform. However, such provisions on joint crime would not only have the scope of joint crime broadened, but also get the implementation too complex and difficult. When assessing the criminal liability of the different participants in a joint crime, “it is very easy to cause the result that the same crime will be punished differently”.40 So, the Republican government later quietly abolished the provision of joint negligent crime, while changing the punishment for accessories from “may” to “must” be mitigated. 2. Soviet Russian Influence The influence of the former Soviet Union’s socialist theories began to give its impact in China in 1920s. Under the leadership of Dr. Sun Yat-sen against the Beiyang warlord government, the Kuo-Min-Tang or Nationalist Party (hereafter KMT) established the Three Major Policies of alliance with Russia, alliance with the Communists and support for the peasants and workers in 1924. The Nationalist government in Guangzhou at that time was supported ideologically and materially by the Soviet 40

Cai, A History of Chinese Criminal Law, p. 215.

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Russia. Russian influence was also strong in the field of criminal law by using the concept of “counter-revolutionary crime”.41 In 1927, the Ministry of Justice of the Nationalist Government stated in the discussion of the Counter-Revolutionary Crimes Ordinance that: “The Draft of this Ordinance is based on the new Soviet Criminal Law”42. However, the Soviet Russian Criminal Code with the “counter-revolutionary crimes” as its first chapter in the Specific Part was just drawn up in 1926 and came into force on January 1 of 1927. From the overthrowal of Qing Dynasty in 1911 until the founding of the New China in 1949, both the Nationalist Government in Nanjing under the leadership of the KMT and the people’s democratic governments established by the Communist Party in its own base areas, made counter-revolutionary crimes the most serious crimes.43 For example, the Communist Party of China (hereafter CPC) had the Regulations on the Punishment of Counter-Revolution in the Central Soviet Areas in April 1934.44 After the founding of the PRC on October 1 of 1949, the influence of Soviet jurisprudence was getting stronger, since the New China “took Russia as its teacher and learned the laws from the Soviet Union”45. From then on until now, the study and research of Russian criminal law has continued uninterrupted in the New China. During this time, large-scale studies were mainly carried out in the 1950s and early 1980s. In the aspect of joint crime, the impact of Soviet criminal law theory could be mentioned mainly in the followings. Firstly, a holistic concept of joint crime was introduced. Soviet Russia tried to formulate the definition of joint crime in the Guiding Principles of Criminal Law in 1919. However, it was not until the Outline of Criminal Legislation of the USSR and the Union Republics in 1958 and the Criminal Code of the USSR in 1960 that the definition of joint crime was clarified as “the intentional participation of two or more persons in a crime”. During this long period, there were many debates upon the basic conditions for the joint crime in term of the subjective mental state, the causality between the conducts of each individual perpetrator and the final consequence.46 The 41

In the Regulations on Offences of Oath Breaking by Party Members, promulgated in September 1926, it was stipulated that “Party members who counter-revolutionarily plot civil unrest shall be punished by death regardless of consummation or attempt.” See: Dong, (By Vernacularized Notes) A Detailed Explanation of the Criminal Law of the Republic of China, pp. 152 – 153. 42 See: Zheng/Xu, Selected Materials of the Wuhan Provisional Joint Meetings (Dec. 13, 1926 – Feb. 21, 1927), p. 316. 43 For more information on this topic, cf. Wang, A Reflection on Crimes Against National Security in Chinese Criminal Law, UMKC Law Review 82 (2014), pp. 1029 – 1053. 44 Gao, The Birth and Development of the Criminal Law of the People’s Republic of China, p. 85. 45 Gao, On the Reasonableness of the Four Elements of Criminal Constitution Theory and the Adherence to the Scientific System of Chinese Criminal Law, China Legal Science 2009, p. 5. 46 Kuznetsova/Jazhikova (eds.), Huang, transl., Russian Textbook of Criminal Law (General Part), pp. 379 – 380.

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Legislature and the scholars of the New China should clearly realize the importance of these issues. The Central People’s Government, considering the legislative experience of the Red Base Areas as well as the history since the end of Qing Dynasty, steadily adopted the concept of joint crime with the key words of “two or more persons” and “intentionally” without much controversy. Secondly, the classification of joint crime was instructive. Soviet criminal law introduced not only the concept of “criminal association (criminal organization)” in term of the form of the joint crime, but also the concept of “criminal organizer” in term of the co-offenders. This is also linked to the obligation to report and the liability to harbor arising from the prior conspiracy for the participants in a joint crime. The concept of “criminal organizer” in Soviet criminal law has had a clear impact upon the Chinese theory of joint crime. However, the effect of the prior conspiracy on joint crime, as well as the issue of liability for harboring, is regulated in the Specific Part (hereafter SP) of the CCL. Once again, the classification of co-offenders in Soviet criminal law is mainly based on the division of labour into “perpetrator”, “organizer”, “instigator” and “helper”.47 The Soviet method of classification provided a reference and blueprint for Chinese theory to have a better way to distinguish the responsibility of different co-offenders. 3. Western Theories China began its reform and opening up in the late 1970s. After that, its main academic focus in law turned to the West. Due to the convenience of English language, the Chinese criminal law scholars had their first look toward the contemporary criminal jurisprudence of the Common Law countries. However, the complexity and noncompatibility of the criminal justice systems in the Common Law countries became an obstacle for Chinese scholars to do further researches. China was then in urgent need to build up a modernized legal system, did not have time to overthrow the legal traditions of the Civil Law System since the end of Qing Dynasty and after 1949, and did not have the energy to re-establish a new legal system that required a large set of legal knowledge to support it. Thus, after the reform and opening up, China followed the path of the late Qing Dynasty, and through Japan, gradually stepped into the European countries of Civil Law System, among which the German criminal law theory was the chief one. However, Anglo-American criminal law theory has not been ignored by Chinese scholars. In term of joint crime, Anglo-American criminal law has a special offence of “conspiracy” and provides “principal” and “accomplice” with categories and de-

47 Gao, The Birth and Development of the Criminal Law of the People’s Republic of China, p. 29.

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grees.48 The laws such as the Racketeer Influenced and Corrupt Organization Act (RICO) have been studied, in some cases even in conjunction with the Legislature. After the turn of the millennium, Chinese criminal law scholars intensified their studies and researches of the more recent Anglo-American criminal law theories and concepts. For example, Prof. George P. Fletcher’s Basic Concepts of Criminal Law was translated into Chinese. Unfortunately, due to language and opportunity, very little knowledge of the Jewish law is known in China. In matters of joint crime, only this maxim is mentioned: “In matters of crime no one can represent another (in Hebrew: ain schlichut bavirah).”49 Today, the study of Anglo-American criminal law is still in a steady process of intensification. The western theory of criminal law has played an important role in the modernization of Chinese criminal law. In term of joint crime, the most important effects are as follows: Firstly, the western theory, especially the criminal laws of the Civil Law System taking the Principle of Nullum Crimen Sine Lege and Nulla Poena Sine Lege (hereafter the Nullum Crimen Principle) as the foundation of their legal system, provides a modern theoretical basis for the Chinese criminal law. The 1997 Criminal Law clearly stipulates: “any act deemed by explicit stipulations of law as a crime is to be convicted and given punishment by law and any act that no explicit stipulations of law deem a crime is not to be convicted or given punishment” (Art. 3). This principle and provision opened a new stage in the development of the rule of law in China. Therefore, in term of joint crime, the issue of how to properly solve the problem was even clearer that “the person who does not directly commit the crime should bear the responsibility for the act committed by the other person who is associated with the crime”.50 The rationale why the criminal law should provide a specific provision for joint crime was strengthened. Secondly, the findings of comparative study showed that modern western criminal law adopted two modes to handle the joint crime. The first one is the so-called unitary theory of perpetrator, which does not distinguish the types of joint criminal participants, but identifies criminal participants only according to whether a person has made a causal contribution to the completeness of a crime. According to this theory, it does not either consider the types and sizes of contributions of each criminal participant to the crime, so it does not provide ranks for punishments to deal with the different acts committed by different criminals (principal or accomplice). Everyone involved in a crime would be treated as the same kind of criminal and imposed the same standards for punishment.

48

For instance, see: LaFave, Criminal Law, pp. 613, 663. For a comprehensive study, see Wang, Modern Criminal Law (General Part), pp. 264 – 268. 49 Fletcher, Wang et al., transl., Basic Concepts of Criminal Law, p. 244. 50 For an overview of the problem, see Fletcher, Wang et al., transl., Basic Concepts of Criminal Law, pp. 244 – 245.

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The other mode is the so-called dualistic theory of participant, which advocates to distinguish the types of criminal participants and apply penalties respectively. By dividing the participants of a crime into the perpetrator and the participant or into the principal and the accomplice, the perpetrator or the principal offender shall be given a heavier punishment and the participant or the accomplice a lighter punishment. The criminal laws of modern European countries show that, although dualistic theory is dominant, there is also a “tendency towards the single perpetrator in the field of organized crime and economic criminal law”.51 The achievements of modern comparative studies provide valuable experience and reference for the progress of modern theory of Chinese criminal law. Thirdly, in the criminal law theory of the Civil Law System, the “conduct control theory in German: die Tätherrschaftslehre ” has occupies the leading position today.52 It asserts that among joint criminals, those who have the ability to control the conduct volitionally, consciously or functionally, shall all be the perpetrators.53 This modern theory of the perpetrator was very helpful for the Chinese theory of criminal law to remove the confusion caused by the theories of the “formal-objective theory” or the so-called “concept of limited perpetrator (in German: die restriktive Täterbegriff)” and the “subjective participant theory (in German: die subjective Teilnahmetheorie)”. The former advocates that the perpetrator should be identified strictly according to the specific criminal conduct stipulated in the criminal law, while the latter advocates that the perpetrator should be identified according to the state of the participant’s will: He who acts by the will of the perpetrator is a perpetrator, and he who acts by the will of the participant is a participant. Therefore, the instigator and the helper may also be the perpetrator when they act with the will of that role. These modern theory and proposition about the joint participants have broadened the vision of thinking for the development of Chinese criminal law. 4. Chinese Experience China has gradually been developing its own theoretical basis for joint crime by summarizing its own criminal practice. At present, the central points of the Chinese theoretical basis for joint crime could be mentioned as follows. Firstly, joint crimes are of a greater social harmfulness than the individual crimes. This is the basis for providing a specific statutory concept for joint crime in the criminal legislation. However, the concept of joint crime in China is not the same as that of “conspiracy” in American criminal law. Joint crime is not a separate crime and does not have its own unique statutory punishment. In the judicial practice, logically speaking, the specific offender shall get convicted in accordance with the specific 51

See Roxin, Wang et al., transl., Strafrecht Allgemeiner Teil, Bd. II, p. 8. Jescheck/Weigend, Xu, transl., Textbook of German Criminal Law (General Part), p. 788. 53 Roxin, Wang et al., transl., Strafrecht Allgemeiner Teil, Bd. II, p. 10. 52

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provisions of the criminal law before the joint crime could be identified and established. For example, a perpetrator must be found to have committed a theft, robbery or intentional homicide in accordance with the requirements of the specific offences first, then the joint offence of theft, robbery or intentional homicide can be identified and established according to the conditions of joint crime. If the specific offence could not be convicted, the joint crime cannot then be separately established in China. Secondly, the recognition of joint crime must comply with the requirements of the Nullum Crimen Principle. Unlike Soviet criminal law theory, which had long been hesitant to accept this principle, the Chinese criminal law theory had long attached importance to this principle. The principle was enshrined in the legislation of the late Qing Dynasty. In the New China, it was early advocated that “the Nullum Crimen Principle is one of the basic principles for the CCL”54. In practice, the CCL has gradually fulfilled the requirements of this Principle. The 1979 Criminal Law was “basically formulated in accordance with the spirit of the Nullum Crimen Principle”.55 And in the 1997 Criminal Law, this Principle is completely stipulated in Art. 3 in its Chinese style. In term of joint crime, the Chinese criminal legislation has since long provided a clear definition with the requirements in term of number of offender and subjective mental state. Thirdly, the CCL adopts the policy of differentiated treatment for different joint offenders, in order to realize self-responsibility and to achieves compatibility between crime and punishment in accordance with the requirements of crime prevention and rehabilitation of offenders. The criminal laws of the New China do not copy the western practice as the late Qing Dynasty legislation did, which classified joint offenders as principals, accessories and abettors, nor did it copy the Soviet criminal law, which classified joint offenders as perpetrators (implementors), organizers, helpers and instigators. Rather, it took its own experience in fighting against crimes and classified joint offenders as principals (ringleaders), accomplices, coerced accomplices and instigators. This classification of co-offenders in the modern Chinese criminal law has been proved by legal practice that it is not only easier and clearer to determine the role of each offender in the case of joint crime, but also helpful to facilitate the implementation of the criminal policy to disintegrate and disorganize the criminals of joint crimes through differentiated treatment. The theoretical basis of the Chinese criminal law in the aspect of joint crime was formed on the basis of inheriting China’s tradition of fighting against joint crimes, drawing on the useful experiences of the criminal law theories of Soviet Russian and western countries in modern times, in addition to the summary of its own practical experience in fighting against the crimes.

54

By Yang et al., General Part of Criminal Law, p. 25. See Wang, Explanation on the Draft of the Criminal Law of the People’s Republic of China (Revised) at the Fifth Session of the Eighth National People’s Congress. 55

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III. Characteristics of the Conditions for the Constitution of Joint Crime Today, the CCL follows the Nullum Crimen Principle and provides for the joint crime with complete and thorough provisions. Firstly, the CCL provides for the forms of joint crime and the conditions of its constitution. Secondly, the CCL provides for the types of joint offenders and the conditions for their constitution. Finally, the CCL stipulates the standards of punishment for various joint offenders. 1. Forms of Joint Crime and Their Constitutive Conditions Academically speaking, in term of the forms of joint crime, the CCL provides the joint crime for the following types: a) the intentional joint crime consisting of two or more persons; b) criminal groups, which refer to a relatively fixed criminal organization composed of more than three persons for the purpose of jointly committing a crime; c) Other types of joint crime. In the CCL, the basis for joint crime is the provision that “the joint crime refers to the intentional crime committed by two or more persons jointly”. In term of numbers, the requirement of joint crime does not change the condition that every person involved in a joint crime must be qualified as a criminal subject. As early as in the Code of Tang, the criminal subject of a joint offence need already qualifying. For example, those persons in the joint crime would not be prosecuted, if they were over the age of 80, under the age of 10, and those neither such as blind people, people without two arms, nor people who are insane. In the current CCL, any person who has not reached the age of criminal responsibility or does not have the capacity to bear criminal responsibility shall not be qualified as the subject of crime in a joint crime and can only be considered as being used like a criminal instrument. At the same time, unless specifically required by the SP of the CCL, the requirement of subject status for the specific kind of offender would not prevent a joint crime from constituted. For example, a husband and wife may constitute a joint offence, and a person without the status of a state functionary could jointly constitute the offence of embezzlement with the person with that status, although the offence of embezzlement need the offender to be a state functionary. With the same reasoning, a female can be a joint offender of rape by helping a male to commit the crime. China began in the mid1980s to prosecute the unit crimes which is similar but not the same as the corporate crime in the West. A unit crime is not a joint crime per se, as the establishment and existence of a unit is lawful whereas any joint crime is not.56 However, a unit could 56 For more on unit crime in the Chinese criminal law, see: Wang, On Doctrinal Basis of Chinese Unit Crime, China Legal Science 4 (2016) (English Version), p. 1.

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constitute a joint unit crime with another unit,57 or with a natural person,58 although a unit cannot constitute a joint crime with its own employees. In term of numbers, the CCL also provides “criminal groups” that are with a relatively fixed criminal organization and composed of more than three persons for the purpose of jointly committing a crime (Article 26 (2)). The choice of “three persons” as the criterion for a criminal group is certainly influenced by the antient tradition that “three persons was called a group”. However, a criminal group would be identified not only by the increased number of persons, but also upon the requirement of an internal “relatively fixed” organization. Thus, these conditions for the constitution of a criminal group will naturally require the organizers and purpose as well as the larger harm that necessarily follows. For those crimes that are committed in large numbers but do not necessarily have a relatively fixed organizational character, the CCL provides a number of offences for which they can only be committed by a “crowd”. For example, the offence of pillaging by gathering crowd (Article 268), offence of disrupting public order by assembling crowd (Article 290), offence of brawl by a crowd (Article 292), and offence of promiscuous activities in a crowd (Article 301), to name only a few. It has been the traditional focus for Chinese criminal laws to strike on the principal offender, whether in a criminal group or in a crowd. For this reason, the CCL specifically refers to the offender who plays the role of organizing, planning or directing a criminal group or a crowd assembled to commit a crime as the “ringleader” (Article 97). However, the CCL also provides more detailed penalties for ringleaders as follows: Firstly, in the case of criminal groups, which are not specifically stipulated in the SP of the CCL, the principle of the GP of the CCL shall be applied that “the ringleaders who organizes or leads a criminal group shall be punished in accordance with all the crimes committed by the group” (Article 26 (3)). In contrast, other principal offenders shall merely “be punished in accordance with all the crimes in which they participated in, organized or directed” (Article 26 (4)). Secondly, for the criminal groups specially stipulated in the SP of the CCL, mainly in the offences of counterfeiting currency (Article 170), of trafficking in women and children (Article 240), of organizing others to cross the national border (Article 318), of excavating ancient cultural sites and tombs (Article 328), of smuggling, trafficking, transporting and manufacturing drugs (Article 347), the direct provisions have been stipulated that the offender with the status of ringleader shall be given a heavier 57

Summary of the National Symposium of the People’s Court of 2001 on Works of Handling the Cases of Financial Crime, see http://www.law-lib.com/law/law_view.asp?id= 290045 (accessed at 1. 3. 2023). 58 Cf. The Case of Ma Rufang et al., of Loan Fraud, Illegal Issuance of Loans and Misappropriation of Funds – Application of the Name of the Offence of Loan Fraud Jointly Committed by a Unit and a Natural Person Together, in The 1st – 5th Divisions of the Criminal Trial Chamber of the Supreme People’s Court of the People’s Republic of China, ed., Guiding Cases on Criminal Trials in China (Crimes against the Socialist Market Economic Order) (2009), p. 206 et seq.

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punishment. In addition, for the group offences such as “terrorist organizations” (Article 120) and “organizations of a gangland nature” (Article 294), a distinction shall be made between “organizers and leaders”, “active participants” and “participants”. The statutory punishments are provided at different levels of severity respectively for each of them. On the other hand, for the crimes committed by a crowd, which are specifically stipulated in the SP of the CCL, the distinction is basically made between the “ringleader” and the “other participants” or “active participants”, and the corresponding punishments of either heavier or lighter shall be applied. There are also a couple of individual offences that do not distinguish these types of offender and the offenders in the crowd shall get heavier punishment, for example, the offence of indecency with children by a crowd. In term of subjective mental state, as mentioned above, joint crime in the CCL has been conditional on intent. In its entirety, joint criminal intent contains two layers of meaning: firstly, the conduct committed jointly by multi-participants must be an intentional crime in the CCL; secondly, each joint offender must have the decision to commit the crime together with other participants. The former refers to the criminal intent in the individual offence; the latter refers to the joint intent of a joint offence. In the joint intent, each co-offender knows that he is not committing the crime alone, but together with the others, and that each co-offender knows that they will together cause some consequence harmful to the society and all hope or indulge this consequence to happen. In the Chinese criminal law theory, joint intent has two kinds of fundamental significance. Firstly, joint intent provides a basis for justifying the responsibility that all co-offenders must bear for the acts committed by himself and others. Through joint intent, the acts of the joint offenders are integrated as a whole, the acts committed by oneself become the complementary to the acts of the others, and, as each person regards the acts of the others as his own, the result caused jointly becomes, of course, their common fruition. Joint intent then provides the basis for joint responsibility for the crime they jointly caused. Secondly, joint intent also provides a consensual basis for the division of roles of joint offenders in a joint offence. Where each co-offender directly, which means with his own hands, commits an offence stipulated in the CCL, none of the roles will affect the establishment of the offence. Even in the cases where co-offenders do not directly commit the specific criminal conducts of an offence, especially in an internal hierarchical criminal organization, they, no matter as the ringleaders or minor roles, were supporting the criminal acts of others from their respective positions and perspectives on the basis of common intent as a consensual basis. The division of roles might make the intent of each offender different in contents rather than identical. Thus, a helper who intentionally provides his assistance to a perpetrator who has no idea of it shall become the so-called “one-sided participant or one-sided co-offender”. The various

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co-offenders support each other, consciously and voluntarily, to form a complete joint intention. Joint intent is usually clarified prior to the act, but it may also be established before the act ended. The former is known as “joint crime with prior conspiracy”. If the joint intent is formed in the course of action after the commission of the offence, it is the so-called “joint crime without prior conspiracy”. The CCL does not stipulate the specific offence of “conspiracy” as the Anglo-American criminal law does. However, when necessary, it shall expressly provide that the “prior conspiracy” shall constitute joint crime in a specific offence. The typical example is Article 310 of the CCL, which provides that where there is any conduct of harboring, “those who have prior conspiracy shall be punished as joint criminals.” Only harboring after the offence has been completed shall the offence under that article constituted. Consequently, according to the requirements of joint intent, the simultaneous perpetrators cannot be joint perpetrators. In other words, those who commit burglary in the same warehouse without knowing each other are not joint perpetrators. The person who is used as an instrument is not a co-offender either. This includes the minor who has not reached the criminal age or the person who does not have the criminal capacity, as well as the person who is unknowingly used by the perpetrator. In a joint offence, the person who commits other acts beyond the scope of joint intention shall not be deemed as a participant in the original joint offence. A typical example is the case of conspiracy to commit a theft in which one of the offenders commits an arson that goes beyond the criminal plan and other thieves would not be responsible for it. A similar situation exists in the relationship between the instigator and the perpetrator, in which the instigator would not be responsible for the acts beyond the contents of the instigation. However, in the Chinese criminal justice practice, an opinion of the Supreme People’s Court of the PRC on a criminal traffic accident case has raised questions as to whether joint crime can also be constituted by negligence. The Supreme People’s Court held that in the case where “after a traffic accident, the person in charge of the unit, the owner of the motor vehicle, the contractor or the occupant of the vehicle instructs the perpetrator (of the driver) to flee, resulting in the death of the victim due to lack of assistance”, any of them should be punished as a co-offender to the crime of traffic accident.59 In the 1997 Criminal Law, the offence of traffic accident in Article 133 is an offence of negligence. The act of fleeing after a traffic accident (hit-andrun), as well as the circumstance of causing death by fleeing, are aggravating circumstances of the traffic offence, which are stipulated in the same provision. In this way, to prosecute the co-offender supporting the act of hit and run after a traffic accident resulting in the death of the victim would look like a kind of prosecuting the joint negligent crime. However, there are significant differences between the offence of 59 Article 5 of the “Interpretation of the Supreme People’s Court on Some Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents” (2000).

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traffic accident and the act of hit-and-run in term of the conditions of the offence. The act of hit-and-run, according to the opinion of the Supreme People’s Court, is an “act of fleeing after a traffic accident in order to escape prosecution”,60 which means that it is an intentional act. Therefore, in cases where the victim dies as a result of a hit-andrun, it shall be another case in which other people instruct the driver to escape and it is in fact a joint intentional crime. The Supreme People’s Court should have correctly handled the issue. However, the theoretical problem of “joint crime in the offence of traffic accidents” may only be solved in the future criminal law amendment. 2. Types of Co-Offender and the Conditions for Their Constitution In Chinese criminal law, the prerequisite of a joint offender is the existence of a joint crime. The term “joint crime” in China is not an independent offence. In addition to the number of persons and intent, the existence of a crime is required for joint crime, i. e. in a case where the multi-persons commit a crime together intentionally, at least one of them must have committed an act that constitutes a crime under criminal law before the acts of these persons can constitute a joint crime and they can become the joint criminals. In the case of the crime by a “crowd”, the fact that all the persons are gathered together in a form prohibited by the criminal law is itself an act of commission already. Among the actors, those who did not commit a crime directly (personally) must be based on the fact that the act of others has constituted a crime, according to the specific link with the case in terms of their subjective mental state and objective act, to determine whether they can be treated as a joint criminal. The joint offenders are the key issue of joint crime, as all discussions must ultimately come down to the treatment of each joint criminals. The variety of joint crime demonstrates the complexity of the issue. An act that is identical in behavior or even in verbal expression may have different meanings in different joint crimes. As a result, Chinese criminal law has undergone a relatively long period of exploration and practice in improving the classification of the joint offender. In the 1979 Criminal Law, the statutory classification was based on a mixture of criteria. Accordingly, the principal, the accomplice and the coerced accomplice were basically distinguished according to the role and function of the joint offenders in a crime. In addition, the instigator was classified separately according to the division of labour. This classification worked well in legal practice. The 1997 Criminal Law continued this classification only with some minor amendments in the details.

60 Article 3 of the “Interpretation of the Supreme People’s Court on Some Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents” (2000).

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a) Principal Offender In the 1997 Chinese Criminal Law, a principal offender refers to “one who organizes and leads a criminal group in conducting criminal activities or plays a principal role in a joint crime” (Article 26). According to the types of joint crime, the principal offender can be further subdivided into three kinds: the ringleader of a group who plays the role of organizing, leading, directing and planning in a criminal group; the ringleader of a crowd who plays the role of organizing, planning and directing in a crowd crime; other ordinary principal offenders who play a major role in ordinary joint crimes as well as in a criminal group or who have committed major crimes in joint crimes. The determination of the principal offender on the basis of role and function, rather than on whether the act of a specific offence committed personally or directly, is an important feature of the principal offender under the CCL. Therefore, the principal offender in the real specific case shall be finally and accurately identified according to the type of joint crime, the type of specific offence and the specific conduct and consequence of that offender involved. Comparing with the standard of direct perpetrator in the West, not all perpetrators who personally commit the offence stipulated in the CCL shall be the principal. Only those who play a major role in the completion of the crime or cause serious harm in the crime can become the principal. And in term of the standard of indirect perpetrator, not all persons who act through other persons acting on their instruction can be a principal, but only those who play the role of “organizing, leading, directing and planning” the whole crime can be principals. From the standard of the participants in the joint crime, not all the offenders who do not directly commit the offence stipulated in the CCL would not be possible to become the principal. Those who are capable to control over the entire crime and those who have the main control over the occurrence of the results of specific crimes could also be able to become the principal. Comparing the Chinese standards of classification according to function and role with the “conduct control theory” in the West, the modern theory of the Chinese criminal law is delighted to see that the two classifications of co-offender may reach the same conclusion. b) Accomplice An accomplice in the 1997 Criminal Law is one who “plays a secondary or supplementary role in a joint crime” (Article 27). In other words, accomplices can only be those who do not have major or significant control over the crime. Therefore, no matter it is the perpetrator directly committing an offence or the person using other person as instrument to commit the crime, as long as they do not play a major role in the joint crime and do not have the ability to initiate or stop the crime, they might be the accomplices. Of course, in the judicial practice, accomplices are usually those who do not directly commit the offences stipulated in the CCL.

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In terminology, the CCL does not use the concept of “help or assistance” in the criterion for accomplice, but rather the concept of “supplementary”. The term “supplementary” refers to the role while the “help” refers to the division of labour. The person who plays a supplementary role is often a helper in the commission of the crime, such as the persons who provide the means of crime, check the venue, help to destroy incriminating evidence, and so on. However, the helper is not necessary always to play only a supplementary role. In the case where the help provided plays the key role for committing a crime, then the function of such a help shall not be supplementary but rather a major one. More clearly speaking, a helper may also possibly be the principal in China. In the specific offences stipulated in the CCL, even certain acts of helping are stipulated as separated offences or shall be deemed as joint offence. For example, the offence of “helping to destroy or to falsify evidence” (Article 307 (2)) and the offence of “providing help in terrorist activities” (Article 120 A) are stipulated as such offences. These acts of helping shall no longer be treated as supplementary but the specific offence after the legislation. Other examples can be found in the offence of smuggling where those “who conspires with smugglers by supplying them with loans, funds, accounts, invoices, proofs, or such conveniences as transportation, safe-keeping, and mailing services” shall be regarded and punished as co-offender of smuggling (Article 156). The similar offence is the co-offender of the offence of insurance fraud when “appraisers, certifiers, and property valuers, who intentionally provide false evidence to help others to commit fraud” (Article 198). More examples could be seen in the provisions for joint offences in the offence of manufacture of drugs (Article 350) and the offence of embezzlement (Article 382). The provisions of the Chinese criminal law that distinguish between accomplices on the basis of function and role can also be easily explained by using the “conduct control theory”. c) Coerced Accomplices In addition to accomplice to a crime, Chinese criminal law also provides for a separate type of “coerced accomplice”. This type of co-offender was drawn from the specific experience in fighting crimes in China. It also includes the inheritance and adaptation of the provision that “those who were compelled to follow shall not be (punished)” in the Code of Tang and other legal traditions. The Chinese legislation has continued to improve its provisions on coerced accomplice. The 1979 Criminal Law defined coerced accomplice as “those who are coerced or induced to participate in a crime” (Article 25). Now, the conditions of “induced” were deleted in the revision of the 1997 Criminal Law and the “coerced accomplice” (Article 28) refers to the co-offender who was in a state of fear due to the mental coercion imposed on him by another person and was compelled to participate

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in the commission of the crime.61 This type of co-offender should not include the cases where he was induced to participate in the crime without knowing the nature of the act committed. By the criterion of a perpetrator, a coerced accomplice may be in the position of a perpetrator by directly committing a crime, however, he does not have a strong will to commit the crime and cannot cause serious harm. In contrast to the Western theory, the CCL does not provide “duress or coercion” as the specific defense, but directly in the special type of co-offender. d) Instigator In its original sense, an instigator is a person who, by means of advice, persuasion or threat, causes another person to commit a crime. If a person instigates first and then participates in the commission of that offence, he shall be treated as a perpetrator. The reason why an instigator shall be stipulated as a separate type of co-offender is that he does not commit the crime personally but shall be held criminally responsible for the crime committed by the person he instigates. The ancient Chinese rules and descriptions of the “offender who creates the idea” are highly similar to the Western theory of instigation or causing. Therefore, the modern Chinese criminal law theory readily accepts the Western theory that the instigator is the one who, by showing the instigated a criminal idea, instigates, drives or causes the instigated to the commission of a crime. The role played by the instigator in a joint crime may vary from case to case. In many cases, the instigator plays a primary role, even planning, directing, organizing and leading the entire crime. However, it may also play a secondary role, such as encouraging or mentally assisting the perpetrator to make up his mind when he was hesitated. Therefore, the 1997 Criminal Law provides that “one who instigates others to commit a crime shall be punished according to the role he plays in the joint crime” (Article 29). In other words, he is a principal when he plays a major role and an accomplice when he plays a minor role. The age for criminal responsibility in China is generally 16 years and the persons under 12 and 14 years can only constitute certain specific crimes respectively. An instigator who instigates a minor under the criminal age shall be punished as the perpetrator himself. The instigator as a co-offender is not an independent crime in itself, although the instigator shall also be criminally liable for an attempt when the instigated person does not commit the crime instigated. So, theoretically, the instigation could only be constituted by specific conduct and intent and shall be done against a specific person. Incitement in front of an unspecified majority of persons shall constitute the specific offences of sedition, when the CCL has so provided. There are some such offences as the sedition to ethnic hatred or ethnic discrimination (Article 249) and the 61 Hu/Lang (eds.), Explanation of the Criminal Law of the People’s Republic of China, p. 34.

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offence of sedition to violence against the application of law (Article 278). The instigation must have a defined content of an offence stipulated in the CCL. If the instigated person commits an offence that is not instigated by the instigator, this is known as “conduct-beyond-limit” and the instigator shall not be responsible for the offence other than that which he instigated. Indeed, certain acts of specific instigation have been stipulated as separated offences in the Criminal Law, for example, the offence of instigating armed rebellion or armed riot (Article 104) and the offence of teaching criminal methods (Article 295). Those who commit these special offences by instigating shall no longer be treated as instigators in a joint offence, but should be convicted and sentenced separately in accordance with those special provisions.

3. Punishment Standards of Various Co-Offenders The classification of the joint offenders is mainly on the basis of its own practical experience. The current provisions of the CCL are the outcome of adhering to the Nullum Crimen Principle but also reflect the spirits of the criminal policy of differentiated treatment. The treatment and punishment of joint offenders need considering not only the seriousness of the crime from the perspective of punishment, but also the situation of repentance and possibility of reform from the perspective of rehabilitation. For this reason, the standards of punishment for various joint offenders have been constantly improved in the CCL. In the case of the principal offender, the 1979 Criminal Law provided that: “A principal criminal shall be given a heavier punishment unless otherwise stipulated in this Law” (Article 23 (2)). In that time, the principal offender was stipulated as an aggravating circumstance. In the 1997 Criminal Law, the phrase of “aggravating punishment” for the principal offender was deleted (Article 26). The principal offenders are distinguished between “the ringleader who organize or lead a criminal group” and other principal. The ringleader shall be punished on the basis of all the crimes committed by the whole criminal group. The other principal shall be punished only upon all the crimes in which he participated or organized or directed. The current regulation shall be even more strictly in conformity with the requirements of the Nullum Crimen Principle. For the offences which a separate range of punishments has been provided in the CCL for the ringleaders and the others in the criminal groups or the crowd crimes, the punishment shall be given within the corresponding statutory range to different offences committed by the different offenders. The principle of punishment prescribed for accomplices has undergone long and complex changes. 1979 Criminal Law provides that “an accomplice shall in comparison with a principal be given a lighter or mitigated punishment or be exempted from punishment”. In 1997 Criminal Law, the provision that an accomplice “shall” be punished less severely remains unchanged on the one hand, following the traditional rationale that an accomplice is of less serious guilt than a principal. On the other hand,

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the phrase of “in comparison with a principal” was deleted. It means that the less severe punishment to an accomplice should be calculated on the basis of the sentence that should be imposed to the criminal conduct the principal committed itself, rather than on the sentence that may be increased or reduced for the principal due to the effects of surrender or recidivism, and others. For the coerced accomplice, the 1997 Criminal Code provides that “one who is coerced to participate in a crime shall, according to the circumstances of his crime, be given a mitigated punishment or be exempted from punishment” Article 28 . In line with the Western theory, coercion is not a defense for absolutely excluding criminal responsibility.62 The principle of punishment for coerced accomplice in China is consistent with that of necessity in the West, in which a coerced accomplice can only be exempted from punishment when the offender’s own life or significant personal rights are seriously threatened, and when his act does not “cause undue damage beyond the necessary limit”, “otherwise, the punishment should be mitigated in accordance with the circumstances of the offence” (Article 21). For the instigator, apart from the fact that he should be punished according to his role in the joint crime, the main provisions of the CCL are that one who instigates a person under the age of eighteen to commit a crime shall be given a heavier punishment, and if the instigated person does not commit the instigated crime, the instigator may be given a lighter or mitigated punishment. This is for the purpose to protect juveniles and is also in line with the principle of dealing with attempted crimes. The provisions of China’s Criminal Law on the classification of joint offenders are in line with the Nullum Crimen Principle, in conformity with China’s historical tradition and social understanding, and in accordance with the Chinese successful criminal justice experience.

IV. Summary Joint crime in the Chinese criminal law today is a modernized concept. There is no obstacle for Chinese scholars to talk to the West from China’s perspective of view. The provisions of the CCL can be explained no matter by the theory of “perpetratorparticipant” in the Civil Law System, the theory of “principal-accessory” in the Common Law System, or even the theory of “joint crime” in Russia. But perhaps, talking to China from a Western perspective of view, people might see some characteristics of China: The definition of “joint crime” stipulated in the GP of the CCL could not be found in the West, the classification of “principal offender” and the standards for bearing criminal responsibility are different from those in the West, the provisions on “coerced accomplice” are different and the principle of “helper or abettor” are also different. However, in terms of basic principles, the theories followed by China and the West on Joint Crime are the same: We all adhere to the Principle of 62

See: Dressler, Understanding Criminal Law, p. 297.

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Nullum Crimen and Nulla Poena Sine Lege,63 adhere to the principle of bearing responsibility solely for one’s own crime and the policy of differentiated treatment for different joint offenders. This uniformity in principle and many differences in details seem to be a common phenomenon in the development of criminal law in the modern world. From a historical point of view, it is even inevitable. Joint crime is a criminal phenomenon to be dealt with by the criminal law of all countries in the world. It has been paid special attention since ancient times, because joint crime is more harmful than the crime committed by an individual person. In the modern criminal law, which follows the Nullum Crimen Principle, joint crime need stipulating special provisions. For example, joint crime should be regarded as a more serious criminal circumstance, the criminal responsibility of those who did not commit the crime should be specified, and the responsibility of aiding and abetting acts should be stipulated. These common approaches make it possible for the nations of the world to agree in principle on joint crimes. However, historical development has its own laws, and the imbalance of historical, cultural, social and economic development among countries in the world determines the differences that will be reflected in the implementation of various principles in different parts of the world. In the CCL, the more special points can be seen are the types of joint crime, the types of principal offender, the standard of accomplice, the concept of coerced accomplice, the responsibility of attempted instigation and instigating minors. In comparative studies, it is of great significance to recognize the principles commonly followed and the differences in implementing principles. Principles represent common will and common understanding. The differences represent the special circumstances that need dealing with at different times and places in the realization of these principles. Following these principles, the research of joint crime in different countries and different regions might have a common basis; understanding the differences could also enable the studies of joint crime in different countries and regions to look back on their past and conceive their approaches for further development. Academically speaking, the judicial practice in different countries under the perspective of comparative law not only shows the rich and colorful performance of the law in the historical development, but also inspires the basic trend of the legal development in the future. The author hopes that the characteristics of Chinese criminal law on joint crime presented in this paper could also help foreign counterparts to see the historical, social, cultural and academic progress demonstrated in the modernization process of Chinese law.

63 For the Chinese understanding on the Nullum Crimen Principle, see: Wang, in: Jeßberger/Vormbaum/Burghardt (eds.), Strafrecht und Systemunrecht – Festschrift für Gerhard Werle zum 70. Geburtstag, pp. 363 – 372.

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Bibliography Ban, Gu, [Han]/Yan, Shigu [Tang], annot.: The Book of Han, Beijing 2019. Cai, Shuheng: A History of Chinese Criminal Law, Guangxi 1983. Cao, Zidan/Zhang, Guangxian/Ma, Caixiu/Wang, Yangyi: A Scientific History of Soviet Criminal Law, Beijing 1984. Changsun, Wuji [Tang] et al. (eds.): The Code of Tang, Beijing 1983. Dressler, Joshua: Understanding Criminal Law, 6th edition, USA 2012. Dong, Jianzhi: (By Vernacularized Notes) A Detailed Explanation of the Criminal Law of the Republic of China, V. 1 & 2, Shanghai 1929. Editorial Committee of the Peking University Encyclopedia of Law, Peking University Encyclopedia of Law: History of Chinese Legal Thoughts – History of Chinese Legal System – History of Foreign Legal Thoughts – History of Foreign Legal System, Beijing 2000. Editorial Department of Mass Publishing House: Chinese Criminal Law Records in Ancient Dynasties, Beijing 1988. Editorial Group of The History of the Chinese Legal System in the Law Textbook Section, The History of the Chinese Legal System, Beijing 1982. Fletcher, George P., Wang, Shizhou, leading translator and proofreader, and Cai, Aihui et al., transl.: Basic Concepts of Criminal Law, Beijing 2004. Gao, Chao/Ma, Jianshi (eds.): The Annotated Translation of Chinese Criminal Law Records in Ancient Dynasties, Jilin 1994. Gao, Mingxuan: On the Reasonableness of the Four Elements of Criminal Constitution Theory and the Adherence to the Scientific System of Chinese Criminal Law, China Legal Science No. 2, Beijing 2009, pp. 5 – 11. Gao, Mingxuan: The Birth and Development of the Criminal Law of the People’s Republic of China, Beijing 2012. Gao, Mingxuan/Zhao, Bingzhi (eds.): Selected Documents on Chinese Criminal Law Legislation, Beijing 2007. Guo, Rencheng: The Complete Collection of the Modern and Ancient Texts of the Shang Shu, Hunan 2006. Heng, Kuan [Han]/Wang, Liqi: The Collation and Annotation of the Commentary on Salt and Iron, Shanghai 1958. Hu, Kangsheng/Lang, Sheng (eds.): Explanation of the Criminal Law of the People’s Republic of China, 3rd edition, Beijing 2006. Jescheck, Hans-Heinrich/Weigend, Thomas, Xu, Jiusheng, transl.: Textbook of German Criminal Law (General Part), Beijing 2001. Kuznetsova, þ.E./Jazhikova, I.=. (eds.) Huang, Daoxiu, transl.: Russian Textbook of Criminal Law (General Part), Vol. I – Theory of Crime, Beijing 2002. LaFave, Wayne R.: Criminal Law, 4th edition, USA 2003. Qin, Ruijie (ed.): The New Criminal Law Explained, Shanghai 1911.

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Roxin, Claus: Strafrecht Allgemeiner Teil, Bd. II, Munich 2003. Roxin, Claus, Wang, Shizhou, leading translator and proofreader, and Wang, Kai et al., transl.: Strafrecht Allgemeiner Teil, Bd. II, Beijing 2013. The Working Group for Bamboo Sketches from the Qin Tomb at Shui-Hu-Di (ed.): The Bamboo Sketches from the Qin Tomb at Shui-Hu-Di, Beijing 1978. Wang, Hanbin: Explanation on the Draft of the Criminal Law of the People’s Republic of China (Revised) at the Fifth Session of the Eighth National People’s Congress, 06. 03. 1997. Wang, Shizhou: A Reflection on Crimes Against National Security in Chinese Criminal Law, UMKC Law Review Vol. 82 No. 4, Kansas City 2014, pp. 1029 – 1053. Wang, Shizhou: Modern Criminal Law (General Part), 2nd edition., Beijing 2018. Wang, Shizhou: On Doctrinal Basis of Chinese Unit Crime, China Legal Science (English Version), Vol. 4 No. 1, 2016. Wang, Shizhou: Understanding the Principle of Nullum Crimen and Nulla Poena Sine Lege Under International Criminal Law, in: Jeßberger, Florian/Vormbaum, Moritz/Burghardt, Boris (eds.), Strafrecht und Systemunrecht – Festschrift für Gerhard Werle zum 70. Geburtstag, Tübingen 2022, pp. 363 – 372. Wang, Yongxing: The Preface to the Punctuated and Collated Version of the Code of Tangs, in: [Tang], Changsun, Wuji et al. (eds.), The Code of Tang, Beijing 1983. Xu, Jialu (Editor of the Sub-History), (The Complete Translation of the Twenty-Four Histories) Hou Han Shu (all three volumes), Beijing 2004. Yang, Chunxi/Gan, Yupei/Yang, Dunxian/Yang, Diansheng et al.: General Part of Criminal Law, Beijing 1981. Zeng, Xianyi (ed.): The History of the Chinese Legal System, Beijing 2000. Zhang, Guohua/Rao, Xinxian (eds.): Outline of the History of Chinese Legal Thoughts (V. I), Gansu 1984. Zhao, Bingzhi/Chen, Zhijun (eds.): A Compilation of Modern Chinese Criminal Law Legislation, Beijing 2016. Zhao, Kunbo (ed.): The History of the Chinese Legal System, Beijing 2002. Zheng, Xunzuo/Jin, Yong (transl. & annot.): A Translation and Annotation on Mencius, Shandong 2009. Zheng, Zilai/Xu, Lijun: Selected Materials of the Wuhan Provisional Joint Meetings (Dec. 13, 1926 – Feb. 21, 1927), Wuhan 2004.

Confronting the Past Through Criminal Courts Critical Reflections on the Colombian Case By John Zuluaga*

I. Introduction As a result of the internal armed conflict, the Colombian population suffered many forms of victimisation. The most comprehensive report on the crimes and victimization during the armed conflict was carried out by the Commission for Clarification of the Truth, Coexistence and Non-Repetition (in Spanish: Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición, also known as Comisión de la Verdad).1 According to that report, an estimated 8,775,884 people were victims of Colombia’s armed conflict between 1985 and 2018. Most of them were civilians.2 The sheer scale of the violence in Colombia, and the high number of victims it left, have been confronted in many ways, including by means of the criminal law.

* Prof. Dr. iur. John Zuluaga and Master of Laws (LL.M., at the Georg-August-Universität Göttingen, Germany). Fellow of the German-Latin American International Society of Criminal Sciences (SIGLA-CP). The author is currently Associate Professor at the Sergio Arboleda University (Bogotá, Colombia). Homepage: www.john-zuluaga.de. The author wishes to thank Sophie Rähme (MPhil./M.Poli.Sci., Goethe University, Frankfurt am Main) for her valuable comments. 1 The Commission (in Spanish: CEV), together with the Special Jurisdiction for Peace (in Spanish: JEP) and the Human Rights Violations Data Analysis Group (HRDAG), carried out a project on human rights violations that integrated a large number of databases. The statistical work was specifically oriented towards the number of victims in the context of homicides, enforced disappearances, kidnapping, recruitment and forced displacement. One of the most important previous statistical works was carried out by the Colombian National Centre of Historical Memory (Centro Nacional de Memoria Histórica de Colombia -CNMH-), whose statistics can be found in the report !basta ya!. Cf. Informe general, Grupo de Memoria Histórica. ¡Basta Ya! Colombia: Memorias De Guerra y Dignidad. Bogotá, CNMH, 2013, p. 31 et seq. 2 CEV/JEP/HRDAG, Informe metodológico del proyecto conjunto JEP-CEV-HRDAG de integración de datos y estimación estadística, Bogotá, 2. 8. 2022, p. 9 et seq. Among other dramatic statistics is that of displacement: more than seven million civilians were forced to flee their homes between 1985 and 2019, generating the second largest internally displaced population in the world (cf. p. 12).

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In this context, not only forms of criminal law of the enemy3 have been put into operation, but also alternative models of punishment aimed at promoting the demobilisation and disarmament of combatants4 have been established. The latter has been called transitional justice, despite its close link to criminal justice and to the criminal legal policies upon which it was based. The Colombian case exemplifies an international trend that focuses its expectations on criminal courts to do an accounting of the historical truth of episodes of mass violence, thus contributing to processing and overcoming them.5 The confrontation with massive human rights violations through the use of the criminal law was one of the main reasons for establishing both the Nuremberg trials of Nazi war criminals, as well as subsequent ad hoc tribunals.6 In order to make these interactions between criminal law and Colombian transitional justice visible, four aspects are analysed in this paper. First, an account is given of the background of the criminal procedural rules that inspired the Colombian transitional justice model. Second, the paper describes some components that may confirm/illustrate the interaction between criminal law and transitional justice. Third, an attempt is made to establish why there are punitive tendencies in this model of transitional justice. Lastly, it analyses the outcomes of this model in achieving the purposes that motivated the establishment of transitional justice in Colombia.

II. The Procedural Forms of Colombia’s Transitional Justice System Transitional justice in Colombia was not created after the end of the internal armed conflict. Rather, it arose simultaneously with other criminal trials for crimes committed during the war.7 The judicial procedures that prior to or parallel to the transitional justice mechanisms that were employed for the investigation and prosecution of crimes committed in the context of the armed conflict corresponded to the ordinary criminal justice mechanisms in use. Thus, transitional justice in Colombia drew significant inspiration from traditional elements of criminal procedure. Rooting transitional justice in the ordinary mechanisms of criminal procedure contributed in a spe-

3 Cf. González-Zapata, in: Calderón/Luis (eds.), El estado actual de las ciencias penales. Homenaje a la Facultad de Derecho y Ciencias Políticas de la Universidad de Antioquia 1827 – 2007, pp. 133 – 152. 4 Zuluaga, in: Ambos/Cortés-Rodas/Zuluaga (eds.), Justicia transicional y derecho penal internacional, pp. 201 – 236. 5 Cf. in extenso Sander, Doing Justice to History: Confronting the Past in International Criminal Courts. 6 Cf. in extenso Hafetz, Punishing atrocities through a fair trial: international criminal law from Nuremberg to the age of global terrorism. 7 Cf. Botero-Marino/Saffon-Sanín/Uprimny-Yepes/Restrepo Saldarriaga, ¿Justicia Transicional sin transición? Verdad, justicia y reparación para Colombia, pp. 11 – 14.

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cial way to the strengthening of symbols typically characteristic of punitive power within transitional justice.8 One of the most important expressions of the intersection of ordinary criminal justice and transitional justice in Colombia is the so-called Justice and Peace Law (JPL or Law 975 of 2005. In Spanish: Ley de Justicia y Paz). This law was enacted to give concrete expression to Colombia’s duty to prosecute international crimes to which the Colombian State was obliged as a State Party to the Rome Statute.9 The procedural rules that were put in place by this statute are a faithful reflection of the socalled accusatorial criminal procedure ([i. e. an adversarial procedure based to a large extent on the Code of Criminal Procedure of the Commonwealth of Puerto Rico]) developed in the New Code of Criminal Procedure (Law 906) of 2004. The consequences of this duplication of procedural mechanisms for the prosecution of crimes within the framework of the armed conflict generated a high level of regulatory inflation (overregulation), due to the large number of regulatory provisions contained in JPL. Other consequences included the ineffectiveness of judicial recourse for the investigation of crimes committed by members of armed groups, limited participation of victims in phases of the process and multiple difficulties in constructing a comprehensive and systematic truth about the armed conflict.10 New judicial mechanisms attempted to overcome these qualitative and quantitative deficits in the processes implemented under JPL. Initially, adjustments were made to JPL, primarily through the so-called Legal Framework for Peace (Legislative Act 01 of 31 July 2012 or Marco Jurídico para la Paz), which amended transitional articles 66 and 67 of the Colombian Constitution.11 Subsequently, the Special Jurisdiction for Peace -SJP- (In Spanish: Jurisdicción Especial para la Paz -JEP-) was introduced as part of a comprehensive system of transitional justice. The SJP represented an additional step toward judicial mechanisms in criminal procedure that were progressively introduced to resolve Colombia’s armed conflict. As it was a mechanism that functioned simultaneously with the ordinary criminal court jurisdiction and the JPL, the SJP has not been seen as a real attempt to overcome the problems of the

8

On this subject, cf. Zuluaga, Símbolos punitivos y transición política en Colombia, ambitojuridico.com, available at: https://www.ambitojuridico.com/noticias/columnista-online/con stitucional-y-derechos-humanos/simbolos-punitivos-y-transicion (accessed at 21. 3. 2023). 9 Cf. Bueno/Ruiz-Rosas, in: Rothe/Meernik/Ingadottir (eds.), The Realities of the International Criminal Justice System, p. 219 et seq.; Lyons, in: Lyons/Reed (eds.), Contested transitions: dilemmas of transitional justice in Colombia and comparative experience, pp. 15 – 27. 10 Cf. Zuluaga, in: Molina-López (ed.), Lecciones de Derecho Penal, Procedimiento Penal y Política criminal, pp. 571 – 634. 11 Cf. the treatment in extenso by Eckhardt, Der Marco jurídico para la paz und die Rolle der transitional justice in Kolumbien.

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judicial framework of the transitional justice system. Rather it is seen as a third attempt at generating criminal justice.12 The different levels of evolution of transitional justice in Colombia show judicial development that combines strict procedural rules with alternative sanctions for combatants. Moreover, the combination of rigid procedural rules and flexible judicial outcomes made the Colombian model a paradoxical device. On the one hand, it promised to prosecute all crimes related to the conflict but sets rigid procedural rules for the handling of such cases. On the other hand, it was conceived as part of a comprehensive transitional justice system but excluded multiple actors and crimes on the basis of case selection and prioritisation rules.13

III. The Intersection Between Criminal Law and Transitional Justice Within the framework of Colombia’s transitional justice schemes, the main judicial mechanism is currently the SJP. The normative basis for this mechanism goes far beyond ordinary Colombian criminal law. With the implementation of the Peace Agreement14, by which the SJP15 was created, different normative frameworks were contemplated as points of reference to support the work of this jurisdiction. This normative basis is relevant because it was the basis for the legal charges of suspected crimes that occurred during the armed conflict. Among the legal provisions that delimit the normative framework of SJP, particular mention should be made of Transitory Article 5 (6) of the Political Constitution of Colombia (CPC), which was introduced by Legislative Act 01 of 2017. In this section, reference is made to the bodies of law on which the judicial work of the SJP is based. This includes the Colombian Criminal Code (CC) but also International Human Rights Law (IHRL), International Humanitarian Law (IHL) and International

12

Zuluaga, Hacia una tercera generación de justicia transicional. De la Jurisdicción especial para la solución del conflicto armado en Colombia, En Letra: Derecho Penal, pp. 7 – 12. 13 Zuluaga, in: Ambos/Cortés-Rodas/Zuluaga (eds.), Justicia transicional y derecho penal internacional, p. 203. 14 This peace agreement was reached between the Colombian government and the guerrilla group Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC-EP). The Agreement is composed in 6 parts: 1. Towards a New Colombian Countryside: Comprehensive Rural Reform (pp. 10 – 33); 2. Political Participation: A democratic opportunity to build peace (pp. 34 – 56); 3. En of the Conflict (p. 57 – 103); 4. Solution to the Illicit Drugs Problem (pp. 104 – 131); 5. Agreement regarding the Victims of the Conflict: “Comprehensive System for Truth, Justice, Reparations and Non-Recurrence”, including the Special Jurisdiction for Peace; and Commitment to Human Rights (pp. 132 – 203); 6. Implementation, verification and public endorsement (pp. 204 – 231). An English version of the Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace is available at: https://www.peacea greements.org/viewmasterdocument/1845 (accessed: 21. 3. 2023). 15 Cf. Sedacca, Human Rights Law Review 19 (2019), pp. 315 – 345.

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Criminal Law (ICL). This reference was repeated in Article 23 of Law 1957 of 2019 (in Spanish: Ley Estatutaria de la JEP). In this way, the normative reference base is made up of transitory articles 5 and 22 of Legislative Act 01 of 2017, and article 23 of the Ley Estatutaria of the SJP. It is expressly stated in the SJP that international law (IHRL, IHL, ICL) will be applied as the legal framework of reference. This implies a broadening of the normative framework for investigating and prosecuting crimes committed during or in relation to the armed conflict. In addition, it may lead to charges against possible defendants being different from those previously made by judicial, administrative or disciplinary authorities.16 This concurrence of normative frameworks generates various questions that affect legal certainty. If criminal charges are based on the Colombian Criminal Code, or the norms contained in IHL, IHRL or ICL, applying the principle of favourability, for example, one of the questions to be resolved would be how to determine the law which would apply in respect of criminal liability of the perpetrator.17 First, this problem affects all criminal charges and issues except amnesty or pardon, which must be done mainly in accordance with the Rome Statute. Second, it also affects the parameters for reviewing judicial sentencing that has not been done by the SJP but are re-evaluated on appeal by this jurisdiction. This review can be carried out, for example, for those convicted as combatants under IHL, who can apply for a review of their convictions before the Appeals Section of the SJP.18 In addition to the above, another way of appreciating the strong inclination of the SJP towards the ordinary logic of criminal prosecution is the evaluation of the judicial procedures that are used by this jurisdiction. Particularly illustrative of this approach to criminal procedure is how judicial procedures have been configured within the SJP. The normative framework of SJP setting the basis for implementation at trial have the following characteristics: 1. Two types of procedures are foreseen: trials in which the defendants plead guilty (acknowledgement of truth and acknowledgement of responsibility), and trials where they do not plead guilty (absence of acknowledgment of truth and responsibility, cf. article 73, Law 1957 of 2019). 2. The main structure of SJP has two levels. The first tier consists of three Chambers of Justice (in Spanish: Salas de Justicia) and the second tier consists of four Chambers that make up the Peace Tribunal (in Spanish: Secciones del Tribunal

16 Cf. Osorio-Vásquez, in: Murillo-Granados/Tarapués-Sandino (eds.), Estudios sobre derecho penal, constitucional y transicional. Tomo II, pp. 101 – 152. 17 Cf. Ferdinandusse, Direct application of international criminal law in national courts, pp. 267 – 268. 18 See Osorio-Vásquez, in: Murillo-Granados/Tarapués-Sandino (eds.), Estudios sobre derecho penal, constitucional y transicional. Tomo II, pp. 101 – 152.

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para la Paz) (transitional article 7, Legislative Act 01 of 2017 and article 72, Law 1957 of 2019). 3. On the first level, there are the following Chambers: Chamber of Recognition of Truth and Responsibility and Determination of Facts and Conduct (in Spanish: Sala de Reconocimiento de Verdad y Responsabilidad y de Determinación de los Hechos y Conductas); Chamber of Amnesty and Pardon (in Spanish: Sala de Amnistía e Indulto); Chamber for the Definition of Legal Situations (in Spanish: Sala de Definición de Situaciones Jurídicas) (articles 79 – 84, Law 1957 of 2019). 4. The Peace Tribunal, at the second level, is the highest authority of the SJP. It is composed of four sections: Section of Cases of Acknowledgement of Truth and Responsibility; section in Cases of Absence of Acknowledgement of Truth and Responsibility; Revision section (in Spanish: sección de revision); and an Appeals Section (in Spanish: sección de apelación) (articles 90 bis 97, Law 1957 of 2019). 5. Additionally, the SJP has a prosecution unit called the Investigation and Indictment Unit (in Spanish: Unidad de Investigación y Acusación); and an Executive Secretariat (in Spanish: Secretaría Ejecutiva) (articles 86 – 89, Law 1957 of 2019). 6. Each of the courts of the SJP has its own procedural rules. These rules try to incorporate at a minimum the following principles: adversarial proceedings, due process, impartiality, public hearings, confronting witnesses (audi alterem partem), defence and second hearing. These regulations were set out in Law 1922 of 2018 and Law 1957 of 2019. 7. Judges of the Special Jurisdiction for Peace are subject to the same disciplinary regime as judges and magistrates of the ordinary jurisdiction (article 120, Law 1957 of 2019). 8. It is possible to file a writ of amparo (in Spanish: acción de tutela) against decisions of the SJP, which will be decided in the first instance by the Revision section, in the second instance by the Appeals Section and may exceptionally be reviewed by the Colombian Constitutional Court (articles 145 – 148, Law 1957 of 2019). In this way, both the normative basis of the SJP and the configuration of the judicial procedures show the close link between this judicial mechanism of transitional justice and the ordinary criminal justice system. In fact, the transitional justice model goes much further and includes international normative references for the investigation and prosecution of crimes that occurred during the armed conflict. This explains why the SJP is currently seen as a jurisdiction with judicial overload and anticipated inefficiency.

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IV. The Punitive Nature of Colombian Transitional Justice In addition to rigid procedural rules, it should be mentioned that the judicial mechanisms of transitional justice in Colombia have combined some elements of restorative justice with the application of criminal sanctions. The link between imprisonment, whether as an alternative sanction (as in the JPL) or with restorative conditions (as in the SJP), as a condition for the reintegration of combatants or reconciliation between victims and perpetrators, is a very important characteristic of judicial practices in Colombian transitional justice.19 Hence the profile of transitional justice in Colombia is judicial and bureaucratic and criminal law continues to be one of the main filters for understanding the armed conflict.20 The processing of violence left by the armed conflict through criminal law undoubtedly offers limited possibilities for the construction of memory, reparation of victims and non-repetition of violence. On the contrary, it could be said that a solution to armed conflict violence through criminal law promotes the rhetoric of the victors and deepens stigmatisation of the enemy.21 In other words, the criminal law reproduces in a certain way the punitive ideas that are inherent in war and do not ensure better conditions that guarantee non-repetition of violence. This orientation of the judicial mechanisms on which transitional justice is based in Colombia is counterproductive for the protection of human rights. On the one hand, neither ordinary criminal law nor the criminal law of the enemy is useful and legitimate in times of transition. It is undoubtedly a selective and unequal criminal law vis-à-vis combatants and victims.22 On the other hand, a focus on such judicial matters as the process of defining criminal liability ends up postponing, for example, the problems of social and economic justice.23 Moreover, the support of criminal procedural law during a political transition has paradoxical effects in relation to the mission of protecting the prosecuted, which is the main mission of criminal proceedings. This protective function is not conceivable in the sphere of transitional justice if one considers that this implies the disregard of multiple rights guarantees, especially the right against self-incrimination, the right to confront adverse witnesses or the right to a decision based exclusively on the evidence presented. The relaxation of these guarantees is a condition in transitional jus19 Regarding the SJP see Castro-Cuenca, in: Peters/Ambos (eds.), Transitional Justice in Colombia. The Special Jurisdiction for Peace, pp. 85 – 110. 20 Cf. Zuluaga, Revista Ecos 156 (2018) pp. 9 – 10. 21 Correa-Henao, in: Bernal-Pulido/Barbosa-Castillo/Ciro-Gómez (eds.), Justicia transicional: El caso de Colombia, pp. 25 – 172; Orozco-Abad, Justicia: el centro de los desacuerdos respecto del Acuerdo, available at: http://www.razonpublica.com/index.php/con flicto-drogas-y-paz-temas-30/9813-justicia-el-centro-de-los-desacuerdos-respecto-del-acuerdo. html (accessed at 21. 3. 2023). 22 González-Zapata, Estudios Políticos 31 (2007), pp. 23 – 42. 23 See in extenso Cortés-Rodas, Del arte de la paz: reflexiones filosóficas sobre justicia transicional.

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tice for access to the punitive benefits that motivate the intervention of combatants in the development of judicial mechanisms.24 It must also be said that reducing transitional justice to the logic of criminal proceedings reduces the right of confronting witnesses to a minimum. This reduction in confrontation takes place because confrontation is replaced by the confession of the person being prosecuted.

V. Colombian Transitional Justice: A Model for the Continuity of Criminal Justice Problems? The configuration of the transitional justice system using the logic of criminal trials raises profound questions about the purpose and possibilities of overcoming the violence linked to armed conflict. Several levels of impact should be differentiated here. First, the persistence of a certain optimism in criminal punishment to confront human rights violations ends up reinforcing a “pan-judicial illusion”. This illusion involves a “conception of law and criminal proceedings as both exclusive and exhaustive remedies for any infraction of the social order, as well as major crimes being linked to the endemic degeneration of social structures and the political system […]”.25 Second, it reinforces uncritical adherence to international punishment requirements and hinders any recognition that obligations to punish are not absolute.26 Punitive optimism, i. e. the belief that a society can be transformed through criminal law, avoids differentiating between transitional justice and ordinary criminal law. This reliance on punitive powers as a factor for fostering social change makes worse many shortcomings in conflict resolution of the criminal law, such as, for example its selective, discriminatory, unequal and highly instrumentalised character.27 The criminal trial as the core of transitional justice begins as an exceptional mechanism and ends up being normalized and regularized as a way of administering criminal justice.28 It is in this sense that transitional justice could be conceived of as a model for continuity.29 If one takes into account that violence in Colombia has multiple sources and 24

On the tensions between the rights of the prosecuted and victims see Baldosea-Perea, Derecho Penal y Criminología 38 (2017), pp. 151 – 177. 25 Ferrajoli, Derecho y Razón. Teoría del garantismo penal, p. 562 (“[…una] concepción del derecho y del proceso penal como remedios al mismo tiempo exclusivos y exhaustivos de cualquier infracción del orden social, de la gran criminalidad ligada a degeneraciones endémicas del tejido social y del sistema político […].”). 26 See Greco, in: Ambos/Cortés-Rodas/Zuluaga (eds.), Justicia transicional y derecho penal internacional, pp. 89 – 104. 27 González-Zapata, Estudios Políticos 31 (2007), p. 38. 28 Cf. Posner/Vermeule, Harvard Law Review 117 (2003), pp. 762 – 825. 29 Zuluaga, Derecho Público Integral. Diario Penal Nr. 23.

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interests in its production and reproduction,30 and then considers that a central aspect of the armed conflict was the persistence of different forms of illegal commerce and different local controls of political and social processes,31 then the insistence on judicial and penal devices does not represent an adequate approach to understanding and confronting these causes of violence.

VI. What Can Be Expected from Criminal Procedure in Times of Political Transition? An approach to the potential capacities of criminal procedural mechanisms within the framework of transitional justice should begin by recognizing some of its limitations. Regarding the material reality of crime, it is indisputable that criminal procedure is unable of attaining objective knowledge of the truth.32 This means that, confronted with object of knowledge (the crime), criminal procedure has a limited scope for the reconstruction of its historical reality. Cognitive restrictions on the investigation and prosecution of crimes are unavoidable for the criminal procedure of transitional justice.33 The crucial question to be resolved is how the recognition of criminal procedure as a limited and methodically controlled mechanism for the determination of procedural truth can be used to achieve the aims of transitional justice. However, a fair solution/ answer would require recognising that the criminal justice system has no real capacity to deal with all the crimes that occurred in the context of the armed conflict, nor to document what happened during the war, and define the construction of historical truth. The fact that not all crimes committed during the conflict can be investigated and prosecuted through criminal proceedings also means that transitional justice cannot aspire to be the formal and controlled processing of each of the crimes committed in the context of the violence of war under to the rules of due process. In order to achieve a judicial treatment of crimes that allows for an understanding of what happened during the armed conflict, it is necessary to distinguish between 30 The causes of the armed conflict include inequality, political exclusion, the absence of the state in many regions of the country, racism and multiple discrimination based on social class, region or way of thinking. See in extenso CEV, Hay futuro si hay verdad: Informe Final de la Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición. Tomo 3: No matarás: relato histórico del conflicto armado interno en Colombia. 31 Cf., among others: Alonso-Espinal/Vélez-Rendón, Estudios Políticos 13 (1998), p. 51; Duncan, Los señores de la guerra. De paramilitares, mafiosos y autodefensas en Colombia, p. 357. 32 Roxin/Schünemann, Strafverfahrensrecht: ein Studienbuch, § 1 recital 4 et seq.; Volk/ Engländer, Grundkurs StPO, § 3 recital 2; Kühne, Strafprozessrecht. Eine systematische Darstellung des deutschen und europäischen Strafverfahrensrecht, § 1 recital 1. 33 Kühne, Strafprozessrecht. Eine systematische Darstellung des deutschen und europäischen Strafverfahrensrecht, § 1 recital 1.

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criminal procedure and the comprehensive satisfaction of victims’ rights. The strong connection between the one and the other not only undermines the protective function of criminal proceedings, but also limits the fulfilment of victims’ rights. In the Colombian transitional justice model, extrajudicial mechanisms have played an insignificant role and, on many occasions, have been relegated as ancillary to the judicial components. For this reason, it is important to try to further empower alternatives to judicial proceedings in order to strengthen the participation of victims, which is sometimes neglected by the dynamics of transitional justice in Colombia.34 As the judicial component is not only methodologically limited, but also restrictive of victims’ rights, it is even more relevant to find means and procedures that effectively contribute to the satisfaction of victims’ rights. Today, more than ever, the Colombian transitional justice model must be re-invented as a forum of communication in which the public demands that victims can achieve a restorative and reconstructive dimension. Undoubtedly, this evaluative and reconstructive facet would also provide an important service in making visible those aspects of ordinary criminal law in which excesses of power have become standard practice. These practices have been standardised in Colombia through the limitation of the rights of the accused and relaxation of the right against self-incrimination. This broader approach would prevent criminal prosecution within transitional justice procedure from reproducing the problems of ordinary justice, i. e. the dilemmas of court incapacity to deal with all the cases, selectivity and various logistical and organisational problems. It is time to take seriously other communicative practices that are broader than criminal procedural devices, in which all those involved can participate effectively and which allow rights restricted by judicial formalities to be unbound.

VII. Conclusion Confrontation of the armed conflict in Colombia has been carried out predominantly through judicial mechanisms. Transitional justice has also attempted to combine rigid procedural forms with flexible judicial solutions for those participating in transitional justice procedures. This judicial logic has resulted in reinforcing an uncritical compliance with international demands for the punishment of certain crimes. It is fed by the belief that criminal law and criminal procedure are indispensable instruments for the resolution of armed conflict. However, expectations about the performance of criminal justice procedures within the framework of transitional justice must be realistic. This also means that it must be recognised that criminal procedure is only a limited and controlled device, which 34 The latter, for example, was particularly evident in the Interpretative Judgement 3 (in Spanish: Sentencia Interpretativa -SENIT- 3) of the SJP which limited the rights of victims to second hearings, confronting witnesses and to effective judicial remedies.

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does not have the capacity to produce objective knowledge of the truth. Moreover, criminal procedure does not have the capacity to act as a transformative justice system or to devise solutions to all the problems that are linked to the armed conflict in Colombia. Bibliography Alonso-Espinal, Manuel Alberto/Vélez-Rendón, Juan Carlos: Guerra, Soberanía y órdenes alternos, Estudios Políticos Vol. 13, 1998, pp. 41 – 71. Baldosea-Perea, Heydi Patricia: El esclarecimiento de la verdad, la confesión y el derecho de no autoincriminación y de guardar silencio en los contextos judiciales de transición. El caso de Justicia y Paz en Colombia’, Derecho Penal y Criminología Vol. 38 No. 104, 2017, pp. 151 – 177. Botero-Marino, Catalina/Saffon-Sanín, María Paula/Uprimny-Yepes, Rodrigo/Restrepo-Saldarriaga, Esteban: ¿Justicia Transicional sin transición? Verdad, justicia y reparación para Colombia, Bogotá 2006. Bueno, Isabella/Ruiz-Rosas, Andrea: Which approach to justice in Colombia under the era of the ICC, in: Rothe, Dawn/Meernik, James David/Ingadottir, Thordis (eds.), The Realities of the International Criminal Justice System, Leiden 2013, pp. 211 – 247. Castro-Cuenca, Carlos Guillermo: Combining the Purposes of Criminal Law and Transitional Justice in the Special Jurisdiction for Peace, in: Peters, Stefan/Ambos, Kai (eds.), Transitional Justice in Colombia. The Special Jurisdiction for Peace, Baden-Baden 2022, pp. 85 – 110. Centro Nacional de Memoria Histórica de Colombia (CNMH): Informe general, Grupo de Memoria Histórica. ¡Basta Ya! Colombia: Memorias De Guerra y Dignidad, Bogotá, CNMH, 2013. CEV/JEP/HRDAG: Informe metodológico del proyecto conjunto JEP-CEV-HRDAG de integración de datos y estimación estadística, Bogotá, 2 August 2022. Comisión para el Esclarecimiento de la Violencia (CEV): Hay futuro si hay verdad: Informe Final de la Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición. Tomo 3: No matarás: relato histórico del conflicto armado interno en Colombia, Bogotá, Comisión de la Verdad, 2022. Correa-Henao, Magdalena: Justicia transicional en Colombia: balance y desafíos constitucionales, in: Bernal-Pulido, Carlos/Barbosa Castillo, Gerardo/Ciro-Gómez, Andrés Rolando (eds.), Justicia transicional: El caso de Colombia, Bogotá 2016, pp. 25 – 172. Cortés-Rodas, Francisco: Del arte de la paz: reflexiones filosóficas sobre justicia transicional, Bogotá 2020. Duncan, Gustavo: Los señores de la guerra. De paramilitares, mafiosos y autodefensas en Colombia, Bogotá 2006. Eckhardt, Niklas: Der Marco jurídico para la paz und die Rolle der transitional justice in Kolumbien, Tübingen 2020. Ferdinandusse, Ward N.: Direct application of international criminal law in national courts, The Hague 2006, pp. 267 – 268.

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Ferrajoli, Luigi: Derecho y Razón. Teoría del garantismo penal, Madrid 1995. González-Zapata, Julio: La justicia transicional o la relegitimación del derecho penal, Estudios Políticos Vol. 31, 2007, pp. 23 – 42. González-Zapata, Julio: La política criminal en Colombia o cómo se construye un enemigo, in: Calderón, Calle/Luis, Armando (eds.), El estado actual de las ciencias penales. Homenaje a la Facultad de Derecho y Ciencias Políticas de la Universidad de Antioquia 1827 – 2007, Medellín 2009, pp. 133 – 152. Greco, Luis: Por que inexistem deberes absolutos de punir, in: Ambos, Kai/Cortés-Rodas, Francisco/Zuluaga, John (eds.), Justicia transicional y derecho penal internacional, Bogotá 2018, pp. 89 – 104. Hafetz, Jonathan: Punishing atrocities through a fair trial: international criminal law from Nuremberg to the age of global terrorism, Cambridge 2018. Kühne, Hans-Heiner: Strafprozessrecht. Eine systematische Darstellung des deutschen und europäischen Strafverfahrensrecht, 8th edition, Heidelberg 2010. Lyons, Amanda: For a Just Transition in Colombia, in: Lyons, Amanda/Reed, Michael (eds.), Contested transitions: dilemmas of transitional justice in Colombia and comparative experience, Bogotá 2010, pp. 15 – 27. Orozco-Abad, Iván: Justicia: el centro de los desacuerdos respecto del Acuerdo, Razón Pública, 23. 10. 2016. Available at: http://www.razonpublica.com/index.php/conflicto-drogas-y-paztemas-30/9813-justicia-el-centro-de-los-desacuerdos-respecto-del-acuerdo.html (accessed at 21. 03. 2023). Osorio-Vásquez, Camilo: Variación de la calificación jurídica como causal de revisión inédita en el contexto de la justicia transicional colombiana, in: Murillo-Granados, Adolfo/TarapuésSandino, Diego Fernando (eds.), Estudios sobre derecho penal, constitucional y transicional. Tomo II, Cali 2020, pp. 101 – 152. Posner, Eric A./Vermeule, Adrian: Transitional justice as ordinary justice, Harvard Law Review Vol. 117, 2003, pp. 762 – 825. Roxin, Claus/Schünemann, Bernd: Strafverfahrensrecht: ein Studienbuch, 28th edition, Munich 2014. Sander, Barrie: Doing Justice to History: Confronting the Past in International Criminal Courts, Oxford 2021. Sedacca, Natalie: The ‘turn’ to Criminal Justice in Human Rights Law: An Analysis in the Context of the 2016 Colombian Peace Agreement, Human Rights Law Review Vol. 19, 2019, pp. 315 – 345. Volk, Klaus/Engländer, Armin: Grundkurs StPO, 8th edition, Munich 2013. Zuluaga, John: Acerca del procedimiento de la Ley 975 de 2005 o de ‘justicia y paz’, in: Molina López, Ricardo (ed.), Lecciones de Derecho Penal, Procedimiento Penal y Política criminal, Dike-Universidad Pontificia Bolivariana (Libro homenaje a la Facultad de Derecho de la Universidad Pontificia Bolivariana en su 758 aniversario), Medellín 2012, pp. 571 – 634. Zuluaga, John: Concepción y evolución de la justicia penal para la terminación del conflicto armado en Colombia, in: Ambos, Kai/Cortés-Rodas, Francisco/Zuluaga, John (eds.), Jusiticia transicional y derecho penal internacional, Bogotá 2018, pp. 201 – 236.

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Zuluaga, John: Hacia una tercera generación de justicia transicional. De la Jurisdicción especial para la solución del conflicto armado en Colombia, En Letra: Derecho Penal, II (3), 2016, pp. 7 – 12. Zuluaga, John: Justicia de transición en Colombia ¿un modelo para la continuidad?, Derecho Público Integral. Diario Penal Nr. 23, Argentina 13. 06. 2014. Zuluaga, John: ¿Qué le falta a la justicia transicional en Colombia?, Revista Ecos Vol. 156, 2018, pp. 9 – 10. Zuluaga, John: Símbolos punitivos y transición política en Colombia, ambitojuridico.com, 18. 09. 2018. Available at: https://www.ambitojuridico.com/noticias/columnista-online/consti tucional-y-derechos-humanos/simbolos-punitivos-y-transicion (accessed at 21. 03. 2023).

III. Corporate Law and Financial Regulation

Future Whistleblower Protection in Germany Caught Between the Conflicting Demands of Bureaucratic Burden and Law Enforcement By Winfried Bausback* One focus of Yoram Danzinger’s academic work is commercial and corporate law. However, he also deals with human rights issues, in particular freedom of expression as a central right in democratically organised states. As a member of the Israeli Supreme Court from 2007 to 2018, and still today, he stands for the consistent enforcement of the rule of law. The importance of the Israeli Supreme Court is also made clear today by current discussions on the reform of Israel’s judiciary. The issue of whistleblower protection lies at the intersection of business and corporate law, freedom of expression and law enforcement. The question of how whistleblowers in companies are to be protected is also present in Israel. For example, one of the functions of the State Controller and Ombudsman and his office, is explicitly described as including competences and possibilities for the protection of whistleblowers.1 The institution of the State Controller was created very early on by the Knesset2 and has been protected by a law with constitutional status since 1988.3 Israeli law also provides for norms in labour law that protect whistleblowers of corruption or other crimes from reprisals.4 The special protection of whistleblowers is not only a means of decentralised law enforcement by natural persons as subjects of the law, it is also a special manifestation of communicative freedom, which the jubilarian has consistently advocated in his home country. The design and implementation of communicative freedoms pose special challenges for any legal system organised * Prof. Dr. Winfried Bausback is former Bavarian State Minister of Justice, Member of Bavarian Parliament, University Professor (activity dormant during term mandate). 1 Cf. Protection of Whistleblowers in Israel, https://www.mevaker.gov.il/En/Ombudsman/ Guidecomplainant/Documents/Protection-of-Whistleblowers-Brochure.pdf (accessed at 29. 3. 2023). 2 Cf. the overview Political system of Israel at Wikipedia, https://de.wikipedia.org/wiki/ Politisches_System_Israels (accessed at 29. 3. 2023). 3 Basic Law – The State Comptroller, https://www.jewishvirtuallibrary.org/basic-law-thestate-comptroller (accessed at 29. 3. 2023). 4 ILO, National Labour Law Profile: The State of Israel, contributed by Judge Stephen J. Adler/assisted by Adv. Ariel Avgar, lists the Protection of Employees (Exposure of Offences of Unethical Conduct and Improper Administration) Law, https://www.ilo.org/ifpdial/informa tion-resources/national-labour-law-profiles/WCMS_158902/lang-en/index.htm (accessed at 31. 3. 2023).

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under the rule of law, because it is precisely these freedoms that, in their concrete implementation and application, must be brought into a reasonable balance with freedoms and other rights of comparable weight. The current struggle for the implementation of the EU Whistleblower Directive 2019/1937 (hereinafter the “Directive”) in Germany must also be understood against this background. This is not only about the enforcement of rights by natural persons in the legal system, but also about bringing other legal interests with comparable constitutional rank and weight into a reasonable balance.

I. Introduction: Whistleblower Protection as a Subject of EU and German Legislation The so-called Whistleblower Directive (Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law5) entered into force on 16 December 2019.6 However, the governing coalition at the time consisting of the CDU, CSU and SPD, was unable to agree on a bill to implement it into German law. This was mainly due to the fact that the SPD tried to extend the scope of application of the Whistleblower Protection Act far beyond the EU requirements, but the CDU/CSU refused to support the protection that went beyond the directive.7 In 2022, a draft bill8 was put forward by the Federal Ministry of Justice, in which the new governing coalition attempted again to implement the Whistleblower Directive. On 29 September 2022, the Bundestag (the lower chamber) debated the bill on implementation at its first reading.9 The very title of the bill (“Draft Law for Better Protection of Whistleblowers and for the Implementation of the Directive on the Protection of Persons Reporting Breaches of Union Law”) made it clear that the content of the legislation was intended to go well beyond the scope of the EU Directive. After the Bundestag adopted the bill at its second reading on 16 December 2022,10 the Bundesrat, as the upper chamber representing the Länder, did not give the necessary approval for the bill at its session of 10 February 2023.11 In the meantime, supplementary drafts had been introduced that attempted to balance content requiring consent and content not requiring consent in such a way that a so called rump law could be passed which did not require passage 5

OJ EU No. L 305, 26. 11. 2019, p. 17 On the content of the directive cf. Zimmer/Humphrey, BB 2022, p. 372 et seq. 7 Anger/Neuerer, Handelsblatt 2. 1. 2021, https://www.handelsblatt.com/26856784.html (accessed at 31. 3. 2023). 8 Draft Bill on the Whistleblower Protection Act (13. 4. 2022), https://www.bmj.de/Sha redDocs/Gesetzgebungsverfahren/Dokumente/RefE_Hinweisgeberschutz.pdf (accessed at 31. 3. 2023). 9 Deutscher Bundestag, Drs. 20/3442, 19. 9. 2022. 10 Deutscher Bundestag, Stenographischer Bericht 20/77, 16. 12. 2022, pp. 9203 – 9213. 11 Deutscher Bundesrat, Drs. 20/23, 10. 2. 2023. 6

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by the upper chamber representing the Länder.12 In March 2023, however, the second and third readings of these two split bills were again postponed in order to explore once more the possibilities of agreement between the governing traffic light coalition and the CDU/CSU parliamentary groups.13 The present draft bills in Germany for the protection of whistleblowers as well as the current debate, will be discussed in section 3 below. Before that, however, in section 2 below the essential contents of the Whistleblower Directive will be presented in detail (in order to specify the essential European legal point of reference for a German whistleblower protection law in more detail). Finally, in section 4 below follows a critical assessment of both the German and the EU legislation as regards a balancing of freedom with law enforcement as an instrument of security in the legal regulation of whistleblower protection.

II. Contents of the EU Whistleblower Directive The EU Whistleblower Directive serves to protect whistleblowers and provides Member States with concrete guidelines on how and to what extent whistleblowers must be protected from disadvantages. In addition, internal and external reporting channels must be created so that tips can be received and followed up. 1. Scope of Application Art. 4 of Directive 2019/1937 lists the various persons envisaged by the Directive as being within its scope of protection. The list is wide which shows an attempt to make the scope of protection as broad as possible. All persons are protected who have a “work-related connection” with the company and may have received information about violations through that professional context.14 In addition to traditional employees, temporary workers, board members, shareholders, but also interns, suppliers and subcontractors are covered. Protection covers persons having pre-contractual relationships with the company (cf. Art. 4(3)) as well as persons whose employment relationship has already ended (Art. 4(2)). Relatives and other third parties who 12 Deutscher Bundestag, Drs. 20/5992, 14. 3. 2023 and Deutscher Bundestag, Drs. 20/5991, 14. 3. 2023. 13 Cf. “Whistleblower müssen auf besseren Schutz warten”, Der Spiegel 30. 3. 2023, https:// www.spiegel.de/politik/deutschland/whistleblower-muessen-auf-besseren-schutz-warten-ab stimmung-im-bundestag-verschoben-a-789bd73d-7e78-480a-93f0-36313f0090fa (accessed at 31. 3. 2023); cf. also “Whistleblowing – Aus Eins mach Zwei? Neue Gesetzesentwürfe zum Hinweisgeberschutzgesetz erneut vertragt”, www.gleisslutz.com/de/aktuelles/know-how/ Whistleblowing.html (accessed at 31. 3. 2023). 14 Cf. the Explanatory Memorandum in the EU Commission’s Proposal for a Directive of 23. 4. 2018, COM (2018) 218 final, https://eur-lex.europa.eu/legal-content/DE/TXT/HTML/ ?uri=CELEX:52018PC0218 (accessed at 31. 3. 2023).

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are in contact with whistleblowers, who may suffer professional reprisals as a result of a whistleblowing, are also protected. The list of protected persons is a non-exhaustive list of protected groups of persons (cf. esp. Art. 4(1)).15 The material scope of protection is laid out in Art. 2(1). It covers infringements in a wide range of legal areas of EU law. These include public procurement, product and transport safety, consumer protection, data protection, environmental protection and many others. The European legal acts to which the protection of Directive 2019/1937 extends are exhaustively listed in an annex. This nine-page list has been criticised,16 not without good reason, as being complicated, but is obviously due to an effort to delimit the transposition obligation of the Member States as precisely as possible. However, Art. 2(2) of Directive 2019/1937 explicitly states that Member States may extend protection to areas of their national law. Since it is not easy in purely legal terms to transpose the unwieldy list of European legal acts into national legislation, this has resulted in a de facto tendency towards excessive transposition.17 The transposition period is regulated by Art. 26. In principle the Directive was required to be transposed into national law by 17 December 2021.18 A longer transposition deadline – until 17 December 2023 – was given for the transposition of the Directive for companies with less than 250 employees.19 This was intended to make it possible to accommodate small and medium-sized enterprises, for which the implementation of such a regulation would be associated with particular challenges in view of limited resources. In states like Germany, which have not transposed the regulations within the deadline provided into their national law, the question arises as to whether individual provisions of Directive 2019/1937 are directly applicable and, if so, which ones (for more detail, see section d). 2. Establishment of “Whistleblower Systems” – Internal and External Reporting Systems One of the two key protections for whistleblowers in Directive 2019/1937 is the obligation to establish and operate reporting systems.20 A distinction is made between internal company reporting channels and procedures21 and external company reporting channels and procedures to be established by the Member States.22 15 Concerning the personal scope of application, see also Zimmer/Humphrey, BB 2022, p. 372 et seq. 16 Cf. Zimmer/Humphrey, BB 2022, p. 372 et seq. 17 Ibid. 18 Art. 26(1), Directive (EU) 2019/1937. 19 Art. 26(2), Directive (EU) 2019/1937. 20 Art. 7 et seq., Directive (EU) 2019/1937. 21 Ibid. 22 Art. 10 et seq., Directive (EU) 2019/1937.

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The Directive does not contain a mandatory overriding requirement for internal reporting systems, but in Art. 10 provides for internal and external reporting channels for initial reports as alternatives. Art. 7(1) characterizes internal (initial) reporting as the rule, which is available in any case. Art. 7(2) also provides that Member States “shall endeavour to ensure” that internal reporting channels are preferred to external reporting channels if internal action can be taken effectively against the infringement and the whistleblower does not fear reprisals. But this includes a weakly specified obligation to promote internal reporting systems for the transposing Member States. The Directive does not contain any obligation to introduce the legal subsidiarity of the use of external reporting systems as opposed to internal ones upon transposition of the Directive.23 In the private sector, legal entities with 50 or more employees are obliged under Art. 8 (3) to set up internal reporting channels. In addition, legal entities with fewer than 250 employees may share resources, i. e. set up joint structures.24 In order to create internal reporting system, either structures can be created within the respective companies or external service providers can be engaged. The only important thing is meeting the content requirements for acknowledgement of receipt and feedback to the whistleblower.25 As with external whistleblowing channels, confidentiality requirements,26 data protection requirements27 and documentation requirements28 of the reports must also be met. The obligation to set up external reporting channels lies with the Member States. Whether anonymous reports are accepted and, if necessary, followed up on, is left to the regulatory competence of the Member States.29 Clearly subordinate to internal and external reporting systems is the means of disclosing a company’s misconduct to the press and the public. There, Directive 2019/ 1937 only recognises the need for protection of the whistleblower seeking publicity if an internal or external reporting system has previously been unsuccessful – i. e. without appropriate measures having been taken within the period provided for – or where one of the exceptional situations described in Art. 15(1)(b) exists30. This takes into account a concern of the EPP group in the European Parliament. Although the EPP Group was not able to push through a three-stage reporting system in the process of adopting the directive, it was successful in its efforts to regulate the provision of in-

23

Also critical of this were Zimmer/Humphrey, BB 2022, p. 372 et seq. Art. 8(6), Directive (EU) 2019/1937. 25 Art. 9, Directive (EU) 2019/1937. 26 Art. 16, Directive (EU) 2019/1937. 27 Art. 17, Directive (EU) 2019/1937. 28 Art. 18, Directive (EU) 2019/1937. 29 Art. 6(2), Directive (EU) 2019/1937. 30 Cf. on the reporting procedure and disclosure also Zimmer/Humphrey, BB 2022, p. 372 et seq. 24

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formation to the public as a last resort if an internal or external report had previously been unsuccessful.31 3. Protection Against Reprisals Protection against reprisals is – in addition to the whistleblowing systems to be created – the second protection mechanism with which the Directive protects whistleblowers. Reprisals by the company or employer following whistleblowing are prohibited and Member States are obliged to take all necessary measures to prohibit all forms of reprisals.32 What in detail constitutes reprisal is listed in the corresponding article, although not exhaustively, but at least with a variety of examples. Accordingly, for example, reprisals can be reflected in dismissal, suspension and comparable measures (lit. a), in a downgrading or denial of promotion (lit. b), in the denial of further training measure (lit. d) or in coercion, mobbing or exclusion (lit. g). A total of 15 sub-items (a – o) list more than 30 possible examples of reprisals. The Directive provides for various measures in order to protect whistleblowers from reprisals. These include support such as comprehensive information, assistance from competent authorities and legal aid,33 but also exemptions from criminal, civil, labour and copyright responsibilities.34 In the event that a whistleblower claims that a reprisal against him or her has occurred as a result of his or her report or disclosure, the Directive provides for a legal presumption that a reprisal took place, i. e. it reverses of the burden of proof to the detriment of the person imposing the measure.35 Furthermore, legal remedies and compensation for damages are to be ensured for persons affected by reprisals within the meaning of Art. 19. The confidentiality obligations of professionals with such duties are not affected by the Directive.36 37 4. Consequences of the Failure to Transpose the Directive within the Time Limit for the German Jurisdiction The deadline for transposition of the Directive expired on 17 December 2021. To date, Germany has not transposed the Directive into national law. In this respect, the question arises whether provisions of the Directive are already directly applicable. In addition to the lack of transposition, a prerequisite is that the provisions in question are unconditional in terms of content and sufficiently defined. However, a directive 31 According to an internal factsheet by Voss, MEP, as of 08. 04. 2019, which is available to the author. 32 Art. 19, Directive (EU) 2019/1937. 33 Art. 20, Directive (EU) 2019/1937. 34 Art. 21(2), (3) and (7), Directive (EU) 2019/1937. 35 Art. 21(5), Directive (EU) 2019/1937. 36 Art. 3(3) lit b, Directive (EU) 2019/1937. 37 Cf. also Zimmer/Humphrey, BB 2022, p. 372 et seq. (373).

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cannot lead to obligations being directly applicable to private individuals.38 For the private sector in Germany, however, it should be noted that in the employer/employee relationship an interpretation of general clauses such as § 241 (2) BGB and § 612a BGB in conformity with the Directive could exist. In this respect, there is a certain degree of legal uncertainty for private companies.

III. Current Draft Bills in German Whistleblower Protection Law – Which Exceed EU Implementation Requirements It is true that the Bundestag approved the draft of a whistleblower protection law of the governing coalition at its 2nd and 3rd readings on 16 December 2022. However, due to the lack of the necessary approval of the Bundesrat,39 there is still no effective German implementation. As a result, the governing coalition has presented a draft split into two bills, attempting thereby to separate content that requires approval by the Bundesrat from content that does not. To this end, however, the second and third readings of the Bund of both were postponed in order to explore possibilities of agreement without the split. However, both bills and the debate in the Bundestag and Bundesrat show tendencies and approaches that will shape a future German whistleblower protection law. 1. Draft Bill of the Federal Government in the Version of the Resolution of the German Bundestag in 2nd and 3rd Reading on 16 December 202240 a) Scope of Application The draft bill as passed by the German Bundestag in its third reading on 16 December 2022 is significantly broader in its scope of application than EU Directive 2019/1937, whereby, the German bill only differs in wording, but not in substance in respect of the scope of application to persons and time frame. Regarding persons covered, the wording of the draft bill is less differentiated than the EU Directive.41 Who is covered by the term “employee” is defined in § 3 (8) of the draft bill, whereby the personal scope of application in § 1 is not narrowed to this term. In contrast to the EU Directive, there is no explicit reference to the private and public sectors included 38

Cf. Zimmer/Humphrey, BB 2022, p. 372 et seq. (376) with further references. As of April 2023. 40 Deutscher Bundestag, Drs. 20/3442, p. 7 et seq. 41 § 1 of the draft bill reads: “Objective and personal scope of application (1) This law regulates the protection of natural persons who have obtained information about violations in connection with their professional activities or in advance of professional activities and who report or disclose such information to the reporting bodies provided for under this law (whistleblowing persons). (2) In addition, protection shall be afforded to persons who are the subject of a report or disclosure and other persons who are affected by a report or disclosure.” 39

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in the personal scope of application, nor is there an exemplary naming of affected groups of persons who are covered as whistleblowers in the professional environment. § 1 of the draft bill also does not explicitly address the case that the employment relationship in the context of which the whistleblower obtained the information has already ended. Nevertheless, all persons and groups of persons covered by the Directive are at least covered by the catch-all formulation of § 1 (2) of the German draft bill, which requires that they are merely affected by the report or disclosure. However, since the EU Directive is also conceivably broad in its scope of personal protection, this does not result in any recognisable extension of the scope of protection in German law. Regarding time frame, the German bill includes in § 42 the possibility of privileging private companies with less than 250 employees, for which the obligation to set up an internal reporting office will only come into effect from 17 December 2023. The significantly broader scope of application of the draft bill for a German Whistleblower Protection Act compared to the EU Directive 2019/1937 results from the definition of the scope of material application. It includes not only reports and disclosures of violations of national German criminal law, but also administrative offences,42 via the legal provisions that are subject to mandatory protection under EU law. However, the inclusion of the catalogue of actions does not make it any clearer than the list in the EU Directive, but rather it remains barely comprehensible for those affected. In addition, the legal definition of “infringements” in § 3 (2) blurs the line between violation of the law and lawful action. In the context of professional, entrepreneurial or official activity, in addition to the unlawful acts and omissions covered in § 1, § 2 also covers as infringements acts that are “abusive because they run counter to the aim or purpose of the regulations in the provisions or areas of law that fall within the material scope of application under § 2”. This wording only allows the conclusion that, beyond infringements of the laws falling within the scope of application, notifications are protected which go so far as to inform about actions contrary to the intentions of the rules.43 Not only the unmanageable catalogue of legal matters covered, but also this blurring of the boundaries between legal violations, on the one

42 Cf. also the criticism by the Hessian Minister of Justice Roman Possek in the 10 February 2023 session of the German Bundesrat, Bundesrats Plenarprotokoll 1030, p. 4 et seq.; on the part of the Bavarian Minister of Justice Georg Eisenreich, the “enormous expansion of the scope of application” beyond the requirements of the Directive was generally criticised in the same debate, Bundesrats Plenarprotokoll 1030, p. 3, but without specifying this. For the federal government, Parliamentary State Secretary Benjamin Strasser defended the expansion with otherwise existing contradictions in values, Bundesrat Plenarprotokoll 1030, p. 6. Thuringia, according to Minister Benjamin-Immanuel Hoff, Bundesrat Plenarprotokoll 1030, would have liked an even broader scope of application that would have covered whistleblowing that had not yet crossed the border to criminal and administrative offences law. 43 The motion for resolution of the CDU/CSU parliamentary group on the later split bills also saw a need for clarification in this respect in its No. II. 2. cf. Deutscher Bundestag, Drs. 20/6198, quoted according to the preliminary version.

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hand, and merely undesirable conduct, on the other hand, makes the delimitation of the area covered by protection more difficult. b) Establishment of Internal and External Whistleblowing Systems The threshold of 50 employees, which EU law also provides for an obligation to set up internal whistleblowing systems, is also taken up in the German draft bill. However, the 2022 draft bill did not yet provide for an obligation to provide anonymous reporting channels. Companies with 50 to 249 employees could set up joint internal reporting offices together with other companies. This would mean at least a certain relief for small companies.44 In contrast, the fact that the later draft bill sanctions failure to set up internal reporting offices as an administrative offence is more stringent than the minimum requirements in the Directive.45 Fines of up to E20,000 are foreseen for violations.46 That will increase the pressure on companies to set up appropriate internal reporting channels as soon as the law goes into force, especially for small and medium-sized enterprises. Transitional periods for the application of the fine provisions are not included. The incentives for companies to set up internal reporting offices are considered high enough anyway. There is no need for additional fines. As far as external reporting offices are concerned, the draft designates the Federal Office of Justice as the external reporting office of the German federal government,47 which is always responsible if no other external reporting office has been established for the respective area. The Länder are free to set up their own external reporting offices.48 If they do not do so, the federal reporting office is responsible.49 For certain areas, other external reporting offices are also to be set up at the federal level.50 Like the Directive, the government coalition’s draft bill provides for an equivalence of internal and external reporting channels.51 The law does not contain any encouragement to the effect that internal reporting channels are to be used as a matter of priority. However, encouraging or privileging internal reporting channels would actually make sense for several reasons. Internal reporting makes it possible to clarify the situation within the company at an early stage. An internal body usually has much better knowledge of the company than an external one. In addition, it creates a clear incentives for companies to effectively equip their internal reporting channels. 44 The draft bill assumed that on average four employment providers join forces for one post, cf. Deutscher Bundestag, Drs. 20/3442, p. 42. 45 § 40 para. 2 no. 2 of the draft bill, Deutscher Bundestag, Drs. 20/5992. 46 § 40 para. 6 p. 1 of the draft bill, Deutscher Bundestag, Drs. 20/5992. 47 § 19 para. 1 of the draft bill, Deutscher Bundestag, Drs. 20/5992. 48 § 20 of the draft bill, Deutscher Bundestag, Drs. 20/5992. 49 § 19 para. 4 of the draft bill, Deutscher Bundestag, Drs. 20/5992. 50 §§ 21 ff. of the draft bill, Deutscher Bundestag, Drs. 20/5992. 51 § 7 of the draft bill, Deutscher Bundestag, Drs. 20/5992.

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Neither for the internal nor for the external reporting offices does the governing coalition’s draft bill provide for the obligation to maintain anonymous reporting channels.52 However, it is envisaged that both internal and external reporting offices will nevertheless follow up on anonymous reports received. c) Prohibition on Reprisal In addition to the establishment of reporting offices, the German draft bill – like the EU Directive – also provides for a prohibition on reprisal in order to protect whistleblowers.53 Reprisal is defined as “acts or omissions in connection with professional activity which are a reaction to a report or disclosure and which cause or may cause unjustified disadvantage to the person making the report”.54 Unlike the EU Directive, the draft bill refrains from listing examples of possible disadvantages that could be considered reprisals and leaves it at the abstract definition. According to § 36(2) of the draft bill, it is presumed that a disadvantage in connection with occupational activity that occurred after a report or disclosure is a reprisal. In that context, the employer then has to prove that there were justifiable reasons for the disadvantage or that the disadvantage is not based on the report or disclosure. This reversal of the burden of proof provided for in the law is – just as in the EU Directive – very broadly defined. In this respect, its scope will have to be clarified by case law, which will lead to uncertainty for affected companies in the period immediately after the law comes into force.55 The draft bill obliges companies to comply with extensive documentation and storage obligations; for example, § 11 of the draft stipulates that internal reports including investigations, have to be documented and stored for at least two years after the conclusion of the procedure. The documentation requirements also increase where reprisal measures are taken against employees, in order to be able to explain, in the event of a dispute, what the motives were for the decision.

52

Cf. § 16 para. 1 p. 5 of the draft bill for internal and § 27 para. 1 p. 3 of the draft bill for external reporting offices, Deutscher Bundestag, Drs. 20/5992. 53 § 36 para. 1 of the draft bill, Deutscher Bundestag, Drs. 20/5992. 54 § 3 para. 6 of the draft bill, Deutscher Bundestag, Drs. 20/5992. 55 Cf. on the scope and the questions to be clarified regarding the reversal of the burden of proof Zimmer/Schwung, NZA 2022, p. 1167 et seq.

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2. Split Draft Bills of the Government Coalition Partners for a Whistleblower Protection Law56 as well as for Supplementary Rules on Whistleblower Protection57 Involving the Additional Requirement of the Availability of Anonymous Reporting Channels In view of the lack of approval in the Bundesrat for their draft Whistleblower Protection Act Bill of 2022, the three parties in the governing coalition have submitted two split draft bills for a Whistleblower Protection Act as well as for supplementary regulations to it. Splitting the legislation into two bills ultimately circumvents the need for agreement with the Länder in the Bundesrat for the entire complex of rules contained in the earlier 2022 bill. Although this may be criticised from a constitutional policy perspective,58 constitutionally the arbitrariness limit that applies to this should not be exceeded, because the remaining rump law is feasible as a law in its own right.59 For the most part, the content of these two draft bills corresponds to the single draft Whistleblower Protection Act bill of the previous year (see a). However, the new draft bill for a Whistleblower Protection Act does not include the content that triggered the obligation to obtain approval of the Bundesrat for the bill to be enacted into law. In this respect, § 1 (3) of the draft bill Drs. 20/5992 excludes reports and disclosures “by civil servants of the Länder, municipalities and associations of municipalities as well as other public corporations, institutions and foundations subject to the supervision of a Land as well as by judges in the service of the Land” from the scope of application. This provision is then to be deleted by the Supplementary Act, Drs. 20/5991, which requires the consent of the Bundesrat, so that after the entry into force of both bills, the same scope of application would apply as in the 2022 bill. Despite a corresponding recommendation for resolution of the impasse by the Bundestag’s Legal Affairs Committee,60 the 2nd and 3rd readings of both bills were not passed. Despite a recommendation to this effect by the Bundestag’s Legal Affairs Committee, the second and third readings of the two bills were initially removed from the agenda of the plenary session in order to explore possibilities for agreement with the CDU/CSU parliamentary group, which had requested that the 2022 bill (see a), which had been passed in the Bundestag, be referred to the Mediation Committee.61

56

Deutscher Bundestag, Drs. 20/5992, 14. 3. 2023. Deutscher Bundestag, Drs. 20/5991, 14. 3. 2023. 58 Cf. also the motion for a resolution of the CDU/CSU parliamentary group, Deutscher Bundestag, Drs. 20/6198 of 29. 03. 2023, quoted from the unedited preliminary version. 59 Sannwald, in: Schmidt-Bleibtreu/Hofmann/Hennecke (eds.), GG, Art. 78 margin no. 18 et seq. 60 Deutscher Bundestag, Drs. 20/619, 28. 3. 2023 61 Deutscher Bundestag, Drs. 20/6175 vom 28. 3. 2023. 57

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It is noteworthy that in amendment of the scope of application of the draft legislation to include violations of the European Digital Markets Act62 (§ 2, paragraph 1, nos. 9 and 10 of the draft Drs.20/5992) and statements by civil servants that constitute a violation of the duty of loyalty to the constitution (§ 2, paragraph 1, no. 10 of the draft Drs. 20/5992), the new draft legislation now also provides for the provision of mandatory anonymous reporting channels for both internal63 and external64 reporting offices. As justification for the mandatory establishment of anonymous reporting channels, the draft bill merely refers to the fact that in 2021, according to a survey, more than 70 per cent of the companies surveyed in Germany that had already established a whistleblower reporting system would allow anonymous reports.65 Technical devices or the involvement of an ombudsperson are mentioned as possibilities for implementation.66 With regard to the additional requirement to create and maintain anonymous reporting channels in contrast to the 2022 draft bill, the new draft bill assumes increased compliance costs for both internal and external reporting offices, which will affect the economy and the public administration, saying however, that this “cannot be quantified at present (…)”.67 Another addition in the new draft is the request to employers to provide incentives to whistleblowers to first contact the internal reporting offices before reporting to the external reporting offices.68 At the same time, it is envisaged69 that the external reporting offices will inform natural persons who wish to make a notification about 62

(EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828, OJ L 265, 12. 10. 2022, p. 1. 63 Cf. § 16 para. 1 p. 3 – 5 of the draft bill, Deutscher Bundestag, Drs. 20/5992: “(…) The internal reporting office must also process anonymous incoming reports. For this purpose, reporting channels are to be provided which enable anonymous contact and anonymous communication for the person making the report between the person making the report and the internal reporting office. If anonymous reports are received without using the reporting channel according to sentence 5, § 11 paragraph 4, § 17 paragraph 1 numbers 1, 3 and 5 and paragraph 2 as well as § 18 number 2 shall not apply.” 64 Cf. § 27 para. 1 p. 3 – 5 of the draft bill, Deutscher Bundestag, Drs. 20/5992: “The external reporting offices must also process anonymous incoming reports. For this purpose, reporting channels are to be provided which enable anonymous contact and anonymous communication for the person making the report between the person making the report and the external reporting office. If anonymous reports are received without using the reporting channel according to sentence 4, § 11 paragraph 4, § 28 paragraph 1 and 4, § 29 paragraph 2 number 2, § 31 paragraph 5 sentence 1 and paragraph 6 sentence 1 do not apply. In this case, whistleblowers may not invoke § 32(1)(1) when disclosing information on infringements.” 65 Deutscher Bundestag, Drs. 20/5992, p. 66. 66 Ibid. 67 Deutscher Bundestag, Drs. 20/5992, p. 4. 68 § 7, paragraph 3, sentence 1 of the draft bill, Deutscher Bundestag, Drs. 20/5992: “Employers who are obliged to establish internal reporting offices under § 12, paragraphs 1 and 3, shall create incentives for whistleblowers to first contact the respective internal reporting office before reporting to an external reporting office (…).” 69 § 24 para 2 p. 2 des Gesetzesentwurfs, Deutscher Bundestag, Drs. 20/5992.

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the possibility of making an internal notification.70 In this way, the new draft bill aims to comply with the obligation to promote internal reporting channels, which results from the EU Directive. Furthermore, within the framework of the obligation to pay damages in compensation for reprisals, i. e. damages for pain and suffering71, there is included the possibility of organising a meeting with the external reporting office by means of a video conference – already provided for in the 2022 bill – with the consent of the whistleblower.72 A provision for the processing of personal data by the reporting offices has also been added;73 it is foreseen that files will be deleted after three years. The deadline for the establishment of internal and external reporting channels is set for 1 January 2025.74 No major changes are apparent with regard to the prohibition on reprisals. Only the retention period for files within the scope of the notifications is extended to three years instead of two.75

IV. Exceeding the Goal? Whistleblower Protection in the EU and Germany, Examined in the Light of Freedom and the Rule of Law Whistleblower protection is primarily an instrument of decentralised law enforcement. The protection of whistleblowers’ freedom of communication is subordinate to this goal. Essentially, protection rules for whistleblowers who report actual or potential violations of the law are intended to contribute to strengthening the rule of law. Both the Directive at EU level and the present drafts bills for a German Whistleblower Protection Act pursue this intention. The aim is that natural persons, without relevant official responsibility, and without special official competence conferred by the state, will make the enforcement of the law their business as whistleblowers. This is an idea that is not far removed from the state’s understanding of an active civil society or the understanding of democracy as it prevails in the Western constitutional states. The law order is not only enforced by public officials such as prosecutors, police officers, judges, bailiffs and prison officers, but it is also supported and realised by civil society. Respect for the legal system, as a concern of society as a whole, is necessary and correct for a functioning constitutional state. It takes place, on the one hand, through the observance of legal rules by the subjects of the law, and, on the other 70 Ibid: “(…)In this context, the external reporting offices also provide information in particular about the possibility of an internal report.” 71 § 37 para. 1 p. 2 of the draft bill, Deutscher Bundestag, Drs. 20/5992: “Because of damage that is not pecuniary damage, the person providing the information may demand reasonable compensation in money.” 72 § 27 para. 3 sentence 3 of the draft bill, Deutscher Bundestag, Drs. 20/5992. 73 § 10 of the draft bill, Deutscher Bundestag, Drs. 20/5992. 74 § 42 para. 2 of the draft bill, Deutscher Bundestag, Drs. 20/5992. 75 § 11 para. 5 of the draft bill, Deutscher Bundestag, Drs. 20/5992.

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hand, through the support of its enforcement through the channels opened up by the legal system. Rules for the protection of whistleblowers belong in this context. Incidentally, the state’s monopoly on the use of force is not affected by these rules or comparable instruments, because they do not open the way for vigilante justice. Enforcement of the rule of law is an elementary prerequisite for people to live safely in a state governed by the rule of law.76 However, enforcement of the law within the framework of the rule of law must always be considered together with the protection of freedom. The protection of freedom – just like the enforcement of the rule of law – is one of the central structural principles of both the European Union77 and the Federal Republic of Germany.78 Both – freedom and security under the rule of law – are mutually dependent,79 but they have always been implicitly conflicted.80 This is especially true when the European Union or the German constitutional state strengthens the protection of whistleblowers and in doing so introduces financial burdens for entrepreneurs that affect their right to freedom. Protection from reprisals as an instrument of whistleblower protection appears to be fundamentally understandable, especially in the context of criminal conduct or other serious violations of the law. A natural person who learns of violations of the law should not be prevented from taking action to stop the violations, i. e. on behalf of the legal system because of fear of personal disadvantages. In this respect, private employers do not need to be protected from their own seriously unlawful conduct remaining undetected. Excessive encroachment on the sphere of freedom of employers only occurs where whistleblower protection is extended to lawful, albeit undesirable, conduct. The fact that liability for erroneous notifications is limited to gross negligence and wilful misconduct also impairs the substantive rights of entrepreneurs in their established business operations. Whether this is still proportionate to the protection of the legal system or whether one cannot also expect whistleblowers 76 Law and the enforcement of law are inextricably linked, as Rudolf von Jhering aptly stated in his 19th century book “Der Kampf ums Recht” (The Struggle for Law), based on the image of Iustitia, when he said that the sword without the scales is naked violence, and the scales without the sword are the impotence of law (Rudolf von Jhering “Der Kampf ums Recht”, 1872). Therefore, for people who want to live in security, as the great legal philosopher Gustav Radbruch put it, the rule of law is “like daily bread, like drinking water and breathing air, and the best thing about democracy, precisely this, that only it is capable of securing the rule of law” (Gustav Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht”, Süddeutsche Juristen-Zeitung, Jahrg. 1, no. 5 (August 1946), pp. 105 – 108). 77 Cf. Art. 2 p. 1, Art. 3 para. 2 TEU. 78 Cf. Art. 1, 20 paras. 3 and 79 para. 3 GG. 79 In 1851, Wilhelm von Humboldt stated in his monograph “Ideas for an Attempt to Determine the Limits of the Efficacy of the State”: “Without security, man is neither able to train his powers nor to enjoy the fruits of them; for without security there is no freedom”. 80 Benjamin Franklin is credited with the quote: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”. (Reply to the Governor, printed in Votes and Proceedings of the House of Representatives, 1755 – 1756 (Philadelphia, 1756), pp. 19 – 21).

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to exercise due diligence, as required in other legal transactions, when reports are given to or disclosed to authorities, remains to be discussed. Much more problematic from the point of view of freedom is the compulsory obligation to create corresponding internal reporting systems. According to the explanatory memorandum of the draft bill of 2022, to which the new split draft law of 2023 also refers, more than 90,000 employers in the private sector are affected by this obligation, almost 74,000 of them with less than 250 employees.81 In terms of compliance costs, the 2022 German draft bill foresaw a one-time expenditure of E190 million and annual operating costs of E200.9 million for the affected companies. Of that money, E3.1 million would go to administrative costs for information obligations provided for in the law. The lion’s share would be accounted for by the operation of the internal reporting offices. These costs do not yet take into account the mandatory obligation added to the 2023 draft bill to equip the internal reporting systems with anonymous reporting channels. The split draft of 2023 sees the additional costs triggered by this as currently not concretely quantifiable.82 Whether this means almost half a billion Euros in annual costs for all obligated companies, as one speaker in the plenary debate saw it,83 or not: the annually recurring cost on the affected companies alone is considerable. According to statistical calculations, the 2022 draft bill foresaw 4 notifications per 1,000 employees, of which only 70 % – i. e. 2.84 per 1,000 employees – would give rise to follow-up measures.84 For a company with 50 employees, based on these assumptions, this means that in 20 years, statistically speaking, there will not be 3 notifications giving rise to follow-up measures. Of course, there are companies that have voluntarily implemented compliance and information systems in recent years. This often has the goal of being able to stop undesirable developments at an early stage, protecting one’s own reputation and preventing sanctions, which threaten, for example, in the case of corrupt practices in international competition. The 2022 draft bill foresaw that already in 2019 73.9 % of companies with 250 or more employees and 43.7 % of companies with 50 – 249 employees would have voluntarily implemented corresponding whistleblower systems.85 The 2023 split bill foresees – with reference to the same study – that 70 % 81 Deutscher Bundestag, Drs. 3442, p. 41 speaks in the explanatory memorandum of 90,621 organisational units of affected employers, 73,823 of which have less than 250 but more than 49 employees. Of these 90,621, 45,946 had not yet implemented a whistleblower system. These figures of existing whistleblowing systems at companies were, however, doubted in the debate, cf. MdB Martin Plum, Deutscher Bundestag, Stenographic Report 77th Session, p. 9205. 82 Deutscher Bundestag, Drs. 20/5992, p. 4. 83 MdB Martin Plum, Deutscher Bundestag, Stenographic Report 77th Session, p. 9203 et seq. (9205 et seq.). 84 Cf. Deutscher Bundestag, Drs. 3442, p. 42. 85 Cf. Deutscher Bundestag, Drs. 3442, p. 41: The figures are taken from Hauser/BrettiRainalter/Blumer, Whistleblowing Report 2021. EQS Group AG, Fachhochschule Graubünden.

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of the companies with whistleblowing systems would have implemented anonymous reporting channels in 2021.86 However, with reference to another 2022 study, according to which only 19 % of the companies had fully implemented whistleblowing systems, these figures were disputed in parliamentary debate.87 But in the end it is not decisive whether just under 20 % or just under 50 % of companies have voluntarily implemented whistleblowing systems. That is because this implementation is a voluntary entrepreneurial decision. The question is whether, in view of the entrepreneurial freedom protected by the German constitution and EU law, it is proportionate to require all companies with more than 50 employees to have such a notice system. The question also arises because, given the relatively small number of notifications to be expected – assuming 4 per 1,000 – there are external reporting offices as well as internal ones. In this respect, the added value for the enforcement of the legal framework appears to be too small to outweigh the encroachment on entrepreneurial freedom and the burden on the economy associated with the obligation to introduce internal reporting channels.

V. Concluding Assessment The protection of whistleblowers is important in order to uncover violations of the law and thus contribute to the enforcement of this legal framework. A balanced prohibition of reprisals is an appropriate means here, which is also applied in other liberal and constitutional orders outside Germany and Europe. Whether, in addition, the elaborate system of internal reporting offices, as a mandatory requirement for companies with 50 or more employees, makes a further meaningful contribution seems questionable. Its scope of application alone seems so complicated that it is unclear whether it can be used effectively by whistleblowers. Without doubt, the system involving internal reporting structures leads to high financial costs for the economy and to significant interference in both the organisational freedom of private entrepreneurs, which is protected by law, as well as in the substance of their established businesses. In contrast to the Anglo-American area, such internal reporting channels are rather alien here to established corporate culture. A restriction to a few external reporting channels organised by the public sector, as well as a balanced prohibition of reprisals based on a clearly defined scope of application, would provide a much clearer structure. This would also offer a better perspective for the European Union and the Federal Republic of Germany in activating the citizenry as guardians of their own legal order than the over-differentiated and difficult to understand system as envisaged by the Directive and the German draft bills. This frame-

86

Cf. Deutscher Bundestag, Drs. 5992, p. 66. Cf. MdB Martin Plum, Deutscher Bundestag, Stenographic Report, 77th Session, p. 9205. 87

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work lacks the pragmatism that is seen in Israel’s legal system which has the ombudsman as a point of contact, and situates prohibitions on reprisals in labour law. Bibliography Adler, Stephen J./Avgar, Ariel: ILO, National Labour Law Profile: The State of Israel, available at: https://www.ilo.org/ifpdial/information-resources/national-labour-law-profiles/WCMS_ 158902/lang-en/index.htm. (accessed at 13. 4. 2023). Anger, Heike/Neuerer, Dietmar: Union und SPD streiten über Schutz von Whistleblowern, Handelsblatt 02. 01. 2021, Hauser, Christian/Bretti-Rainalter, Jeanine/Blumer, Helene: Whistleblowing Report 2021, EQS Group AG, Fachhochschule Graubünden, Chur 2021. Humboldt, Wilhelm von: Ideen zu einem Versuch, die Gränzen der Wirksamkeit des Staats zu bestimmen, Breslau 1851. Jhering, Rudolf von: Der Kampf ums Recht, Vienna 1872. Plum, Martin: Deutscher Bundestag, Stenographic Report 77th Session, p. 9203 et seq. Radbruch, Gustav: Gesetzliches Unrecht und übergesetzliches Recht, Süddeutsche Juristenzeitung Vol. 1 No. 5, August 1946, pp. 105 – 108. Schmidt-Bleibtreu, Bruno/Hofmann, Hans/Hennecke, Hans-Günter (eds.): Grundgesetz Kommentar, 13th edition, Cologne 2014. Zimmer, Mark/Humphrey, Katharina: Petzen? Ja, bitte! – Meldesysteme nach der Whistleblower-Richtlinie der EU, BB 07/2022, pp. 372 – 376. Zimmer, Mark/Schwung, Benita: Hilfe für Hinweisgeber – Beweislastumkehr nach § 36 II HinSchG-RegE, NZA 17/2022, pp. 1167 – 1172.

The Evolving Concept of Minority Shareholders as Controllers – The Israeli Perspective By Orit Fischman Afori*

I. Introduction The phenomenon of minority shareholders as controllers, even if holding a very low percentage of the shares, became common in the U.S. and it is making its first steps into the Israeli market as well.1 Various factors have triggered this relatively new phenomenon, including changes in the structure of the markets and the rising power of institutional investors in publicly listed companies that are lacking a controller. Moreover, the rise of the startup company model, where investors seek to institute measures guaranteeing the ability to control the conduct of the company, even if they are holding minimal shares, has fostered this phenomenon.2 Such measures are evolving and may include dual-class shares or contractual veto powers for minority shareholders.3 The startup model is thriving in Israel, bringing new legal challenges to the question of who is a controlling shareholder.4 * Prof. Dr. Orit Fischman Afori is a Law Professor, Haim Striks Faculty of Law, College of Management, Israel. 1 See e. g., Bebchuk/Kastiel, The Perils of Small-Minority Controllers, Georgetown Law Journal 107 (2019), p. 1453; see also Berle/Means, The Modern Corporation and Private Property (explaining that “under the corporate system, control over industrial wealth can be and is being exercised with a minimum of ownership interest”). 2 See e. g., Lipton, After Corwin: Down the Controlling Shareholder Rabbit Hole, Vanderbilt Law Review 72 (2019), p. 1977; Donaldson, Inside Funding Rounds in Venture-Bakked Companies: The Perils of Effective Control, Delaware Journal of Corporate Law 43 (2019), p. 419; Pollman, Startup Governance, University of Pennsylvania Law Review 168 (2019), pp. 155, 184. Until the mid-2000’s the control of publicly traded corporations in Europe was typically held by a single individual, family, or group, see Gilson, Controlling Shareholders and Corporate Governance: Complicating the Comparative Taxonomy, Harvard Law Review 119 (2006), pp. 1641, 1645 – 1646. 3 Bebchuk/Kastiel, supra note 1, at p. 1459; Goshen/Hamdani, Corporate Control, Dual Class, and the Limits of Judicial Review, Columbia Law Review 120 (2020), p. 941. 4 For the thriving “startup” sector in Israel see: OECD, Investment by Asset, OECD-DATA (31 Dec. 2021); The Israeli Innovation Authority, The Israeli High-Tech 2022 Report, available at: https://innovationisrael.org.il/en/reportchapter/part-israeli-high-tech-2022-situation-rep ort (accessed at 25. 3. 2023). See also data regarding the rising investments in the Israeli Hi Tech ecosystem at: https://www.ivc-online.com/ (accessed at 25. 3. 2023).

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The increasingly frequent scenario in which minority shareholders enjoy control has prompted a discussion about the challenges associated with this new phase of control and its implications.5 The traditional market failures concerning majority shareholders’ excessive power that may be abused are replicated in the emerging scenario of minority control.6 Occasionally, such controlling power is hidden, difficult to identify, and address. Therefore, greater attention should be paid to the identification of situations in which the minority gains control over the conduct of a company. Former Justice Danziger has been known for developing Israeli company law, and many of his decisions made a significant contribution to the field. In a case handed down in 2015, which has not attracted much attention in the legal community, Justice Danziger acknowledged a minority shareholder’s control and imposed on him the relevant obligations typically applied in cases of majority control. This decision can serve as a milestone in future case law for adapting the concept of control to the current business environment.

II. Minority Shareholders as Controllers in Israeli Corporate Law A set of accepted norms in modern corporate law impose various duties on controlling shareholders, aimed at restraining their power and protecting the interests of the company and of the minority shareholders.7 It is imperative, therefore, to define who is regarded as a controlling shareholder. For the purpose of companies and securities law, Israeli law applies two alternative tests to define control: a quantitativetechnical test of holding half or more of the controlling means in a company, such as voting rights; and a qualitative-substantive test inspecting the ability to direct the company’s conduct.8 The law is clear that shareholders with less than 50 % of the 5 See e. g., Anabtawi/Stout, Fiduciary Duties for Activist Shareholders, Stanford Law Review 60 (2008), p. 1255; Stracar, Applying a New Regulatory Framework to Interested Transactions by Minority Shareholders, University of Pennsylvania Journal of Business 20 (2018), p. 993. 6 Lipton, supra note 2. 7 Bayne (ed.), The Philosophy of Corporate Control: A Treatise on the Law of Fiduciary Duty; Gilson/Gordon, Controlling Controlling Shareholders, University of Pennsylvania Law Review 152 (2003), pp. 785, 787 – 788; La Porta/Lopez de Silanes/Shleifer/Vishny, Investor Protection and Corporate Governance, Journal of Financial Economics 58 (2000), p. 3 (discussing different laws aimed at protecting shareholders and creditors from expropriation by the managers and controlling shareholders); Gilson, supra note 2, at p. 1650. 8 Article 1, Israeli Companies Law (1999), refer to the definition of the term “control” as stipulated in the Israeli Securities Law (1968): “– Control – the ability to direct the activity of a corporation, excluding an ability deriving merely from holding an office of director or another office in the corporation, and a person shall be presumed to control a corporation if he or she holds half or more of a certain type of means of control of the corporation; – Means of control – in a corporation – any one of the following: (1) The right to vote at a general meeting of a company or a corresponding body of

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holdings may still be regarded as a controller if they meet the qualitative-substantive test.9 The important question is how this latter test is interpreted by the courts. The test determining control has developed in Israeli law on a case-by-case basis. In the seminal case of Kosoy, the Supreme Court held that the concept of control is a complex one and its application varies according to the relevant context.10 In other cases, courts stressed that the purpose of the application of the concept of control affects the meaning ascribed to it.11 The complexities involved in identifying control stem from the wide range of types of control and from the different situations in which control may be invoked. Therefore, courts have applied a dynamic approach regarding control, based on the factual circumstances in each case. The known ‘agency problem’, in which stakeholders may be tempted to promote their interests at the expense of that of the entire company, may arise in the context of minority-majority shareholders’ interrelations as well.12 The majority, having control over the company’s conduct, may promote their own benefit at the detriment of the minority.13 Such conduct is regarded as misuse of power that should be addressed.14 Therefore, the identification of a controlling position seeks to locate the circumstances in which shareholders may raise the ‘agency problem’, that should be restrained.15 To date, most of the cases discussing the imposition of obligations on controllers have addressed traditional scenarios of a key shareholder holding half or more of the powers in the company. But as the Israeli business sector became more diversified and complex,16 the question has been raised whether the minority shareholders could also be identified as controllers. another corporation; (2) The right to appoint directors of the corporation or its general manager”. 9 CA 1186/93 The State of Israel v. Discount Bank LTD, PD 48 (5) 353, 361 (1994) (hereinafter: Discount Bank case); AA (Administrative Appeal) 6352/01 Israel News (T.E.N.C.) LTD v. Minister of Communications, PD 56 (2) 97, 114 (2001) (hereinafter: Israel News case). 10 PCA 817/97 Edouard Kosoy and others v. Feuchtwanger Bank and others, PD 38 (3) 253, 287 (1984) (hereinafter: Kosoy case). 11 Israel News case, supra note 9, at p. 114; CA (Criminal Appeal) 3506/13 Habi v. The State of Israel (published in NEVO, 2016) (hereinafter: Habi case). 12 Fama, Agency Problems and the Theory of the Firm, Journal of Political Economy 88 (1980), p. 288. See also La Porta/Lopez de Silanes/Shleifer/Vishny, supra note 7. 13 La Porta/Lopez de Silanes/Shleifer/Vishny, supra note 7. 14 La Porta/Lopez de Silanes/Shleifer/Vishny, supra note 7, at pp. 7 – 8. 15 Gilson/Gordon, supra note 7. See also recent research exploring the issue of actual control: Geronimo, De Facto Control: Applying Game Theory to the Law on Corporate Nationality, Philippine Law Journal 90 (2017), p. 278; Rauterberg, The Separation of Voting and Control: The Role of Contract in Corporate Governance, Yale Journal on Regulation 38 (2021), p. 1124; Lipton, supra note 2; Donaldson, supra note 2. 16 See supra note 4.

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In two significant cases, the Supreme Court addressed the scenario of a minority shareholder as a controller. The first case, Israeli News, from 2001, discussed a government tender that required the winning company to be controlled by an Israeli citizen,17 so that the winning company managing the news of an important Israeli media channel would have significant ties to Israeli society. The holding structure of the winning company was complex: 20 % of the shares were held directly by a foreign company and another 30 % were held indirectly by foreign companies in a variety of percentages. Therefore, the question arose whether the winning company had met the requirement of being controlled by an Israeli entity. The Supreme Court held that the meaning of the concept of control was flexible and should be interpreted according to the purpose of the norm concerning a controlling shareholder. The Court ruled that the relevant test was the actual control, i. e., the ability to control the process of decision making in the company in practice or to influence the process.18 The Court further ruled that the power to prevent certain decisions from being taken, namely veto power, may also be regarded as providing control to a shareholder.19 The second significant decision by the Supreme Court on the matter was in 2016, in the Habi case.20 In this complex case, a group of investors purchased shares in a publicly listed company through a pyramidal structure, in which the various shares were held by the involved persons in percentages of less than 50 %, occasionally less than 10 %. The charges in this case were criminal, based on several offences, and the Court had to decide whether minority shareholders were regarded as controllers. The Court ruled in the affirmative, once again, interpreting control as a dynamic legal notion that should be applied on a case-by-case basis according to the circumstances and the purpose of the norm that is referring to the threshold of control.21 The Court reinforced the understanding that control should be examined by the actual ability of the shareholder to control the decision-making process in the company or to influence the process.22 The flexible nature of the concept of control was stressed in additional court decisions, emphasizing that the identification of a controlling shareholder is not a binary decision, but rather subject to context and circumstances.23 The outcome, therefore, is that several controlling shareholders may be acknowledged in the same company, each according to the relevant context requiring the controller to be identified.24 17

Israel News case, supra note 9. Israel News case, supra note 9, at pp. 114, 127 – 128. 19 Israel News case, supra note 9, at p. 136. 20 Habi case, supra note 11. 21 Habi case, supra note 11, at pp. 91 – 92. 22 Habi case, supra note 11, at p. 93. 23 See e. g., Discount Bank case, supra note 9; CA 345/ 03 Reichardt v. Shemesh Heirs (NEVO 2007). 24 CC (Tel-Aviv District Court) 12-02-48851 Merger Purpose Company LTD v. UltraShape Medical Ltd, 28 – 29 (NEVO 2012). 18

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III. The Duty of Fairness and the Haama v. Muller Case One of the most important standards set by Israeli Companies Law imposes a general duty of ‘fairness’ on controlling shareholders, including those whose vote is decisive and those possessing special powers in the company.25 The underlying rationale of this duty is that control generates fiduciary duties, similar to any situation in which one person gains control over other persons’ assets.26 The agency problem that may rise in shareholder relations is therefore addressed by imposing a duty of fairness on the relevant shareholder when exercising the power of control. The duty of fairness may be imposed not only on traditional controllers, namely those holding more than half the shares, but also on shareholders who exercise power in various situations, such as minority shareholders who can tilt the result of a vote.27 A highly controversial question concerns the meaning of the duty of fairness and the standard of conduct imposed on dominant shareholders. This question is discussed in recent case law, and it is beyond the scope of the present article.28 Yet the question on which shareholders should this higher standard of conduct be imposed has only occasionally been addressed by the courts. The Companies Law clearly seeks to elevate the standard of conduct with regard to various dominant shareholders even if they are not regarded as controllers under the traditional quantitative test. But the law is not explicit on whether the duty of fairness should be imposed on shareholders who exercise actual control. In this matter, the Supreme Court issued an important decision given by Justice Danziger (with Justices Handel and Solberg consenting) in 2015, in the case of Haama v. Muller.29 Justice Danziger held that the minority shareholders had contractual veto rights, which granted them decisive power that merits the imposition of fairness duties. The minority shareholders had a contractual veto with regard to key issues such as fundraising and the dilution of their shares.30 This is a conventional veto power in many business sectors, for example 25

Article 193, Israeli Companies Law (1999) stipulate that: “(a) The duty to act fairly towards the company shall apply to the following: (1) a holder of control in the company; (2) a shareholder who knows that the manner in which he votes will be decisive in respect of a resolution of the general meeting or of a class meeting of the company; (3) a shareholder who, pursuant to the provisions of the articles of association, has the power to appoint or to prevent the appointment of an office holder in the company or any other power vis-a-vis the company. (b) Breach of the duty of fairness shall be treated as a breach of the fiduciary duty of an office holder, mutatis mutandis.” 26 This general fiduciary duty was adopted by the Supreme Court in the landmark Kosoy case, supra note 10, at p. 278; Explanatory notes to the Israeli Companies Law Bill, 1995, HH (Bill) 2432, 23. 10. 1995, at pp. 70 – 71. 27 See Article 193 of the Israeli Companies Law, supra note 25. 28 Ofir, Shareholder Responsibility, Effective Power, and Dispersed Ownership Structure, Hebrew U. Law Review 53 (forthcoming in 2023) (Hebrew). See also e. g. Class Action 11-0126809 Kahana v. Makteshim Agan Industries (NEVO 2011); CA 14/7735 14/7972 Vardinikov and Zaken Hamo v. Alovich and others (NEVO 2016). 29 CA 15/6041 Haama v. Muller (NEVO 2016) (hereinafter: Muller case). 30 Muller case, id. at 17.

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in startups, where investors demand control over the dilution of shares in future rounds of fund raising.31 Justice Danziger emphasized that although the contractual veto was aimed to protect the minority from abuse of power by the majority, the veto allowed the holder to prevent the company from raising funds in order to avoid the dilution of shares. Such veto amounts to influence on the core business of the company, therefore it should trigger the duty of fairness. The power of the minority to hold the company hostage must be restrained. Justice Danziger concluded his ruling by stating that as the influence of a shareholder on the conduct of a company grows, the duty to apply such influence in accordance with the best interests of the company grows with it.32 According to this perception, the duty of fairness should be imposed on any shareholder exercising actual control on the conduct of the company or having significant influence on it.33 This important ruling may be viewed as the adoption of the substantive and dynamic control test in Israeli law with respect to the fairness duty imposed on a broad range of shareholders. The implications of identifying a minority shareholder as subject to the duty of fairness create controversy about the content and meaning of such duty. The question is whether the duty of fairness is a binary one, so that either it applies or not, and whether when applied it imposes a rigid set of obligations, or alternatively, whether the duty is comprised of a range of obligations that are imposed gradually, according to the scope of control in each particular case.34 This question has not been answered yet by case law. It remains to be seen how the shaping of the concept of control will affect the development of the substantive law regarding the obligations imposed on dominant shareholders in the company. The Haama v. Muller case is the first harbinger of such discourse, and it serves as another important contribution of Justice Danziger to the development of Israeli company law.

IV. The Delaware Model To a large extent, Israeli company law follows the Delaware model of corporate law.35 Therefore, recent developments regarding the concept of control in Delaware and the approach of the Delaware court to minority shareholders as controllers have particular significance as comparative law. 31

See e. g. Basho Techs. Holdco B, LLC v. Georgetown Basho Invs., LLC, 2018 WL 3326693 (Del. Ch. July 6, 2018), aff’d sub nom., Davenport v. Basho Techs. Holdco B, LLC, 221 A.3d 100 (Del. 2019) (hereinafter: Basho case). 32 Muller case, supra note 29, at 17. 33 Ofir, supra note 28. See also Ofir, Controlling Non-controlling Shareholders: The Case of Effective Control, Theoretical Inquires in Law 25 (forthcoming in 2024). 34 Licht, Great Power and Great Responsibility: Contours of Controlling Shareholder Responsibility (Hebrew). 35 Baum/Solomon, Delaware’s Copycat: Can Delaware Corporate Law Be Emulated?, Theoretical Inquires in Law 23 (2002).

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Corporate law in the U.S. is regulated at the state level. Under Delaware law, a mixed approach is used to define control, which includes quantitative-technical and qualitative-substantive tests, similar to those that apply under Israeli law.36 By contrast, U.S. securities law is regulated at the federal level. The U.S. Securities and Exchange Commission (SEC) has adopted an approach that emphasizes the qualitative-substantive test, stipulating that control means “the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.”37 A similar approach, even broader in scope, was adopted by the American Law Institute in its Corporate Governance Restatement project, defining ‘control’ as the “power, directly or indirectly, either alone or pursuant to an arrangement or understanding with one or more other persons, to exercise a controlling influence over the management or policies of a business organization, through the ownership of or power to vote equity interests, through one or more intermediary persons, by contract, or otherwise.”38 The Restatement perceives influence over the management or policies of a company as potentially generating control. Under Delaware corporate law, controlling shareholders are subject to fiduciary duties to the company, requiring full fairness in the various transactions in which they are involved, which may be reviewed by the court.39 By contrast, according to the Corwin decision of 2015, transactions involving non-controlling shareholders that raise a conflict of interest may be approved by a non-conflicting shareholder vote, without the requirement of full fairness that is subject to judicial review.40 Therefore, the question whether a minority shareholder has control is critical because the answer determines whether the full fairness standard is invoked. Delaware case law has adopted the ‘effective control’ or the ‘actual control’ substantive test,41 which has developed extensively in the last decade.42 A few leading cases can demonstrate this trend, with the Corwin decision standing at the heart of a public debate because

36

Solomon v. Armstrong, 747 A.2d 1098, 1116 n. 53 (Del.Ch.1999) (“Under Delaware law, the notion of a ‘controlling’ stockholder includes both de jure control and de facto control.”). 37 17 Code of Federal Regulation 240.12b–2 (1999). 38 American Law Institute, Principles of Corporate Governance § 1.08. 39 Kahn v. M&F Worldwide Corp., 88 A. 3d 635 (Del. 2014). 40 In re KKR Fin. Holdings LLC Shareholder Litig., 101 A.3d 980, at 995 (Del. Ch. 2014), aff’d sub nom., Corwin v. KKR Financial Holdings LLC, 125 A.3d 304 (Del. 2015) (hereinafter: Corwin case). Moreover, according to the Corwin case, the court needs to reach the conclusion that it is “reasonable to infer” that there is actual control in the relevant case and there is no need to prove that it has been operated de facto. 41 Kahn v. Lynch Commc’n Sys., Inc., 638 A.2d 1110 (Del. 1994). 42 See Chuff/Cline/Greenberg/Bartholomew, Controlling Stockholder or Member Status under Delaware Law – A Table of Key Decisions, American Bar Association 2021, available at https://www.americanbar.org/content/dam/aba/publications/litigation_committees/business torts/cases/table-of-key-controller-decisions.pdf (accessed at 25. 3. 2023).

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the minority, in this case, held less than 1 % of company shares, therefore the willingness of the court to even consider potential actual control stands out.43 In the Basho case, from 2018, the minority shareholders, holding 40 % of the shares, enjoyed various contractual veto rights that are typical in startup companies, such as veto concerning mergers and acquisitions, share issues, and amendments of the company charter.44 The Court concluded that under the circumstances these powers amounted to control. The Court stressed that in order to conclude that minority shareholders had actual control it is necessary to prove either general control or influence on the ordinary business conduct of the company or specific control over a particular transaction. There is a range of means by which such actual control may be created, for example, by “(i) relationships with particular directors that compromise their disinterestedness or independence, (ii) relationships with key managers or advisors who play a critical role in presenting options, providing information, and making recommendations, (iii) the exercise of contractual rights to channel the corporation into a particular outcome by blocking or restricting other paths, and (iv) the existence of commercial relationships that provide the defendant with leverage over the corporation, such as status as a key customer or supplier.”45 Therefore, the conclusion about minority shareholder control should be made case by case, and the various common practices that may lead to such a conclusion suggests that this is not an exceptional scenario. The Basho decision was applied in additional cases, in which the Delaware Court concluded that minority shareholders with much lower holdings were nevertheless controllers. For example, in the Voigt case, from 2020, the Court held that a minority shareholder that was holding 35 % of the shares was a controller because of a series of contractual rights that gave it a significant “leverage” over the business conduct of the company.46 In the Skye Mineral case, also from 2020, the Court held that a minority shareholder that was holding 28 % of the shares was a controller having activated veto rights that prevented the company from issuing shares to new investors, which eventually led the company to insolvency. This shareholder, the court concluded, had control over the “on/off button” of the company.47 Thus, the ‘actual control’ test is a sen-

43

Corwin case, supra note 40. See e. g., Reder/Dillard, Chancery Court Denies PleadingStage Dismissal under Corwin due to Presence of Control Group, Vanderbilt Law Review En Banc 74 (2021), p. 61; Reder/Kolodka, Chancery Court Again Rejects Motion by Large Minority Blockholder to Dismiss Fiduciary Breach Claims under Corwin, Vanderbilt Law Review En Banc 74 (2021), p. 25; Gatti, Did Delaware Really Kill Corporate Law? Shareholder Protection in a Post-Corwin World, New York University Journal of Law & Business 16 (2020), p. 345. 44 Basho case, supra note 31. 45 Basho case, supra note 31, at pp. 66 – 67. 46 Voigt v. Metcalf, 2020 WL 614999 (Del. Ch. Feb. 10, 2020). 47 Skye Mineral Inv’rs, LLC v. DXS Capital (U.S.) Ltd., 2020 WL 881544, 70 (Del. Ch. Feb. 24, 2020).

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sitive qualitative standard that inspects realistically and holistically the power of shareholders to influence the conduct of the company.

V. Concluding Remarks The modern economy has generated new market structures and new business environments in which minority shareholders may be active. This new reality brings to the fore traditional failures known in the past with regard to controlling shareholders. The conduct of minority shareholders occasionally reflects the agency problem or the fear of misuse of power in ways that do not promote the best interest of the company and all the shareholders. Although in the usual scenario it is necessary to protect the minority from the majority, in some cases there may also be a need to restrain abusive behavior by the minority. Justice Danziger has opened the door to the development of the concept of control by minority shareholders within the framework of the duty of fairness imposed on all dominant shareholders. It is expected that this legal move will be followed up by the courts, particularly in markets that have a thriving startup industry, such as the one in Israel. Bibliography Anabtawi, Iman/Stout, Lynn A.: Fiduciary Duties for Activist Shareholders, Stanford Law Review Vol. 60, 2008, pp. 1255 – 1308. Baum, Ido/Solomon, Dov: Delaware’s Copycat: Can Delaware Corporate Law Be Emulated?, Theoretical Inquiries in Law Vol. 23, 2022, pp. 1 – 36. Bayne, David Cowan (ed.): The Philosophy of Corporate Control – A Treatise on the Law of Fiduciary Duty, Chicago 1986. Bebchuk, Lucian A./Kastiel, Kobi: The Perils of Small-Minority Controllers, Georgetown Law Journal Vol. 107, 2019, pp. 1453 – 1514. Berle, Adolf A./Means, Gardiner C.: The modern corporation & private property, New Brunswick/London 2009. Chuff, Christopher B./Cline, Joanna J./Greenberg, Matthew M./Bartholomew, Taylor B.: Controlling Stockholder or member status under Delaware law – A Table of Key Decisions, American Bar Association, 2021, available at https://www.americanbar.org/content/dam/ aba/publications/litigation_committees/businesstorts/cases/table-of-key-controller-decisions. pdf (accessed at 25. 3. 2023). Donaldson, R. Montgomery: Inside Funding Rounds in Venture-Backed Companies: The Perils of “Effective Control”, Delaware Journal of Corporate Law Vol. 43, 2019, pp. 419 – 458. Fama, Eugene F.: Agency Problems and the Theory of the Firm, Journal of Political Economy Vol. 88, 1980, pp. 288 – 307. Gatti, Matteo: Did Delaware Really Kill Corporate Law? Shareholder Protection in a Post-Corwin World, New York University Journal of Law & Business Vol. 16, 2020, pp. 345 – 418.

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Geronimo, Russell Stanley Q.: De Facto Control: Applying Game Theory to the Law on Corporate Nationality, Philippine Law Journal Vol. 90, 2017, pp. 278 – 327. Gilson, Ronald: Controlling Shareholders and Corporate Governance: Complicating the Comparative Taxonomy, Harvard Law Review Vol. 119, 2006, pp. 1641 – 1679. Gilson, Ronald J./Gordon, Jeffrey N.: Controlling Controlling Shareholders, University of Pennsylvania Law Review Vol. 152, 2003, pp. 785 – 843. Goshen, Zohar/Hamdani, Assaf: Corporate Control, Dual Class, and the Limits of Judicial Review, Columbia Law Review Vol. 120, 2020, pp. 941 – 994. La Porta, Rafael/Lopez de Silanes, Florencio/Shleifer, Andrei/Vishny, Robert W.: Investor Protection and Corporate Governance, Journal of Financial Economics Vol. 58, 2000, pp. 3 – 27. Licht, Amir: Great Power and Great Responsibility: Contours of Controlling Shareholder Responsibility (21. 12. 2018), Available at SSRN: https://ssrn.com/abstract=3082839 or http:// dx.doi.org/10.2139/ssrn.3082839 (accessed at 25. 3. 2023) (Hebrew). Lipton, Ann M.: After Corwin: Down the Controlling Shareholder Rabbit Hole, Vanderbilt Law Review Vol. 72, 2019, pp. 1977 – 2012. Ofir, Moran: Controlling Non-controlling Shareholders: The Case of Effective Control, Theoretical Inquiries in Law (TIL) Vol. 25 (1), forthcoming in 2024 (English). Ofir, Moran: Shareholder Responsibility, Effective Power, and Dispersed Ownership Structure, Hebrew U. Law Review Vol. 53, forthcoming in 2023 (Hebrew). Pollman, Elizabeth: Startup Governance, University of Pennsylvania Law Review Vol. 168, 2019, pp. 155 – 221. Rauterberg, Gabriel: The Separation of Voting and Control: The Role of Contract in Corporate Governance, Yale Journal on Regulation Vol. 38, 2021, pp. 1124 – 1181. Reder, Robert S./Dillard, Robert W.: Chancery Court Denies Pleading-Stage Dismissal under Corwin due to Presence of Control Group, Vanderbilt Law Review En Banc Vol. 74, 2021, pp. 61 – 69. Reder, Robert S./Kolodka, G. Parker: Chancery Court Again Rejects Motion by Large Minority Blockholder to Dismiss Fiduciary Breach Claims under Corwin, Vanderbilt Law Review En Banc Vol. 74, 2021, pp. 25 – 35. Stracar, Nicole: Applying a New Regulatory Framework to Interested Transactions by Minority Shareholders, University of Pennsylvania Journal of Business Vol. 20, 2018, pp. 993 – 1032.

Rethinking Oversight Duties and Responsibilities in Conglomerates By Asaf Eckstein and Gideon Parchomovsky*

I. Introduction We live in a world of conglomerates.1 In December 2021, 100 % of the largest 100 corporations on the S&P 500 were conglomerates. Also, conglomerates exist around the globe with headquarters in many countries including India (Reliance Industries), Germany (Siemens), Japan (SoftBank Group), and Australia (Wesfarmers).2 The unique structure of conglomerates, comprising a parent company with multiple subsidiaries, some of which are foreign, poses significant challenges with respect to the oversight duty of the parent. In this chapter we analyze these challenges under U.S. law, with a special emphasis on the corporate law of the State of Delaware, the favored state of incorporation for U.S. businesses since the early 1900s.3 We critically review the extant legal regime that governs parents’ liability for oversight failures. In undertaking this task, * Prof. Dr. Asaf Eckstein is an associate Professor at the Hebrew University School of Law, Israel. Prof. Dr. Gideon Parchomovsky is a Professor of Law at the University of Pennsylvania Law School and a Professor of Law at the Hebrew University School of Law, Israel. 1 We define a conglomerate as a corporate structure comprising a parent and at least one subsidiary. Our definition is broader the traditional definition of the term, which distinguishes between conglomerates and corporate groups. Conglomerates are typically defined as “a business corporation producing products or services of several industries that are unrelated with respect to raw material sources, product development, production technology, or marketing channels.” See Jacoby, The Conglomerate Corporation, Financial Analysts Journal 26 (1970), p. 35. Unlike conglomerates, business groups (or concerns which are a type of business groups common in Europe) are less diversified, sometimes concentrated in a single particular industry, and the companies operate within a business group have stronger business relationship compare to companies operate within a conglomerate; see also Khanna/Yafeh, Business Groups in Emerging Markets: Paragons or Parasites?, Journal of Economic Literature 45 (2007), p. 331. For expositional purposes and for convenience sake, we use the term “conglomerate” to refer to both types of corporate structures. We do so because the dividing line between conglomerates and corporate factors – whether the subsidiaries are in the same line of business – is of critical significance to economists and much lesser importance for legal scholars. 2 Value.Today, World Top Conglomerate Companies; Statista, World’s Largest Conglomerates as of May 22. 3 Black, Why Corporations Choose Delaware.

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we distinguish between wholly and non-wholly owned subsidiaries. We show that although the principles and doctrines that pertain to oversight liability within individual corporations are serviceable in the context of conglomerates, they need to be adapted to the unique characteristics of corporate families. Conglomerates are special in that they give rise to internal spillover effects. The fate of individual corporations within the group can affect the fortunes of the group as a whole, and its myriad stakeholders. For these reasons, we reject the enterprise liability approach, espoused by leading scholars of the subject,4 which views all the corporations in a conglomerate as a single entity. We argue that this approach might lead to the demise of conglomerates. In its stead, we tailor an innovative liability regime for conglomerates.

II. Conglomerates The modern corporate world is populated by standalone corporations and conglomerates. While standalone corporations are often the relevant unit of analysis in standard corporate law classes, the lion’s share of public corporations in the U.S. consist of conglomerates, or families of corporations. The proliferation of conglomerate in the U.S. corporate world has far-reaching legal implications. It gives rise to an intricate web of responsibilities and fiduciary duties that do not exist in standalone corporations. In this context, it is critical to draw a distinction between directors and officers in wholly-owned corporations who, under Delaware law, owe a fiduciary duty to the parent, and directors and officers in non-wholly owned subsidiaries, whose duties are owed to the subsidiary. Similarly, in corporate families, the misconduct of a single subsidiary can lead to the imposition of liability on other members of the group, first and foremost, the parent. Naturally, misconduct also occurs in standalone corporations, but there is an important difference: in a standalone corporation, misconduct might result in the collapse of the company, whereas in conglomerates, misconduct by a single subsidiary may result in the demise of the entire group. This challenge is amplified by the fact that many conglomerates are have subsidiaries in foreign countries. The international nature of conglomerates is not surprising. The expansion to foreign countries is driven by the desire to take advantage of local ex4 Dean Blumberg should rightfully be viewed as the premier conglomerate scholar. His monumental body of work on the subject includes: Blumberg, The Law of Corporate Groups: Procedural Problems in the Law of Parent and Subsidiary Corporations; Blumberg, Limited Liability and Corporate Groups, Journal of Corporation Law 11 (1986); Blumberg, Law of Corporate Groups: Problems of Parent and Subsidiary Corporations Under Statutory Law of General Application; Blumberg/Strasser, Law of Corporate Groups: Problems of Parent and Subsidiary Corporations Under Statutory Law Specifically Applying Enterprise Principles; Blumberg, The Multinational Challenge to Corporation Law: The Search for a New Corporate Personality; Blumberg/Strasser, Law of Corporate Groups: Problems of Parent and Subsidiary Corporations Under State Statutory Law; Blumberg, The Law of Corporate Groups, Connecticut Law Review 37 (2005).

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pertise or lower production costs (or both). While the decision to acquire or incorporate foreign subsidiaries yields important potential benefits to the group, it is also fraught with peril. Operating in a foreign environment requires conglomerates to adjust to unfamiliar business cultures and new legal and regulatory regimes. Furthermore, those legal environments may not be as congenial to the group as its home country.5 The international scope of operations of conglomerates gives rise to a dual challenge. First, from a pure business perspective, operating in a foreign country requires management to acquaint itself with an unfamiliar market environment whose defining characteristics are different from those of the home market. As importantly, conglomerates with international subsidiaries must adjust to a new commercial culture, with which they are not familiar. Business strategies that have proven themselves countless times in the home country, may not fail completely in foreign countries. Chancellor Strine explained the special challenge faced by directors on international corporations as follows: “if the assets are in Russia, if they’re in Nigeria, if they’re in the Middle East, if they’re in China, that you’re not going to be able to sit in your home in the U.S. and do a conference call four times a year and discharge your duty of loyalty. That won’t cut it. That there will be special challenges that deal with linguistic, cultural, and others in terms of the efforts that you have to put in to discharge your duty of loyalty.”6

Then, Chancellor Strine proceeded to admit that there are many corporations on the boards of which he would not serve either “because the industry’s too complex” or because “all the flow of information is in the language that I don’t understand, in a culture where there’s, frankly, no [adequate] legal strictures of structures or ethical mores …”7 The second challenge is legal. Operating in a foreign country not only requires parent companies to educate themselves about local laws and regulations, but also to adopt complex monitoring mechanisms to ensure compliance with said laws and regulations. This challenge has proven to be especially acute for U.S. conglomerates, in light of the increased tendency of the U.S. enforcement agencies to step up their efforts to investigate and bring criminal charges against conglomerates for various compliance violations. Over the last two decases, the U.S. Department of Justice (“DOJ”), Securities and Exchange Commission (“SEC”), Environmental Protection Agency 5 Froese/Sutherland/Lee/Liu, Challenges for International Companies in China: Implications for Research and Practice, Asian Business & Management 18 (2019), p. 252: “China appears to be using domestic legal, regulatory and government interventions to favor its domestic firms.” 6 In re Puda Coal, Inc. Stockholders Litigation, C.A. No. 6476-CS, at 21 (Del. Ch. 6. 2. 2013). 7 In re Puda Coal, Inc. Stockholders Litigation, C.A. No. 6476-CS, at 22 (Del. Ch. 6. 2. 2013).

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(“EPA”), Federal Trade Commission (“FTC”), Internal Revenue Service (“IRS”) and other enforcement authorities have enhanced criminal enforcement against conglomerates. By and large, these efforts resulted in plea bargains, deferred prosecution agreements and other settlements, under which the investigated conglomerates have agreed to pay substantial amounts of money in fines and disgorgement of profits to avoid going to court. The amounts range from millions to billions of dollars. These criminal investigations and proceedings typically trigger shareholder derivative suits against directors and officers on the theory that they breached their oversight duties. The derivative suits do not target only the director and officers of the subsidiary where the problem occurred but also those of the parent who were tasked with the duty to monitor the operations of said subsidiary. This means that directors who sit on a board of parent in a conglomerate with foreign subsidiaries must acquaint themselves with the laws and regulations of the countries in which subsidiaries operate. In addition, they must adopt effective oversight mechanisms to ensure adequate response to red flags. It should be noted, at this point, that the oversight responsibilities of a parent board are far more complicated than those of a board of a standalone corporation. The challenge is obviously compounded by the existence of foreign subsidiaries. 1. A Parent’s Liability for a Subsidiary’s Misdeeds In the case of single corporations, each is responsible for its misconducts. In corporate families, a parent may be held responsible for a subsidiary’s misdeeds. There are three legal routes to achieve this goal: direct liability, agency, and enterprise liability. The conditions for imposing direct liability on a parent for the misdeeds of a subsidiary were summarized in an oft-cited article from 1929, (then) Professor William O. Douglas and Professor Shanks. Douglas and Shanks suggested that direct liability should attach to a parent when “a parent is directly a participant in the wrong complained of.”8 Ownership of stock cannot be the sole basis for imposing liability.9 It must be shown that the parent used its power “to accomplish a certain result [to make] the parent a participator in or the doer of the act.”10 This happens when there is “interference in the internal management of the subsidiary; an overriding of the discretion of the managers of the subsidiary.”11 As examples, Douglas and 8 Douglas/Shanks, Insulation from Liability Through Subsidiary Corporations, The Law Journal 39 (1929), p. 208. 9 Douglas/Shanks, Insulation from Liability Through Subsidiary Corporations, The Law Journal 39 (1929), pp. 208 – 209. 10 Douglas/Shanks, Insulation from Liability Through Subsidiary Corporations, The Law Journal 39 (1929), p. 209. 11 Douglas/Shanks, Insulation from Liability Through Subsidiary Corporations, The Law Journal 39 (1929), p. 209.

Yale Yale Yale Yale

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Shanks list cases in which a parent uses its latent power to cause a subsidiary to breach a contract or to commit a tort.12 Douglas and Shanks further posited, based on their analysis of the caselaw, that the “intervention or intermeddling by the parent in the affairs of the subsidiary and more particularly in the transaction involved” must exceed “the normal and orderly procedure of corporate control carried out through the election of the desired directors and officers of the subsidiary and the handling by them of the direction of its affairs.”13 As commentators have correctly pointed out, an agency relationship need not always be general; a subsidiary may serve as an agent of a parent for a specific transaction.14 The contours of transaction specific agency were delineated by Judge Hand in Kingston Dry Dock Co. v. Lake Champlain Transportation Co.,15 a case in which a contract creditor of a parent sought to sue its subsidiary. Judge Hand wrote that for a corporation to be considered an actor in a given transaction or a business, “it must take immediate direction of the transaction through its officers, by whom alone it can act at all.” He immediately proceeded to add that “liability normally must depend upon the parent’s direct intervention in the transaction, ignoring the subsidiary’s paraphernalia of incorporation, directors and officers. The test is therefore rather in the form than in the substance of the control; in whether it is exercised immediately, or by means of a board of directors and officers, left to their own initiative and responsibility in respect of each transaction as it arises.”16 Judge Hand further recognized that a parent may be liable for the acts of its subsidiary if it supervised the execution of a specific transaction.17

12 Douglas/Shanks, Insulation from Liability Through Subsidiary Corporations, The Yale Law Journal 39 (1929), p. 208: “The parent has been held liable in a tort action for inducing the subsidiary by means of its stock ownership to breach a contract with the plaintiff.” 13 Douglas/Shanks, Insulation from Liability Through Subsidiary Corporations, The Yale Law Journal 39 (1929), p. 209. Douglas and Shanks also suggested that in order to avoid liability a parent must abide by the following four principles. First, the parent must set up and maintain the subsidiary as a separate entity, adequately financed to sustain normal business pressures and risks. Second, the daily operations of the two corporate entities should be kept apart. Third, barriers between the managements of the two corporations should be set and maintained and the meetings of the two boards should be kept distinct. Fourth, the two corporate entities should not be represented as a single unit to those with whom they interact. Douglas/Shanks, Insulation from Liability Through Subsidiary Corporations, The Yale Law Journal 39 (1929), pp. 196 – 197. 14 See e. g., Phx. Can. Oil Co. v. Texaco, Inc., 842 F.2d, at 1477 (3d Cir. 1988), pointing out that a subsidiary can act as a parent’s agent “in the course of one or more specific transactions.” 15 Kingston Dry Dock Co. v. Lake Champlain Transportation Co., 31 F.2d, at 267 (2d Cir. 1929). 16 Kingston Dry Dock Co. v. Lake Champlain Transportation Co., 31 F.2d, at 265 (2d Cir. 1929). 17 Kingston Dry Dock Co. v. Lake Champlain Transportation Co., 31 F.2d, at 265 (2d Cir. 1929).

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The application of the doctrine of direct participation led to the imposition of liability on a parent for the misconduct of a subsidiary in a myriad of legal contexts, including “patent or copyright infringement, false advertising, fraud, conversion and the creation of nuisance.”18 Two other, closely related, legal doctrines that may be used to impose liability on a parent for the acts of a subsidiary are agency and enterprise liability. Under both doctrines, however, the liability of the parent is considered derivative, rather than direct. We analyze them in order. Under general agency principles, if a subsidiary acts as a parent’s agent and engages in wrongdoing, the parent would be liable for the harm caused by the subsidiary’s actions. The imposition of liability on a parent typically requires a showing of a high degree of control of the parent over the subsidiary. In Berkey v. Third Ave. Ry. Co., Justice Cardozo, writing for the New York Court of Appeal, stated that for a parent to bear liability for the actions of a subsidiary, its dominion over the subsidiary must be “so complete” and “[the] interference [in its affairs] so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent.”19 Although Berkey was a veil-piercing case, its influence extends far beyond this context, and Justice Cardozo’s instruction is deemed applicable to all agency cases. Indeed, as the district court for the Southern District of New York summarized the matter in In re Parmalat Sec. Litig.,20 “[t]he element of control often is deemed the essential characteristic of the principal-agent relationship. To bind a principal, an agent must have authority, whether apparent, actual, or implied.”21 The Restatement (Third) of Agency likewise provides that for there to be a principal-agent relationship, “an essential element of agency is the principal’s right to control the agent’s actions,”22 and the principal must possess “the right throughout the duration of the relationship to control the agent’s acts.”23 The precise meaning of the term control standard was explicated by the D.C. Circuit in Transamerica Leasing, Inc. v. La Republica de Venezuela.24 This case involved a suit against a Venezuelan shipping company, alleging that it was a mere instrumentality of the Venezuelan government, and thus, the government was responsible for contract breaches committed by the company. The D.C. Circuit ruled that for there to exist a principal-agent relationship between a parent and a subsidiary the following four conditions must obtain: (a) the parent must manifest its will the subsidiary acts on its behalf; (b) the subsidiary must agree to do so; (c) the parent retains a right to 18

Esmark, Inc. v. National Labor Relations Board, 887 F. 2d, at 755 (7th Cir. 1989). Berkey v. Third Avenue Railway Co., 244 N.Y., at 602 (1927). 20 In re Parmalat Securities Litigation, 375 F. Supp. 2d, at 290 (S.D.N.Y. 2005), (quoting Cromer Fin. Ltd. v. Berger, 245 F. Supp. 2d, at 559 (S.D.N.Y. 2003)). 21 In re Parmalat Securities Litigation, 375 F. Supp. 2d, at 290 (S.D.N.Y. 2005). 22 Restatement (Third) of Agency § 1.01 cmt. F(1) (Am. Law Inst. 2006). 23 Restatement (Third) of Agency § 1.01 cmt. C (Am. Law Inst. 2006). 24 Transamerica Leasing, Inc. v. La Republica De Venezuela, 200 F.3d, at 843 (2000). 19

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control the subsidiary with respect to matters entrusted to it; and (d) the exercise of control by the parent must be more direct than by voting its shares in the subsidiary or appointing its directors.25 The Delaware courts developed a somewhat different set of factors to determine whether a parent has the requisite degree of control over a subsidiary for a principalagent relationship to arise, including: “the extent of overlap of officers and directors, methods of financing, the division of responsibility for day-to-day management, and the process by which each corporation obtains its business.”26 Under Delaware law, no single factor is essential or outcome determinative.27 The focus is on the combination of elements.28 Another path to the imposition of liability on a parent for the actions of a subsidiary is through the concept of enterprise liability. In the previous century, the theory of enterprise liability gained considerable sway among commentators and courts.29 The concept originated in a 1947 article by Adolph Berle.30 Berle was of the opinion that ascribing a separate legal entity to corporations and allowing them to enjoy limited liability were unproblematic in the case of standalone corporations. Conglomerates were different, though. The corporations comprising a conglomerate operated in unison in pursuit of a single goal. He was particularly concerned that subsidiaries would be set up to engage in risky ventures, while the parent, the main beneficiary from those activities, would be sheltered from liability.31 To avert this result, Berle proposed using the concept of enterprise liability, which would enable holding a parent accountable for the actions of its subsidiaries.32 25

Transamerica Leasing, Inc. v. La Republica De Venezuela, 200 F.3d, at 843 (2000). Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F. Supp., at 1463 (D. Del. 1991); see also Rovi Corp. V. Haier Grp. Corp., No. 11 – 1140, 2013 WL 4534641, at *3 (D. Del. 23. 8. 2013); E.I. du Pont de Nemours & Co. v. Agfa-Gavaert NV, 335 F. Supp. 3d, at 670 (D. Del. 2018); Telcordia Techs., Inc. v. Alcatel S.A., No. 04 – 874 GMS, 2005 U.S. Dist. LEXIS 10194, at *8 – 9 (D. Del. 27. 5. 2005). 27 Applied Biosystems, 772 F. Supp. at 1463. 28 Applied Biosystems, 772 F. Supp. at 1463. 29 Blumberg, The Increasing Recognition of Enterprise Principles in Determining Parent and Subsidiary Corporation Liabilities, Connecticut Law Review 28 (1996), p. 296. 30 Berle, The Theory of Enterprise Entity, Columbia Law Review 47 (1947). 31 Berle, The Theory of Enterprise Entity, Columbia Law Review 47 (1947), p. 344. See also Hansmann/Kraakman, Toward Unlimited Shareholder Liability for Corporate Torts, The Yale Law Journal 100 (1991), p. 1917. 32 Berle, The Theory of Enterprise Entity, Columbia Law Review 47 (1947). As Meredith Dearborn correctly notes “there may be more than one understanding of this term. Some commentators use ‘enterprise’ liability to refer to horizontal piercing claims – where the assets of one subsidiary are accessed to pay the debts of a sister subsidiary. However, most commentators agree that ‘enterprise’ refers to the unified economic group of corporations, and “entity” refers to the single, legal form of the corporation.” See Dearborn, Enterprise Liability: Reviewing and Revitalizing Liability for Corporate Groups, California Law Review 97 (2009), p. 200 & fn. 38 (internal citations omitted). 26

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Greg Keating defined enterprise liability as “a general and distinctively modern theory of strict liability”33 predicated on “the maxim that those who profit from the imposition of risk.”34 Elaborating on this notion, Rory Van Loo explained that enterprise liability “was seen as a means of breaking through increasingly complex and diffuse corporate structures to hold the larger corporation responsible.”35 The concept of enterprise liability has grown in popularity since the concept was conceived by Berle. There were even attempts statutorily to impose liability on corporate parents for the wrongdoing of their subsidiaries. The two best known examples are the Employee Retirement Income Security Act (ERISA)36 and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).37 According to one commentator, ERISA is “is a canonical example of enterprise principles in a federal regulatory context.”38 Inter alia, the statute addresses employer contributions to employee retirement plans. In this respect, it imposes liability on employers for terminating their participation in a program. A major concern was that parent corporations might set up subsidiaries to avoid their statutory obligation. To address this concern, Congress provided in section 1301(b)(1) that “all employees of trades or businesses (whether or not incorporated) which are under common control shall be treated as employed by a single employer and all such trades or businesses as a single employer.”39 In treating all corporation “under common control” as a single entity, the section effectively establishes an enterprise liability regime. It was likewise believed that CERCLA too establishes enterprise liability with respect to the clean-up costs of polluted sites. A series of rulings in the 1990s was interpreted by commentators to suggest that enterprise liability would soon govern liability for environmental harms.40 However, these hopes were dashed by the Supreme Court’s decision in U.S. v. Bestfoods. In Bestfoods, the government sought to bring an action under section 107(a)(2) of CERCLA against CPC International Inc., the parent of Ott Chemical Co., for the cleanup costs of a chemical plant the defunct subsidiary 33

Keating, The Theory of Enterprise Liability and Common Law Strict Liability, Vanderbilt Law Review 54 (2001), p. 1287. 34 Keating, The Theory of Enterprise Liability and Common Law Strict Liability, Vanderbilt Law Review 54 (2001), p. 1287. 35 Van Loo, The Revival of Respondeat Superior and Evolution of Gatekeeper Liability, Georgetown Law Review 109 (2020), pp. 152 et seq. 36 29 U.S.C. § 1001 – 1461 (2012). 37 42 U.S.C. § 9601 – 9674 (1988 & Supp. V 1993). 38 Dearborn, Enterprise Liability: Reviewing and Revitalizing Liability for Corporate Groups, California Law Review 97 (2009), p. 240. 39 29 U.S.C. §1301(b)(1). 40 Blumberg, The Increasing Recognition of Enterprise Principles in Determining Parent and Subsidiary Corporation Liabilities, Connecticut Law Review 28 (1996), p. 296; Menell, Legal Advising on Corporate Structure in the New Era of Environmental Liability, Columbia Business Law Review 1990, p. 406 et seq.; Schipani, Infiltration of Enterprise Theory into Environmental Jurisprudence, Journal of Corporation Law 22 (1997), p. 619.

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owned and operated.41 The Supreme Court, per Justice Souter, commenced its opinion by reiterating that “[i]t is a general principle of corporate law deeply ‘ingrained in our economic and legal systems that a parent corporation (so-called) because of control through ownership of another corporation’s stock) is not liable for the acts of its subsidiaries.”42 At the same time, “a corporate parent that actively participated in, and exercised control over, the operations of the facility itself may be held directly liable in its own right […] as an operator of the facility.”43 The enactment of CERCLA, said the Court, did not change the corpus of state corporate law44 “and the failure of the statute to speak to a matter as fundamental as the liability implications of corporate ownership demands application of the rule that ‘[i]n order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law.’”45 Therefore, liability can be imposed on the parent, CPC International Inc., only if it comes within the definition of the term “operator” under CERCLA,46 or if an agent of the parent managed or directed the polluted facility.47 The fact that “dual officers and directors made policy decisions and supervised activities at the facility” does not suffice to establish liability.48 The Court’s decision in Bestfoods made it significantly more difficult to assign liability to a parent for the acts of a subsidiary not only under CERCLA, but also under other statutes, stymying “a promising statute-based avenue for adapting respondeat superior to an economy marked by fragmented business structures.”49 Rory Van Loo reported that “observers view Bestfoods as making subsidiaries more appealing and giving “the enterprise a substantial chance to essentially judgment proof itself.”50 This observation has been empirically corroborated in a recent study. Sharon Belenzon, Honggi Lee, and Richard Patacconi have studied the effect of enterprise liability on asset portioning and corporate group growth in sixteen countries all over the world. They found “that weaker enterprise liability encourages corporations (i) to more finely partition their assets into separate legally independent units and (ii) to grant these units more decision-making autonomy.”51 Interestingly, 41

United States v. Bestfoods, 524 U.S. (1998), at 51. United States v. Bestfoods, 524 U.S. (1998), at 61 (quoting Douglas/Shanks, Insulation from Liability Through Subsidiary Corporations, The Yale Law Journal 39 (1929), p. 193). 43 United States v. Bestfoods, 524 U.S. (1998), at 55. 44 United States v. Bestfoods, 524 U.S. (1998), at 63. 45 United States v. Bestfoods, 524 U.S. (1998), at 63 (quoting United States v. Texas, 507 U.S., at 534 (1993) (internal quotation marks omitted)). 46 United States v. Bestfoods, 524 U.S. (1998), at 66. 47 United States v. Bestfoods, 524 U.S. (1998), at 71. 48 United States v. Bestfoods, 524 U.S. (1998), at 69 et seq. 49 Van Loo, The Revival of Respondeat Superior and Evolution of Gatekeeper Liability, Georgetown Law Review 109 (2020), p. 153. 50 Bainbridge, Abolishing Veil Piercing, Journal of Corporation Law 26 (2001), p. 530. 51 Belenzon/Lee/Patacconi, Towards a Legal Theory of the Firm: The Effects of Enterprise Liability on Asset Partitioning, Decentralization and Corporate Group Growth. 42

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Dearborn suggested that although courts could not simply impose enterprise liability in regulatory cases in the aftermath of Bestfoods, they worked around the decision by granting veil piercing more easily “in cases involving a federal statute or a particularly important federal policy.”52 2. The Duty of Oversight Building upon the above analysis, in this section we will discuss the duty of conglomerate’s parent to oversee its subsidiaries. Oversight liability has won itself the distinction of being “the most difficult theory in corporation law upon which a plaintiff might hope to win a judgment.”53 Under Delaware caselaw, liability for oversight failure will be imposed on directors if they refrained, in bad faith, from implementing a reporting system within the corporation, or abstained from monitoring the information within the system. The doctrine of oversight liability originated in the case of In re Caremark Litigation Inc. Derivative Litigation.54 The case arose from an investigation launched by the DOJ into Caremark’s practice of paying doctors in exchange for referrals.55 Caremark ultimately agreed to pay approximately $250 million to settle the case.56 The Delaware Court of Chancery approved the settlement.57 En route to this result, Chancellor Allen opined that “only a sustained or systematic failure of the board to exercise oversight – such as an utter failure to attempt to assure a reasonable information and reporting system exits – will establish the lack of good faith that is a necessary condition to liability.”58 Professor Jennifer Arlen suggested that “Chancellor Allen recognized that this standard of review largely eliminated any serious threat of director liability,”59 yet he believed that the decision would “induce greater oversight over legal compliance

52 Dearborn, Enterprise Liability: Reviewing and Revitalizing Liability for Corporate Groups, California Law Review 97 (2009), p. 237. 53 In re Caremark International Inc. Derivative Litigation, 698 A.2d, at 967 (Del. Ch. 1996). 54 In re Caremark International Inc. Derivative Litigation, 698 A.2d, at 970 (Del. Ch. 1996). 55 In re Caremark International Inc. Derivative Litigation, 698 A.2d, at 963 (Del. Ch. 1996). 56 In re Caremark International Inc. Derivative Litigation, 698 A.2d, at 960 – 61 (Del. Ch. 1996). 57 In re Caremark International Inc. Derivative Litigation, 698 A.2d, at 959, 972 (Del. Ch. 1996). 58 In re Caremark International Inc. Derivative Litigation, 698 A.2d, at 971 (Del. Ch. 1996). 59 See Arlen, in: Ramseyer (ed.), Corporate Law Stories, p. 326.

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because … directors would comply with a clearly articulated duty even if not threatened with liability.”60 A decade later, the Delaware Supreme Court refined the standard of liability in Stone v. Ritter.61 In Stone, the shareholders of the AmSouth Bancorporation brought a derivative suit against the directors of the company, alleging that they failed to detect various violations of the federal Bank Secrecy Act and various anti-money-laundering regulations by company employees that triggered a $50 million fine.62 The Chancery Court refused to impose liability on the directors based on Caremark.63 On appeal, the Delaware Supreme Court affirmed.64 It added that liability for oversight will arise only in cases of utter failure on the part of the board to ensure the existence of information-reporting systems or if the board consciously elected to ignore red-flags that were brought to its attention.65 As Christine Hurt has pointed out, in the Stone case, the Delaware Supreme Court situated the oversight duty into the duty of loyalty.66 Consequently, under Delaware law, plaintiffs who bring oversight claims face an uphill battle. As professor Megan Shaner correctly observed, directorial liability for violations of oversight obligations requires a showing of scienter.67 Professors Claire Hill and Brett McDonnel further noted that liability for failure to monitor necessitates bad faith, defined as “an intentional failure to act in conscious disregard of one’s duty to act.”68 Failures to act, however, are invariably passive.69 Consequently, only in rare cases will plaintiffs succeed on oversight failures claims.70 Hill and McDonnel proceeded to criticize the Caremark test as it was construed in Ritter. They posit that the financial crisis of 2008 proved that corporate boards failed to perform their mon-

60

Arlen, in: Ramseyer (ed.), Corporate Law Stories, p. 326. See Stone ex rel. AmSouth Bancorporation v. Ritter, 911 A. 2d, at 362 (Del. 2006). 62 Stone ex rel. AmSouth Bancorporation v. Ritter, 911 A. 2d, at 365 (Del. 2006). 63 Stone ex rel. AmSouth Bancorporation v. Ritter, 911 A. 2d, at 364 – 65 (Del. 2006). 64 Stone ex rel. AmSouth Bancorporation v. Ritter, 911 A. 2d, at 365 (Del. 2006). 65 Stone ex rel. AmSouth Bancorporation v. Ritter, 911 A. 2d, at 370 (Del. 2006). 66 Hurt, The Duty to Manage Risk, Journal of Corporation Law 39 (2014), p. 280. 67 Shaner, The (Un)Enforcement of Corporate Officers’ Duties, U.C. Davis Law Review 48 (2014), p. 306 et seq. 68 Hill/McDonnell, Reconsidering Board Oversight Duties After the Financial Crisis, University of Illinois Law Review 2013, p. 859. 69 Hill/McDonnell, Reconsidering Board Oversight Duties After the Financial Crisis, University of Illinois Law Review 2013, p. 859: “[C]onceptually, grammatically, and logically, most examples of ‘failures’ that come readily to mind are passive, not active.” 70 Hill/McDonnell, Reconsidering Board Oversight Duties After the Financial Crisis, University of Illinois Law Review 2013, p. 859, noting that the precise formulation adopted in Ritter makes is extremely difficult for plaintiffs to prevail. 61

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itoring duties adequately, allowing corporations to generate “enormous negative externalities for the greater society.”71 Professor Donald Langevoort, by contrast, defended the Caremark test for taking account of the complexity of the modern corporate world and the inherent limitations faced by boards: “As many corporate governance scholars have come to accept, corporations are complex interactive systems of processes, routines, and feedback, the efficacy of which cannot be taken for granted and hence becomes the crucial focus of the CEO and senior management team. The overwhelming complexity is daunting – perhaps beyond even the collective brainpower of the C-suite to comprehend – yet can and must be managed to the extent possible. Like all enterprise risks, compliance risks emerge, move, and change in ways not always visible within the architectural sight lines of the firm. It is at least arguable that independent directors do not have the capacity to engage with this complexity, so that Caremark was wise to demand almost nothing beyond asking that some compliance system exists. Independent boards have limited time, attention, and expertise, which should thus be deployed only when and where most useful.”72

The scholarly interest in oversight liability has intensified in the last three years. In 2019 – 2020, four cases involving Caremark claims – Marchand v. Barnhill,73 In re Clovis Oncology, Inc. Derivative Litig.,74 Hughes v. Hu75 and Teamsters Local 443 Health Servs. & Ins. Plan v. Chou76 – survived motions to dismiss. This prompted Professor Stephen Bainbridge to wonder: “Is Caremark still the hardest claim for plaintiffs to win in corporate law?”77 Bainbridge was not alone. Professor Roy Shapira asked the same question and answered it affirmatively. In 2021, a fifth case, In Re the Boeing Company Der. Lit.78 joined the list after passing the motion to dismiss stage.79

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Hill/McDonnell, Reconsidering Board Oversight Duties After the Financial Crisis, University of Illinois Law Review 2013, p. 859. 72 Langevoort, Caremark and Compliance: A Twenty-Year Lookback, p. 729. 73 Marchand v. Barnhill, 212 A.3d, at 809 (Del. 2019). 74 In re Clovis Oncology, Inc. Derivative Litig., C.A. No. 2017 – 0222-JRS, 2019 WL 4850188, at *6 (Del. Ch. 1. 10. 2019). 75 Hughes v. Hu, No. 2019 – 0112-JTL, 2020 WL 1987029 (Del. Ch. 27. 4. 2020). 76 Teamsters Local 443 Health Servs. & Ins. Plan v. Chou, No. 2019 – 0816-SG, 2020 WL 5028065 (Del. Ch. 24. 8. 2020). 77 Bainbridge, Is Caremark Still the Hardest Claim for Plaintiffs to Win in Corporate Law?. 78 In Re the Boeing Company Der. Lit., C.A. No. 2019 – 0907-MTZ (7. 9. 2021). 79 To complete the picture, there are a few other cases that survived a motion to dismiss. See In re Massey Energy Co. Derivative & Class Action Litig., No. 5430-VCS, 2011 WL 2176479 (Del. Ch. 31. 5. 2011); La. Mun. Police Emps. Ret. Sys. V. Pyott, 46 A.3d, at 313 (Del. Ch. 2012), overruled on other grounds; Pyott v. La. Mun. Police Employees’ Ret. Sys., 74 A.3d, at 612 (Del. 2013). For further reading see, e. g., Pollman, Corporate Oversight and Disobedience, Vanderbilt Law Review 72 (2019), p. 2013.

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Unsurprisingly, one of the five cases, Chou, involved wrongdoing by a subsidiary. The case of In re Clovis Oncology arose after AmerisourceBergen Corporations (“ABC”) acquired Oncology Supply Pharmacy Services (“Pharmacy”). Pharmacy owned a direct subsidiary, Specialty, whose business was to acquire overfilled vials of oncology medications, pool the overfills that were not intended for patient use, and sell them illegally to cancer patients. In 2017, the DOJ launched an investigation into the matter. As part of a civil settlement with the DOJ, ABC agreed to pay $625 million.80 In 2019, a group of ABC shareholders sued in the Delaware Court of Chancery, claiming that ABC’s directors and several of its officers failed to implement compliance policies and monitoring systems that covered its subsidiaries, and thereby breached their oversight duties. The court denied the defendants’ motion to dismiss, holding that they ignored red flags in the form of an outside counsel report that pointed to gaps in Specialty’s “mission critical compliance mechanisms,” a qui tam suit filed by Specialty’s COO, which exposed the illegal use of overfills, and a subpoena the DOJ served on Specialty.81 In a recent article, Chief Justice Veasy and Justice Norman of the Delaware Supreme Court described the oversight responsibilities of directors as follows: “To oversee the corporation’s activities effectively, directors must ensure they have sufficient knowledge and information about the corporation’s business, especially its missioncritical operations, and compliance programs that are required by state and federal law. The board’s oversight responsibilities also require it to establish and monitor programs relating to matters such as cybersecurity, data-privacy, ESG, and, most recently, COVID-19.”82

Naturally, as the corporate structure becomes more complicated, so does the task of directors. As the number of subsidiaries grows, the parent’s board will find it increasingly difficult to implement compliance and reporting systems that ensure adequate information flows within the group. The oversight challenge is compounded in conglomerates comprising entities specializing in different lines of business. In such cases, the task of the parent’s board is not limited to a single mission critical operation, but rather to multiple mission critical operations. To discharge its oversight duties the parent board must acquaint itself with a complex web of laws and regulations, lest it misses or misconstrues a red a flag. Of course, the parent board need not perform all information gathering tasks alone. It can rely on the subsidiaries’ boards, officers, committees, accountants, and counsels. But ultimately the responsibility of overseeing the operations of the entire group lies with the parent board. Overseeing the operations of a conglomerate is an arduous task. It becomes daunting when one or more of the entities are based or operating in foreign countries. 80 U.S. Dep’t of Just, Press Release, AmerisourceBergen Corporation Agrees to Pay $625 Million to Resolve Allegations That it Illegally Repackaged Cancer-Supportive Injectable Drugs to Profit From Overfill. 81 Teamsters Local 443 Health Servs. & Ins. Plan v. Chou, No. 2019 – 0816-SG, 2020 WL 5028065, at. *19 – 24 (Del. Ch. 24. 8. 2020). 82 Veasey/Holland, Caremark at the Quarter-Century Watershed, The Business Lawyer 76 (2020 – 2021), p. 27.

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3. Rethinking Oversight Duties and Responsibilities in Conglomerates The detection of problems, misconduct, and legal violations is among the foremost challenges facing conglomerates. Failure to detect and respond to wrongdoing can expose the corporation to severe criminal sanctions and its board and management to derivative actions. Hence, it is not surprising that firms expend considerable resources on compliance.83 Richard Cyert and James March observed that a significantly greater percentage of managerial resources is allocated to internal matters than to external interactions of the firm.84 Similarly, Professor Veronica Root Martinez reports that “organizations from all over the world, out of fear of sanction, harm, retribution, or ridicule, initiate programs aimed at making certain that their employees and members maintain compliance with external and internal norms and requirements.”85 Despite the best efforts of firms to achieve a perfect level of compliance, the results are at best mixed.86 Detecting wrongdoing within medium size and large corporations is not as easy as it may seem. Corporations are complex organizations that are characterized by a very large number of internal and external interactions. All it takes is one errant employee to get a corporation in trouble. Overseeing the operations of the firm is a primary responsibility of the board. As part of this task, the board is in charge of identifying misconduct within the organization. But the board cannot be realistically expected to detect and respond to every illegal act committed within the firm. The board has inherent limitations. It is not omniscient and it must allocate its finite resources to other tasks, as well. The Caremark test reflects this understanding. Under Caremark, liability for breach of oversight duties will be imposed on a director if she utterly failed to implement a reporting system or consciously failed to monitor its operations.87 Although Caremark does not specify which reporting system should be implemented, the expectation is that the reporting system selected by the board would correspond to the size of the corporation and the scale of its operations. Yet, the decision which system to implement is a business decision protected by the business judgment rule.88 The Caremark standard also ensures that only directors who violated their good faith obligations to the corporation would bear liability for failure to monitor. 83 Laufer/Caulfield, Wall Street and Progressivism, Yale Journal on Regulation Bulletin 37 (2019), p. 42: “[A]n estimated 15 % to 20 % of the operating costs of financial institutions going to governance, risk, and compliance (GRC) expenditures.” 84 Cyert/March, A Behavioral Theory of the Firm, p. 205 et seq. 85 Root, The Compliance Process, Indiana Law Journal 94 (2019), p. 205. 86 Root, The Compliance Process, Indiana Law Journal 94 (2019), p. 205: “[E]very year seems to bring another set of significant scandals within organizations”. 87 Stone ex rel. AmSouth Bancorporation v. Ritter, 911 A. 2d, at 370 (construing the Caremark standard). 88 In re Caremark International Inc. Derivative Litigation, 698 A.2d, at 970 (Del. Ch. 1996): “Obviously the level of detail that is appropriate for such an information system is a question of business judgment”.

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This would happen when a red flag is waved and a director consciously disregards it.89 The Caremark test has been criticized for being overly protective of boards. Although this criticism may be relevant in the case of standalone corporations, we maintain that it is the right standard for assigning liability to the parent’s board in a conglomerate. The entities within a conglomerate sometimes operate in different industries and are subject to different regulatory regimes. Each entity has its own board that is tasked with the duty of overseeing its operations. The parent’s board is required to ensure compliance within the entire group. To perform this duty, it must rely on the subsidiaries’ boards and the reporting system they choose to implement within each subsidiary. If a subsidiary board fails to detect misconduct inside it, chances are that the parent board will not know of it and will fail to address it. Under Delaware law, the parent is expected to respond to red flags. This expectation is completely justified. However, the definition of a red flag may be different in the case of a conglomerate. The parent’s board is the ultimate address for all the complaints arising within the group. As Herbert Simon pointed out “a wealth of information creates a poverty of attention.” The attention of the board is a scarce resource, which must be carefully allocated. Thus, it may make sense to require the parent board not to miss major red flags. Directors are not expected to proactively search for red flags. They must act, however, when a red flag is brought to their attention. The decisions in Caremark, Stone, and Citibank underscore that the flags should be clear, significant, and noticeable. We would like to emphasize that our proposal is not meant to leave smaller problems unaddressed. It must be borne in mind that every entity in a conglomerate has its own board and under Caremark, it is expected to respond to red flags that arise within it.90 The scope of the parent’s board oversight obligations must be tailored to the organizational reality of the conglomerate.91 While the protective Caremark standard governs the civil liability of directors and officers of the parent, it is irrelevant to the criminal liability of the parent itself. In the last two decades, there has been a spike in the enforcement actions by the Department of Justice (“DOJ”) and other federal agencies against corporations.92 These enforce89

Stone ex rel. AmSouth Bancorporation v. Ritter, 911 A. 2d, at 370. In this respect it is worth referring to the Model Bus. Corp. Act Annotated § 8.31 Official Comment at 8 – 238: “This duty is not a component of ongoing oversight, and does not entail proactive vigilance, but arises when, and only when, particular facts and circumstances of material concern… suddenly surface.” 91 Burch, Director Oversight and Monitoring: The Standard of Care and the Standard of Liability Post-Enron, Wyoming Law Review 6 (2006), p. 496: “[D]irectors cannot ignore red flags generated by internal control systems if those red flags are numerous, serious, directly in front of the directors, and indicative of a corporate-wide problem.” 92 Eckstein/Parchomovsky, The Agent’s Problem, Duke Law Journal 70 (2021); Eckstein, The Virtue of Common Ownership in an Era of Corporate Compliance, Iowa Law Review 105 (2020), p. 507. 90

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ment actions ordinarily lead to agreements that involve the imposition of heavy fines on corporations.93 In such investigations, fines are ordinarily imposed both on subsidiaries and parents – on subsidiaries for committing a violation and on parents for failing to detect it and prevent it.94 The use of fines has become a convenient way to put money in the public coffers.95 At the same time, this method of meting out justice may be ruinous to conglomerates. The imposition of heavy fines on the parent every time a subsidiary violates the law can jeopardize the financial stability of the conglomerate as a whole. It can also undermine the incentive to establish subsidiaries or expand operations to certain industries or countries. It is also likely to push conglomerates to stop important operations executed by subsidiaries that are necessary for the existence of the conglomerate. Conglomerates are a convenient target for law enforcement agencies.96 But as Professor John Coffee persuasively argued, the filing of criminal charges against the individuals responsible for the wrongdoing provides a better way of achieving deterrence and securing justice.97 In sum, it is worth noting that imposing strict oversight liability on the parent is likely to cause it to invest too many of its resources for this mission. A survey conducted by Deloitte which was published in 2013 found that 68 % of respondents indicated that boards of parent companies spent a substantial amount of time on the oversight of their subsidiaries.98

III. Conclusion In this Chapter, we shined a spotlight on oversight liability in conglomerates. Conglomerates and corporate groups have been a main engine of economic growth in the modern economy. Virtually all the largest public corporations are structured as conglomerates. From a legal standpoint, conglomerates pose challenges different in degree and in kind from standalone corporations. We focused on the challenge of a parent’s responsibility to oversee the activities of a foreign subsidiary. We argued that the legal regime pertaining to a parent’s failure to detect and remediate compliance failures in foreign subsidiaries must consider two important factors. First, the legal and 93

Eckstein/Parchomovsky, The Agent’s Problem, Duke Law Journal 70 (2021), pp. 1518 – 1525. 94 Eckstein/Parchomovsky, The Agent’s Problem, Duke Law Journal 70 (2021), pp. 1518 – 1525. 95 Eckstein/Parchomovsky, The Agent’s Problem, Duke Law Journal 70 (2021), p. 1518. 96 Coffee, Corporate Crime and Punishment: The Crisis of Underenforcement. 97 Coffee, Jr., “No Soul to Damn: No Body to Kick”: An Unscandalized Inquiry into the Problem of Corporate Punishment, Michigan Law Review 79 (1981), p. 387 (offering ways to “focus the incidence of corporate penalties on those most able to prevent repetition and to increase the efficiency of corporate punishment without employing in terrorem penalties”). 98 Deloitte, Governance of Subsidiaries: A Survey of Global Companies.

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practical constraints faced by the parent. Second, the fact that subsidiary has its own board that possesses superior information than the board of the parent. The combination of these factors had led us to adopt the position that the oversight liability of the parent should not be excessively broad. While it might be tempting to hold the parent and its directors accountable for any problem that arises within one of the subsidiaries, doing so might jeopardize the entire corporate group. Bibliography Arlen, Jennifer: The Story of Allis-Chalmers, Caremark, and Stone: Directors’ Evolving Duty to Monitor, in: Ramseyer, Mark J. (ed.), Corporate Law Stories, New York 2009, pp. 323 – 346. Bainbridge, Stephen M.: Is Caremark Still the Hardest Claim for Plaintiffs to Win in Corporate Law?, 5. 03. 2020, available at: https://www.professorbainbridge.com/professorbainbridge com/2020/05/is-caremark-still-the-hardest-claim-for-plaintiffs-to-win-in-corporate-law.html (accessed at 17. 4. 2023). Bainbridge, Stephen M.: Abolishing Veil Piercing, Journal of Corporation Law Vol. 26, 2001, pp. 479 – 536. Belenzon, Sharon/Lee, Honggi/Patacconi, Richard: Towards a Legal Theory of the Firm: The Effects of Enterprise Liability on Asset Partitioning, Decentralization and Corporate Group Growth, NBER Working Papers 24720, National Bureau of Economic Research, Cambridge 2018. Berle, Adolf A. Jr.: The Theory of Enterprise Entity, Columbia Law Review Vol. 47, 1947, pp. 343 – 358. Black, Lewis S. Jr.: Why Corporations Choose Delaware, Delaware 2007. Blumberg, Phillip I.: Law of Corporate Groups: Problems of Parent and Subsidiary Corporations Under Statutory Law of General Application, Boston 1989. Blumberg, Phillip I.: Limited Liability and Corporate Groups, The Journal of Corporation Law Vol. 11, 1986, pp. 573 – 631. Blumberg, Phillip I.: The Increasing Recognition of Enterprise Principles in Determining Parent and Subsidiary Corporation Liabilities, Connecticut Law Review Vol. 28, 1996, pp. 295 – 346. Blumberg, Phillip I.: The Law of Corporate Groups, Connecticut Law Review Vol. 37, 2005, pp. 605 – 617. Blumberg, Phillip I.: The Law of Corporate Groups: Procedural Problems in the Law of Parent and Subsidiary Corporations, Boston 1983. Blumberg, Phillip I.: The Multinational Challenge to Corporation Law: The Search for a New Corporate Personality, New Yok 1993. Blumberg, Phillip I./Strasser, Kurt A.: Law of Corporate Groups: Problems of Parent and Subsidiary Corporations Under State Statutory Law, Boston 1995.

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Blumberg, Phillip I./Strasser, Kurt A.: Law of Corporate Groups: Problems of Parent and Subsidiary Corporations Under Statutory Law Specifically Applying Enterprise Principles, Boston 1992. Burch, Regina F.: Director Oversight and Monitoring: The Standard of Care and the Standard of Liability Post-Enron, Wyoming Law Review Vol. 6, 2006, pp. 481 – 532. Coffee, John C.: Corporate Crime and Punishment: The Crisis of Underenforcement, Oakland 2020. Coffee, John C. Jr.: “No Soul to Damn: No Body to Kick”: An Unscandalized Inquiry into the Problem of Corporate Punishment, Michigan Law Review Vol. 79, 1981, pp. 386 – 459. Cyert, Richard M./March, James G.: Behavioral Theory of the Firm, 2nd edition, Cambridge/ Mass 1992. Dearborn, Meredith: Enterprise Liability: Reviewing and Revitalizing Liability for Corporate Groups, California Law Review Vol. 97, 2009, pp. 195 – 261. Deloitte: Governance of Subsidiaries: A Survey of Global Companies (2013), available at: https://www2.deloitte.com/content/dam/Deloitte/in/Documents/risk/Corporate%20Gover nance/in-gc-governance-of-subsidiaries-a-survey-of-global-companies-noexp.pdf (accessed at 17. 4. 2023). Douglas, William O./Shanks, Carrol M.: Insulation from Liability Through Subsidiary Corporations, The Yale Law Journal Vol. 39, 1929, pp. 193 – 218. Eckstein, Asaf: The Virtue of Common Ownership in an Era of Corporate Compliance, Iowa Law Review Vol. 105, 2020, pp. 507 – 573. Eckstein, Asaf/Parchomovsky, Gideon: The Agent’s Problem, Duke Law Journal Vol. 70, 2021, pp. 1509 – 1567. Froese, Fabian Jintae/Sutherland, Dylan/Lee, Jeoung Yul/Liu, Yipeng: Challenges for International Companies in China: Implications for Research and Practice, Asian Business & Management Vol. 18, 2019, pp. 249 – 262. Hansmann, Henry/Kraakman, Reinier: Toward Unlimited Shareholder Liability for Corporate Torts, The Yale Law Journal Vol. 100, 1991, pp. 1879 – 1934. Hill, Claire A./McDonnell, Brett H.: Reconsidering Board Oversight Duties After the Financial Crisis, University of Illinois Law Review, 2013, pp. 859 – 880. Hurt, Christine: The Duty to Manage Risk, Journal of Corporation Law Vol. 39, 2014, pp. 253 – 293. Jacoby, Neil H.: The Conglomerate Corporation, Financial Analysts Journal Vol. 26, 1970, pp. 35 – 38, 40 – 42, 44 – 48. Keating, Gregory C.: The Theory of Enterprise Liability and Common Law Strict Liability, Vanderbilt Law Review Vol. 54, 2001, pp. 1285 – 1335. Khanna, Tarun/Yafeh, Yishay: Business Groups in Emerging Markets: Paragons or Parasites?, Journal of Economic Literature Vol. 45, 2007, pp. 331 – 372. Langevoort, Donald C.: Caremark and Compliance: A Twenty-Year Lookback, Temple Law Review Vol. 90, 2018, pp. 727 – 742.

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Laufer, William S./Caulfield, Matthew: Wall Street and Progressivism, Yale Journal on Regulation Bulletin Vol. 37, 2019, pp. 36 – 51. Menell, Peter S.: Legal Advising on Corporate Structure in the New Era of Environmental Liability, Columbia Business Law Review, 1990, pp. 399 – 413. Pollman, Elizabeth: Corporate Oversight and Disobedience, Vanderbilt Law Review Vol. 72, 2019, pp. 2013 – 2046. Root, Veronica: The Compliance Process, Indiana Law Journal Vol. 94, 2019, pp. 203 – 251. Schipani, Cindy A.: Infiltration of Enterprise Theory into Environmental Jurisprudence, Journal of Corporation Law Vol. 22, 1997, pp. 599 – 620. Shaner, Megan W.: The (Un)Enforcement of Corporate Officers’ Duties, U.C. Davis Law Review Vol. 48, 2014, pp. 271 – 336. Statista: World’s Largest Conglomerates as of 22. 5. 2022, available at: https://www.statista. com/statistics/261527/the-largest-conglomerates-worldwide-based-on-market-value/ (accessed at 17. 4. 2023). U.S. Dep’t of Just.: Press Release, AmerisourceBergen Corporation Agrees to Pay $625 Million to Resolve Allegations That it Illegally Repackaged Cancer-Supportive Injectable Drugs to Profit From Overfill, 1. 10. 2018. Value.Today: World Top Conglomerate Companies, available at: https://www.value.today/ world-top-companies/conglomerate (accessed at 23. 10. 2022). Van Loo, Rory: The Revival of Respondeat Superior and Evolution of Gatekeeper Liability, Georgetown Law Review Vol. 109, 2020, pp. 141 – 189. Veasey, E. Norman/Holland, Randy J.: Caremark at the Quarter-Century Watershed: ModernDay Compliance Realities Frame Corporate Directors’ Duty of Good Faith Oversight, Providing New Dynamics for Respecting Chancellor Allen’s 1996 Caremark Landmark, The Business Lawyer Vol. 76, 2020 – 2021, pp. 1 – 29.

Institutional Investor Activism: Lessons from Israel By Assaf Hamdani and Sharon Hannes*

I. Introduction One of the important developments underlying capital markets is the dramatic increase in the size and influence of institutional investors. Institutional investors hold above 40 % of global market capitalization.1 In the United States, for example, institutional investors collectively own 70 – 80 % of the entire capital market.2 Moreover, a small number of asset managers hold significant stakes at each public company.3 The rise in institutional investors’ ownership has produced studies on the corporate governance role of institutional investors. The literature initially celebrated the potential of those investors to actively monitor insiders,4 but then focused on institutional investors’ shortcomings, such as the differences between active and passive investors,5 the antitrust implications of common ownership,6 and the passivity of mutual funds in filing lawsuits against insiders.7 * Prof. Dr. Assaf Hamdani is a Professor at the Law School and the School of Management and Director of the Fischer Corporate Governance Center at Tel Aviv University. He is a member of the European Corporate Governance Institute (ECGI); Prof. Dr. Sharon Hannes is a Professor of Law and the previous Dean of the Faculty of Law at Tel Aviv University. We thank Yarden Hefer for his assistance. 1 See De La Cruz/Medina/Tang, Owners of the World’s Listed Companies, OECD Capital Market Series, 2019, at www.oecd.org/corporate/Owners-of-the-Worlds-Listed-Companies. htm. 2 See Posner/Morton/Weyl, A Proposal to Limit the Anti-Competitive Power of Institutional Investors, Antitrust L. J. 81 (2017), 669, p. 674. 3 This Chapter refers to those that make investment decisions on behalf of the funds as “asset managers”. 4 See Black, Agents Watching Agents: The Promise of Institutional Investor Voice, UCLA L. Rev. 39 (1992), 811; Rock, The Logic and (Uncertain) Significance of Institutional Shareholder Activism, Geo. L. J. 79 (1991), 445. 5 See generally Bebchuk/Hirst, Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy, Colum. L. Rev. 119 (2019), 2029; Fisch/Hamdani/Solomon, The New Titans of Wall Street: A Theoretical Framework for Passive Investors, U. Pa. L. Rev. 168 (2019), 17; Lund, The Case Against Passive Shareholder Voting, J. Corp. L. 43 (2018), 493; Kahan/Rock, Index Funds and Corporate Governance: Let Shareholders Be Shareholders (N.Y. Univ. Schl. L., Working Paper No. 18-3). 6 See Azar/Schmalz/Tecu, Anticompetitive Effects of Common Ownership, J. Fin. 73 (2018), 1513, p. 1558.

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There is widespread evidence for the growing influence of institutional investors on corporate governance.8 Yet, a common critique of these investors is that they are not as proactive as activist hedge funds in pushing for changes, especially businessrelated changes, at their portfolio companies.9 Using proxy fights and other tools to pressure public companies into making business and governance changes,10 activist funds have had a dramatic impact on modern capital markets.11 Yet, as we further explain below, institutional investors generally do not use the confrontational tactics used by activist hedge funds. The academic literature tends to focus on United States institutional investors. Only a limited number of studies, on countries such as Israel,12 the Netherlands,13 and the United Kingdom,14 offer an empirical account of institutional investors’ Activism outside the United States. The governance role of institutional investors, however, depends on economic, cultural, and regulatory factors that vary across countries. The structure of the pension market (private v. public; defined benefit v. defined contribution) determines the size of the local asset management industry and its share of domestic capital markets. Local regulations determine institutional investors’ incentive structure and the nature of their duties to their own clients. Finally, social norms and culture might dictate the extent to which institutional investors are willing to openly confront management. 7 See Griffith/Lund, Toward a Mission Statement for Mutual Funds in Shareholder Litigation, U. Chi. L. Rev. 87 (2020), 1149. 8 For a review, see Goshen/Hannes, The Death of Corporate Law, NYU L. Rev. 94 (2019), 263, pp. 277 – 283. 9 See Gilson/Gordon, The Agency Costs of Agency Capitalism: Activist Investors and the Revaluation of Governance Rights, Colum. L. Rev. 113 (2013), 863, p. 890. 10 For an early review of activist hedge funds, see generally Kahan/Rock, Hedge Funds in Corporate Governance and Corporate Control, U. Pa. L. Rev. 155 (2007), 1021. For more recent reviews, see generally Khorana/Shivdasani/Sigurdsson, The Evolving Shareholder Activist Landscape (How Companies Can Prepare for It), J. Applied Corp. Fin. 29 (2017), 8; Krishnan/Partnoy/Thomas, The Second Wave of Hedge Fund Activism: The Importance of Reputation, Clout, and Expertise, J. Corp. Fin. 40 (2016), 296. 11 In 2019, for example, 147 activist investors targeted 187 companies and won 122 board seats, while in 2018 a similar number of 131 activist investors targeted 226 companies and won 161 board seats. See Lazard S’Holder Advisory Grp., Review of Shareholder Activism 2 – 6 (2020) [hereinafter Lazard 2019 Review], https://www.lazard.com/media/451141/lazards2019-review-of-shareholder-activism-vf.pdf; Lazard S’Holder Advisory Grp., 2018 Review of Shareholder Activism 1 (2019) [hereinafter Lazard 2018 Review], https://www.lazard.com/ media/450805/lazards-2018-review-of-shareholder-activism.pdf [https://perma.cc/Y24P-8P NG]. 12 See Hamdani/Yafeh, Institutional Investors as Minority Shareholders, Rev. Fin. 17 (2012), 691. 13 See Van der Elst/Lafarre, Shareholder Stewardship in the Netherlands: The Role of Institutional Investors in a Stakeholder Oriented Jurisdiction (17. 2. 2020); ECGI Law Working Paper 492/2020. Available at SSRN: https://ssrn.com/abstract=3539820. 14 See Gomtsian, Shareholder Engagement by Large Institutional Investors, J. Corp. L. (forthcoming).

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One dimension by which institutional investors’ governance role may vary across countries is the prevalent ownership structure of public companies. The rise of institutional investors reinforces the differences between widely held and controlled companies. In widely held companies, especially in countries where hedge fund activism is more prevalent and the asset-management industry is more concentrated, institutional investors have tremendous influence over companies in their portfolio. At controlled companies, in contrast, the growth of institutional investors is less likely to have a dramatic effect on the allocation of power between insiders and public shareholders.15 In this chapter, we describe recent developments in the nature of institutional shareholder activism in Israel and analyze the implications of these developments. Israel offers an especially interesting case study for two reasons. First, whereas most public companies in Israel have controlling shareholders, major legal reforms have recently pushed some companies to become widely held, thereby empowering institutional investors to affect corporate policy. Second, Israeli institutional investors have become more active (compared to institutional investors around the world) in business strategy and director nominations. Thus, Israel offers important lessons for countries that move from concentrated to dispersed ownership of public companies. As we explain below, the shift from concentrated to diffused ownership can make institutional investors quite powerful in the absence of regulatory impediments to manifesting their power as shareholders.

II. Institutional Investors’ Activism and Director Appointments Activist hedge funds – not institutional investors – are those that lead the campaigns to change corporate policies. Hedge funds, however, commonly buy only slivers of equity in the companies they target.16 Hedge fund activism’s success thus depends on the support of large institutional investors.17 Without these investors’ support, activist hedge funds would be no more than paper tigers, as they would be unable to win proxy fights and thus losing their most potent threat against underperforming managers. Institutional investors tend to concentrate their interventions on governance, sustainability and market wide policy matters.18 Institutional investors’ focus on govern15

Almost by definition activism is limited when the company has a controlling shareholder. See, e. g. Kastiel, Against All Odds: Hedge Fund Activism in Controlled Companies, Colum. Bus. L. Rev. 2016, 60. 16 See Cremers/Masconale/Sepe, Activist Hedge Funds and the Corporation, Wash. U. L. Rev. 94 (2016), 261. 17 See Gordon/Gilson, supra note 9, at p. 867. 18 As BlackRock’s managers explain, “For the most part, the focus of investment stewardship activities is governance-related (e. g., board composition, the board’s oversight role).” Novick/Edkins/Clark, BlackRock, Inc., The Investment Stewardship Ecosystem, Harv. L.

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ance makes sense as they enjoy economies of scale when dealing with issues they repeatedly encounter in many companies in which they invest.19 In sharp contrast, a notable feature of hedge fund activism is the appointment of so-called activist directors. Activist campaigns often include proxy fights, leading to the appointment of directors to the target’s board.20 Most of these directors are appointed as the result of a settlement between the board and the activist, and only a minority of these directors are appointed by a shareholder vote following a proxy fight. Moreover, while some activist directors are partners or employees of the activist fund, most of them are outsiders and not fund employees.21 Recall that hedge funds do not hold sufficient votes to appoint their representatives to the board. Rather, they rely on the express or implicit support of institutional investors. Given the rising power of institutional investors, one might expect them to nominate their own candidates to the board without the need to rely on activists. Yet, institutional investors in the United States and the United Kingdom generally refrain from nominating directors to company boards.22 Critics have pointed to institutional investors’ failure to nominate directors as evidence of these investors’ conflicts and suboptimal stewardship incentives.23 One explanation for institutional investors’ reluctance to nominate directors is regulatory constraints. The United States, for example, has a regulatory framework that practically prevents large institutional investors from making activist moves such as nominating directors to the board. One major obstacle arises under section 13(d) of the Securities and Exchange Act, which requires any shareholder who acquires more than 5 % of a publicly traded company shares (“beneficial owner”) to file a report with the SEC within 10 days after crossing the 5 % threshold. Such owner who intends to exercise control over the company must file on Schedule 13D, which requires intrusive disclosure and prompt updating, therefore imposing a heavy burden on the filer. However, an owner of 5 % or more of the stock is eligible for much lighter reSch. F. on Corp. Governance and Fin. Reg. (24. 7. 2018), https://corpgov.law.harvard.edu/2018/ 07/24/the-investment-stewardship-ecosystem/ [https://perma.cc/7UFK-XM58]. 19 For passive investors, the focus on governance can also be explained by the competition with active funds. See Fisch/Hamdani/Solomon, supra note 5, at p. 20. 20 In 2019, for example, activists appointed 122 directors to the boards of sixty-five public companies,while in 2018 they appointed 161 directors to the boards of sixty-seven public companies. See Lazard Review, supra note 11, at 15; See also Lazard 2018 Review, supra note 11, at 8. These Lazard studies focus only on companies whose market capitalization exceeding $500 billion. 21 In 2019, for example, twenty-eight of the 122 activist directors appointed in 2019 were activist fund employees, and in 2018 thirty-six of the 161 activist directors appointed were activist fund employees. Lazard 2018 Review, supra note 11, at 8; see also Lazard Review, supra note 11, at 15. 22 In the past, banks used to appoint their representatives to public company boards. This is still the case in some jurisdications. See e. g. Ferreira/Matos, Universal Banks and Corporate Control: Evidence from the Global Syndicated Loan Market, Rev. Fin. Stud. 25 (2012), 2703. 23 See Bebchuk/Hirst, supra note 5, p. 2098.

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quirements of schedule 13G filing, if she has no intention to exercise control or influence the control of the company. Thus, in order to avoid the extensive and expensive filing under Schedule 13D, institutional investors generally refrain from any course of action that could be considered as influencing control, including nominating directors to the company’s board.24 As John Morley explains, the Schedule 13D requirement as well as additional regulatory measures practically prevent large institutional investors in the United States from adopting common activist tactics.25 These regulatory restrictions are consistent with the political economy of U.S. financial regulation. As Mark Roe famously argued, American politics has a long history of preventing financial institutions from taking a lead position in ownership and governance.26 Moreover, unlike hedge funds, institutional investors lack sufficiently strong incentives to formulate complicated business plans for portfolio companies.27 Nevertheless, we are aware of three countries where institutional investors are active in the process of nominating directors to public company boards. Yet, these countries seem to be an exception to the universal norm. Italy. In Italy, institutional investors – acting collectively through an association of institutional investors – nominate minority directors at the largest companies. This practice relies on Italy’s unique slate voting regime for directors – a legal regime that aims to provide minority shareholders with the power to appoint at least one director to the boards of companies with controlling shareholders.28 This practice differs from activist directors appointed by hedge funds in several respects. First, these directors are not nominated by a single institutional investor or asset manager, but by an entity that represents the largest institutional investors together. Second, these directors are not employees of institutional investors. Finally, as explained above, these directors are mostly appointed by institutional investors that are minority shareholders at controlled companies. Sweden. Sweden has a unique regime for nominating directors. The nominating committee of each company is ‘external’ as not all its members are directors. The Swedish Corporate Governance Code requires that at least one member of the committee must be independent of the largest shareholder. A typical nominating commit24

See 15 U.S.C. § 80a-8 (2012); 17 C.F.R. § 240 13d-1. See Morley, Too Big to Be Activist, S. Cal. L. Rev. 92 (2019), 1407, pp. 1423 – 1437. 26 Roe, A Political Theory of American Corporate Finance, Colum. L. Rev. 91 (1991), 10, pp. 40 – 41 (“popular opinion made it easy for politicians to fragment financial institutions”). 27 Gilson and Gordon believe that institutional investors’ business models prevent them from crafting any business plan for portfolio companies. See Gordon/Gilson, supra note 9, p. 893. 28 See Belcredi/Enriques, Institutional Investor Activism in a Context of Concentrated Ownership and High Private Benefits of Control: The Case of Italy, European Corporate Governance Institute (ECGI) – Law Working Paper No. 225/2013 (March 2014). Available at SSRN: https://ssrn.com/abstract=2325421; Strampelli, How to Enhance Directors’ Independence at Controlled Companies, J. Corp. L. 44 (2018), 103, p. 136. 25

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tee will comprise representatives of the controlling shareholder, the chairman of the board, and representatives of two or three (local) institutional investors.29 More so, the institutional investors who are members of the nominating committee are especially active in recruting directors for widley held companies.30 The third country is Israel, which we extensively discuss in the next Part.

III. Israel: Capital Markets in Transition In this Part, we present recent developments in institutional investor activism in Israel. We focus on the uniquely confrontational nature of Israeli institutional investors’ activism, especially as shareholders of dispersed ownership companies. The extraordinary scope of institutional investor activism makes Israel an intriguing case to analyze. We start with some background on the role of institutional investors in controlled companies. We then discuss the transition of the Israeli capital market to a partially dispersed ownership market. Finally, we describe in detail two recent cases in which institutional investors did not hesitate to nominate their own candidates as directors to company boards and intervene in major business decisions of their portfolio companies. 1. Institutional Investors and Controlled Companies The rise of powerful institutional investors at widely held companies means that these investors need not adopt aggressive tactics or other formal measures to influence management. Rather, they can deploy soft power and rely on informal means of communications with management. These developments, however, depend on the premise that large institutional investors have the collective power to displace underperforming managers. Thus, they are unlikely to take place at companies with controlling shareholders. The exiting literature on institutional investors tends to focus on the United States and occasionally the United Kingdom. In both countries, the majority of large public companies are widely held. Concentrated ownership, however, is prevalent around and world, especially in emerging markets.31 Even the United States has a significant

29 See Nachemson-Ekwall/Mayer, Nomination Committees and Corporate Governance: Lessons from Sweden and the UK, Saïd Business School WP 2018, 12, p. 15. Available at SSRN: https://ssrn.com/abstract=3170397 (reporting that nearly all public companies in Sweden have domestic institutional investors on their nominating committee, and often two). 30 See Nachemson-Ekwall, Leveraging on Home Bias: Large Stakes and Long-Termism by Swedish Institutional Investors, Nordic J. Bus. 66 (2017), 128, pp. 145 – 146. 31 See Ho, Bringing Responsible Ownership to the Financial Market of Hong Kong: How Effective Could It Be?, J. Corp. L. Stud. 16 (2016), 437.

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fraction of public companies with controlling shareholders.32 Technology companies, for example, are increasingly going public with a dual-class share structure that allows founders to control the company without holding a majority of cash flow rights.33 Concentrated ownership alters the role of institutional investors along two dimensions. First, like other public investors, institutional investors in controlled companies are minority shareholders. This means that institutional investors have limited power to affect corporate decisions. As the controlling shareholder dictates the outcome of shareholder votes, even well-incentivized institutional investors have little ability to influence companies in their portfolio, especially if these companies do not tap capital markets on a frequent basis. Even independent directors need the controller support to secure continued service on the board.34 Second, the main conflict between insiders and investors in controlled companies is the potential diversion of resources by controlling shareholders through self-dealing and other forms of ‘‘tunneling”. Moreover, business groups are prevalent in many countries around the world. The presence of business groups can create new sources of conflicts for institutional investors, for example, when dominant groups own institutional investors that make intra-group investments. In contrast, at widely-held companies, the increase in institutional investors’ size means that they are quite influential, and that much of their influence is likely to take place through engagement and other types of behind-the-scenes activity. This is especially the case for the largest asset managers, such as Blackrock or Vanguard. In controlled companies, however, even large institutional investors would presumably have little formal or informal influence. As discussed above, insiders do not rely on the support of institutional investors and thus do not have strong incentives to communicate with these investors or take their views into account. Thus, the recent emergence of stewardship codes and other regulatory measures to facilitate institutional investors’ activism are unlikely to have a meaningful effect in jurisdictions in which controllers hold the voting power that allows them to disregard the views of minority investors.35 Institutional investors may have greater influence in controlled companies to the extent that corporate law adopts measures to empower minority shareholders. For 32

See Holderness, The Myth of Diffuse Ownership in the United States, Rev. Fin. Stud. 22 (2009), 1377. 33 See, e. g., Bebchuk/Kastiel, The Untenable Case for Perpetual Dual-Class Stock, Virginia L. Rev. 103 (2017), 585, pp. 587 – 588, 605 (“[S]ince Google decided to use a dual-class structure for its 2004 IPO, a significant number of ‘hot’ tech companies have followed its lead.”). 34 See Urtiaga/Lacave, Deconstructing Independent Directors, J. Corp. L. Stud. 13 (2013), 63; Bebchuk/Hamdani, Independent Directors and Controlling Shareholders, at 17, U. Pa. L. Rev. 165 (2017), 1271. 35 See Lan/Varottil, in: Hill/Thomas (eds.), Research Handbook of Shareholder Power, 572, pp. 575 – 578.

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example, in some jurisdictions, corporate law subjects self-dealing transactions to majority-of-minority voting requirements.36 Corporate law also may empower minority shareholders to appoint some representatives to the board of directors.37 Indeed, empirical studies find that hedge fund activists that target controlled companies are more likely to succeed when they leverage legal arrangements that empower minority shareholders. A study on hedge fund activism in Hong Kong, for example, found that activists who target controlled companies rarely succeed in nominating directors, as minority shareholders lack the power to influence director nomination. Activists are more successful, however, when they focus on self-dealing, where the law requires a majority-of-minority vote.38 In Italy, in contrast and as mentioned above, activists have taken advantage of the slate voting regime designed to provide minority shareholders with at least one board seat.39 2. The Unique Case of Israel as a Market in Transition A few related factors contribute to the evolution of institutional investors’ activism in Israel. Importantly, Israel is a country in transition from a concentrated to dispersed ownership structure. Since the inception of its capital markets, Israel hardly had public corporations with dispersed ownership.40 Wealthy families, business groups and even the government, held controlling positions in practically all public corporations.41 36

See Bebchuk and Hamdani, supra note 34. See Enriques/TrPger, in: Enriques/Tro¨ger (eds.), The Law and Finance of Related Party Transactions, 1. 38 Lin, When Activists Meet Controlling Shareholders in the Shadow of the Law: A Case Study of Hong Kong, Asian J. Comp. L. 14 (2019), 1 (analyzing activist campaigns in Hong Kong and finding that “among the various legal tools available, minority veto rights are the most commonly used and the most effective tool for activists to leverage their position in controlled firm”). 39 See Erede, Governing Corporations with Concentrated Ownership Structure: An Empirical Analysis of Hedge Fund Activism in Italy and Germany, and Its Evolution, Eur. Company and Fin. L. Rev. 10 (2013), 328. One critique is that empowering shareholders in companies with controlling shareholders creates a problem of “strong shareholders weak outside investors”. See Urtiaga/Lacave, Strong Shareholders,Weak Outside Investors, J. Corp. L. Stud. 18 (2018), 277. 40 See La Porta/de Silanes/Shleifer, Corporate Ownership Around the World, J. Fin. 54 (1999), 471, pp. 492 – 496. In the late 1990s, for example, merely 5 % of Israel’s 20 largest firms and only 10 % of medium-sized companies had a dispersed ownership structure; See also Hannes, The Justifications for the Use of Anti-takeover Defenses in the Israeli Market, Tel Aviv Univ. L. Rev. 26 (2013), 819, pp. 831 – 835; Hamdani/Kosenko/Yafeh, Regulatory Measures to Dismantle Pyramidal Business Groups: Evidence from the United States, Japan, Korea, and Israel, J. L. Fin. Acct. 6 (2021), 221, pp. 244 – 52. 41 Porta/de Silanes/Shleifer, Id. 5 % of Israel’s 20 largest firms were controlled by a financial company, 50 % were controlled by wealthy families, and 40 % were controlled by the government. 37

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These powerful controlling shareholders have long been criticized for consuming private benefits of control at the expense of public investors.42 As a result, with the increase in their assets under management as a result of pension reforms, some of Israel’s institutional investors started opposing certain self-dealing transactions. Recall that institutional investors in controlled companies can become effective when the law empowers minority shareholders to affect corporate decisions. Indeed. Israel’s corporate law does require the approval of a majority of minority shareholders for certain self-dealing transactions.43 Consequently, Israel’s institutional investors gained experience in publicly voicing concern and being active in opposing certain actions of controlling shareholders. In a typical Israeli self-dealing transaction, the representatives of the company (and even the controlling shareholders themselves), negotiate the approval of the transaction with the institutional investors that hold the largest minority stakes. These negotiations take place either directly, with the representatives of the institutional investors, or through a proxy advisory firm.44 A famous illustrative case is the squeeze out merger of Osem Ltd., one of Israel’s largest food producers. Nestle, the international food conglomerate, was the controlling shareholder of Osem and wanted to buy out the minority shareholders and take the company private. Under Israeli law, as mentioned above, such self-dealing merger requires the approval of the majority of the minority shareholders.45 In order to negotiate the terms of the proposed squeeze-out merger, Osem nominated a special committee of independent directors and empowered it to negotiate the proposed transaction with Nestle.46 The special committee negotiated with Nestle, agreed on improved terms, and submitted the merger to a vote by shareholders. At this stage, however, the institutional investors of Osem did not find the outcome sufficient and were able to negotiate much favorable deal terms for minority shareholders.47 Such noteworthy ability of Israel’s institutional investors to negotiate with powerful controlling shareholders drew attention, as well as deference, from the courts, to the negotiated terms of the deal. In a seminal ruling of the Supreme Court, Justice Yoram Danziger held that a transaction that was negotiated with the company’s in42 See Dyck/Zingales, Control Premiums and the Effectiveness of Corporate Governance Systems, J. Applied Corp. Fin. 16 (2004), 51, p. 56 (finding that in the 1990s, the average value of control premium in Israel was 27 %); see also Barak/Lauterbach, Firm-Specific Factors Affecting the Private Benefits of Control in Concentrated Ownership Economies, Advanced Fin. Econ. 15 (2012), 59; Hamdani/ Yafeh, supra note 12. 43 Hamdani/Hannes, Controlling Shareholders, Self-dealing, and Entire Fairness, L. Bus. 9 (2008), 75, pp. 86 – 93; Hamdani/Hannes, Entire Fairness! Reconsidering Judicial Review of Self-Dealing Transactions, Hebrew Univ. L. Rev. 47 (2018), 761, pp. 772 – 773, 809 – 10. 44 Until recently, the leading proxy advisor in Israel was Entropy and it was extremely prominent until recently, https://www.entropy.co.il. See Baum/Weintroib/Menachem-Yanay, Freedom of Structuring Transactions, in Justice Yoram Danziger Book, 99, pp. 118 – 120. 45 § 320 (c), § 275 Companies Law 5759-1999. 46 CA (DC Tel-Aviv) 40404-03-16 Sharon Atzmon v. Osem Investments Ltd, Para. 3, Nevo Database (4. 8. 2020). 47 Id, paras. 298 – 303.

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stitutional investors and approved by the shareholders justifies a deferential treatment by the court.48 The Kital case involved a tender offer in which the controlling shareholder bought the shares of the minority shareholders. Such tender offer is an alternative technique under Israeli law to take the company private,49 and it allows the minority shareholders to petition the court in order to exercise an appraisal right.50 Justice Danziger clarified, however, that the court will not easily grant such remedy, and will show much deference to the original deal terms, whenever such terms were reached through negotiations with institutional shareholders. He reasoned as follows: “…‘Analyst’ [an institutional investor] is a large and independent offeree, which had the power to thwart the tender offer, given the scope of its holdings … In these circumstances, its’ consent to the tender offer must be given considerable evidential weight, even if not decisive. Methinks the consent of the offeree in such circumstances can be seen as a partial indication of the fairness of the consideration, regarding the transaction made voluntarily prior to the tender offer, in which a buyer offers a mass of shares in the company. In these circumstances, the burden on the applicant for an appraisal is to prove that the consent of an offeree of the ‘analyst’ type does not constitute such an indication or that the evidentiary weight of the consent is low …”51 [emphasis added]

In our view, the experience gained by Israeli institutional investors in negotiating self-dealing terms with powerful controlling shareholders positioned them to take up an even more active role when ownership structure in the Israeli market started to evolve. And indeed, during the last decade, some of Israel’s largest companies had transitioned into a dispersed ownership structure. This process was driven by several forces. To start with, corporate governance reforms,52 and especially the establishment of a specialized court for corporate affairs at Tel-Aviv,53 led to a decrease in the ability of controlling shareholders to consume private benefits of control.54 This made the position of the controlling shareholder less appealing for some investors. In addition, in 2013 Israel adopted far-reaching legislation that forced some companies to shift from 48 LCrimA 779/06 Kital Int’l Holdings and Development Ltd. v. Shaul Maman, paras. 94 – 95, Nevo Database (28. 8. 2012). 49 Companies Law, supra note 45, §336 – 339. See generally Hamdani/Hannes, Controlling Shareholders, Self-dealing, and Entire Fairness, supra note 43 (2008); Hannes/Yadlin, Flaws in the Design of the Israeli Regulation of Tender Offers: Some Lessons Following a Recent Control Contest, Tel Aviv Univ. L. Rev. 27 (2004), 787. 50 Companies Law, supra note 45, §338. 51 Kital case, supra note 48, para. 95. 52 See Hannes, et al., The Value of Control in Israel Following Extensive Corporate Governance Reforms, Hebrew Univ. L. Rev. 51 (2020), 769. 53 Israeli Securities Authority, Corporate Governance Committee Final Report (12. 12. 2006), http://www.isa.gov.il/Download/IsaFile_45.pdf; For a review see Shapira, Be Like Delaware, Tel Aviv Univ. L. Rev. 44 (2021), 683, pp. 689 – 94, 721. 54 Additional factors, such as controlling shareholders’ extensive coverage by the media, and the exposure to criminal and administrative enforcement, also led to a decline in the private value of control. See Hannes/Lauterbach/Blum et al. supra note 52, pp. 13 – 38.

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concentrated to diffused ownership.55 The new legislation significantly limited controlling shareholders’ ability to use pyramidal ownership structures to control public companies. It also prevented controllers of financial companies from controlling non-financial ones. In direct response to this legislation, the controllers of several public companies sold their stake to the public, thereby making the company a widely held one. Consequently, Israeli institutional investors became the collective owners of a majority of the shares of several large public companies. The relatively sudden disappearance of controlling shareholders from the scene in these large public companies left a control vacuum that Israeli institutional investors started in part to fill. More so, unlike many other countries, Israel does not have in place regulatory constraints that prevent institutional investors in other countries from flexing their muscles. This is hardly surprising as the lack of diffused ownership firms also meant that there was no reason to develop such constraints. After all, as discussed above when a company has a controlling shareholder, institutional investors are minority shareholders with little power to affect corporate policy. Most important, unlike their U.S. counterparts, for example, institutional investors in Israel can quite easily nominate directors to the board of directors. And outside investors in Israel enjoy proxy access, in the sense that they can require a public company, in which they invest, to add the institutional shareholders’ nominees to the proxy statement of the company. Moreover, the Israeli corporate code allows any shareholder of more than 5 % of the stock to call for a special shareholders meeting, and to place its proposals on the agenda.56 The Israeli Corporate Code even allows a shareholder with as low as 1 % of the stock to propose an amendment to the corporate charter,57 and unlike the United States the board has no veto power on charter amendments. For as long as ownership structure was highly and almost unanimously concentered, all these vast powers meant very little and remained dormant, but with the rise of dispersed ownership, their force has awakened. The following examples illustrate both the power and willingness of Israel’s institutional investors to engage in activism. These cases highlight the potency as well as the perils of such institutional investors’ activism campaigns. They have proven to be forceful and swift, but also scattered with disarray, and often fail to achieve their goals.

55 The Law For Promotion of Competition and Reduction of Concentration, 5774-2013. This major piece of legislation. For the logic behind the legislation see Israeli Dept. of Treasury, Competitiveness Committee’s Final Report (18. 5. 2012), https://www.gov.il/BlobFolder/ unit/competitiveness-committee/he/Vaadot_ahchud_CompetitivenessCommittee_FinalReport_ FinalRec.pdf. See also Hamdani/Yafeh/Kosenko, supra note 40. 56 Companies Law, supra note 45, §63(b)(2) and §66(b). 57 Id, §66(b).

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Paz Company. Paz Oil Company Ltd. is Israel’s largest petrol stations company. Paz ownership became diffused as a direct result of the legislation mentioned above,58 and the power shifted to a few large institutional investors, each holding between 5 to 10 percent of the stock.59 At the time its controller divested its stake, Paz had a CEO who held his position for 12 years. In 2018, however, the company’s major institutional shareholders voiced their concern about the company’s performance. In other words – Paz institutional investors wished for a more aggressive firm strategy. At first, the institutional investors started an “intensive discourse” with Paz’s long time CEO,60 but after a few months when they were still unsatisfied, they stepped up their campaign. Thus, three of Paz’s institutional investors each suggested to the company’s nomination committee one nominee for the board.61 After a proxy fight vis-a-vis the candidates nominated by the company’s nomination committee itself, the candidates suggested by the institutional investors were elected to the board.62 Given that Paz had a staggered board, there were no additional board positions to fill at the time and affect a major change. However, the institutional investors were successful in their additional demand to modify Paz’s corporate charter in order to add another board position. The proposal to amend the corporate charter was proposed by one of the three institutional investors which nominated one of the directors mentioned above. In any case, the newly created board position was immediately filled by a candidate nominated directly by a fourth institutional investor,63 who received the support of the other institutional investors. Such new director was nominated with the clear and stated intention of taking the position of the chairman of the board,64 and in fact, he assumed the said office immediately after his election.65 58 Paz’s controlling shareholder, Zadik Bino, was also the controlling shareholder of one of the largest banks in Israel, and given the new legislation had to choose to give up control in one of the two companies. He decided to sell his stake in Paz on the stock exchange. See Freund, After 17 years: Zadik Bino is no Longer the Controlling Shareholder of Paz, Calcalist (18. 9. 2016), https://www.calcalist.co.il/real_estate/articles/0,7340,L-3698170,00.html. 59 Peretz, The New Tycoons: When Companies Don’t Have a Controlling Shareholder – The Institutional Investors take the reins, TheMarker (1. 12. 2019), https://www.themarker. com/markets/2019-12-01/ty-article/.premium/0000017f-e0a0-df7c-a5ff-e2fa8c240000. 60 Bindman/Rahimi, The Institutional Investors Wish to Revolutionize Paz’s Board of Directors, Calcalist (25. 9. 2018), https://www.calcalist.co.il/markets/articles/0,7340,L3746420,00.html. 61 See the company’s immediate report from 8. 10. 2018, https://maya.tase.co.il/reports/de tails/1187608. 62 See the company’s immediate reports from 16. 10. 2018, https://maya.tase.co.il/reports/ details/1189546; Bindman/Rahimi, supra note 60. 63 Bindman, Paz’s Shareholders Approve Charter Amendment – Avraham Biger’s Path to the Board is Paved, Calcalist (3. 12. 2018), https://www.calcalist.co.il/markets/articles/ 0,7340,L-3751212,00.html. 64 Sasson, Avraham Bigger Appointed to Paz’s Board – Will Try to Take the Chairman Position, TheMarker (11. 3. 2019), https://www.themarker.com/markets/2019-03-11/ty-article/ 0000017f-e714-d97e-a37f-f775b2ee0000.

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These dramatic board changes that were initiated by the company’s institutional investors ultimately led to the removal of the company’s CEO.66 To be sure, all the elected board members were outsiders in the sense that they were unaffiliated with the institutional investors that nominated them. Nevertheless, the institutional investors’ activism was swift, aggressive, and effective. Ironically, 14 months after the removal of the previous CEO, Paz’s stock further declined by 38 %.67 This led in 2020 to the resignation of the chairman of the board,68 who was then replaced with yet another new director suggested to the nomination committee by a fifth(!) institutional investor.69 Shufersal Company. Another dramatic example of institutional investors’ activism took place recently at Shufersal, Israel largest supermarket chain.70 Shufersal has a short history as a widely held public company. Until July 2020, Shufersal was a subsidiary of the I.D.B. Group, which divested its controlling stake due to a combination of the abovementioned legislation and market forces.71 Hence, and in this case as well, Israeli institutional investors collectively became the company’s majority shareholders once the controlling shareholder vacated the scene.72 Soon thereafter, the chairman of the board, who was the representative of the previous controlling shareholder, was about to be replaced.73 In order to prevent the nomination chaos that took place at Paz, the board of Shufersal decided to consult ahead of time with its institutional investors, in order to preempt the need for the latter to nominate directors that would run against those nominated by the board. At the time, Shufersal had six institutional investors that each 65 See the company’s immediate report from 20. 3. 2019, https://maya.tase.co.il/reports/de tails/1219188. 66 Hazani, Now it’s Official – Paz CEO Yona Fogel is Retiring, Calcalist (19. 9. 2019), https://www.calcalist.co.il/markets/articles/0,7340,L-3770671,00.html. 67 Golan Hazani, The Fights on Paz’s Board Have Exhausted Bigger, Locker Will be Appointed Chairman This Week, Calcalist (22. 11. 2020), https://www.calcalist.co.il/markets/ articles/0,7340,L-3874890,00.html. 68 See the company’s immediate report from 19. 11. 2020, https://maya.tase.co.il/reports/ details/1333329. 69 See the company’s immediate reports from 31.82020 and 22. 11. 2020, https://maya.tase. co.il/reports/details/1318638, https://maya.tase.co.il/reports/details/1333692. 70 See https://www.shufersal.co.il/tadmit/about/who-we-are/. 71 The Law For Promotion of Competition and Reduction of Concentration, supra note 55; Hazani, The Control in Shufersal Passes to the Public, Ynet (23. 7. 2020), https://www.ynet.co. il/economy/article/S1AYkiIgD; See the company’s immediate reports from 22. 7. 2020 and 26. 7. 2020, https://maya.tase.co.il/reports/details/1310667, https://maya.tase.co.il/reports/de tails/1311118/0/0/777. 72 Moses, Who Will Lead the Wagon? Behind the Scenes of Yaki Vadmani’s Appointment as Shufersal’s New Chairman, Globes (20. 10. 2020), https://www.globes.co.il/news/article.as px?did=1001346420. 73 Gabizon, The Stirrings Behind the Scenes which Made Itzhak Aberkohen Shufersal’s Controlling Shareholder, TheMarker (21. 10. 2020), https://www.themarker.com/markets/202010-21/ty-article/.premium/0000017f-ebe3-dc91-a17f-ffef60a00000.

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held about 10 % of the stock.74 The company decided to form a nomination committee, composed of all its four independent directors, and directed the committee to ask and take into account institutional investors’ views.75 Entropy, the leading proxy advisory firm at the time, took a major role in structuring the above mentioned nomination process.76 Each institutional investor was invited by the nomination committee to propose a candidate for the position of chairman of the board (as well an additional director-candidate with a technological expertise).77 The nomination committee also granted each of the largest six institutional investors a veto power over one candidate.78 Finally, and after the nomination committee also consulted with the company’s CEO, one of the candidates, Mr. Yaki Vadmani, was nominated and elected to the board and became its chair.79 Alas, the orderly manner by which the company involved its institutional investors in the directors’ nomination process did not guarantee their support for long. About one year after the new chairman’s election, the institutional investors became dissatisfied. The new chairman clashed with the incumbent well-regarded CEO, Itzhak Aberkohen.80 This led to the CEO’s departure in January 2022. In turn, some of the institutional investors voiced their concern over the board’s effectiveness, including over the board’s decision to appoint a new CEO, who had no experience in the food business.81 Soon thereafter, in April 2022, one of the large institutional investors, the Phoenix Insurance Company, vehemently protested against a proposed merger of Shufersal with another retailer (Delek Israel). In a letter to the board of Shufersal, Phoenix de-

74 Id. See the company’s immediate report from 30. 9. 2020, https://maya.tase.co.il/reports/ details/1325196. 75 Gabizon, supra note 73. 76 Id. 77 Id. 78 Id. 79 See the company’s immediate reports from 19. 10. 2020, https://maya.tase.co.il/reports/ details/1327090, https://maya.tase.co.il/reports/details/1327093. 80 Cohen, The Opposition to Shufersal Merger: Phoenix Fired the Opening Shot, Will Other Institutional Investor Follow, Globes (8. 4. 2022), https://www.globes.co.il/news/article. aspx?did=1001408604. 81 Gabizon, Vadmani is Struggling to Keep His Position – and Few Businessmen Cooperate to Acquire the Control in Shufersal, TheMarker (31. 3. 2022), https://www.themarker.com/ markets/2022-03-31/ty-article/.premium/00000180-5baa-d97e-a7fb-7bff7cea0000; Gabizon/ Dovrat-Meseritz/Appleberg, The Amir Brothers Marked the Beginning of the End of Shufersal as a Company Without a Controlling Shareholder, TheMarker (16. 3. 2022), https://www.the marker.com/markets/2022-03-16/ty-article/.premium/00000180-5b94-db1e-a1d4dff53fb50000.

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manded to suspend the merger negotiations immediately, as Phoenix did not believe it could benefit Shufersal and its shareholders.82 The sharp criticism by Shufersal‘s institutional investor base soon led to a major board overhaul. In an unprecedented move, the board nomination committee decided not to re-nominate the chairmen of the board for another term in office at the upcoming annual shareholder meeting.83 The decision about came after heavy pressure on the committee from the company’s institutional investors.84 As a result, the chairman decided to step down immediately, without awaiting the shareholders meeting to take place.85 The reason being that Shufersal’s institutional investor simply had another candidate in mind for the chairman position – the previous CEO, Itzhak Aberkohen, who as mentioned above left his office just a few months earlier.86 In order to achieve their goals, the institutional investors held discussions with Shufersal’s nomination committee and suggested potential candidates. In another unusual move, three institutional investors teamed up and sent a united list of 3 proposed candidates to the nomination committee.87 They took such action only after they have secured a legal opinion that sanctioned their ability to act in concert.88 One of the candidates was the said Mr. Aberkohen, with the intention that he will serve as the new chairman. Two other institutional investors sent their own lists of suggested nominees to the nomination committee.89 And while each list was different – they all included Mr. Aberkohen as one of the candidates. Once the dust cleared, Shufersal had a new board with 5 new directors out of its 9 members – all of whom were proposed to the nomination committee by the compa-

82 Cohen, The Opposition to Shufersal Merger: Phoenix Fired the Opening Shot, Will Other Institutional Investor Follow, Globes (8. 4. 2022), https://www.globes.co.il/news/article. aspx?did=1001408604. 83 Cohen, Without a CEO and a Chairman: This is How Shufersal Lost the Control (12. 4. 2022), https://www.globes.co.il/news/article.aspx?did=1001409043. 84 Id; Gabizon, Less Than Three Months After Leaving Shufersal’s CEO’s Office – Aberkohen Will Return to the Company’s Chairman Position, TheMarker (21. 6. 2022), https:// www.themarker.com/markets/2022-06-21/ty-article/.premium/00000181-861c-d0ac-a7bda71f68790000; Baum, Aberkohen, Chairman of Shufersal’s Board? Fail Grade to the Institutional Investors and to the Outside Directors, TheMarker (20. 6. 2022), https://www.the marker.com/markets/2022-06-20/ty-article/.premium/00000181-7b18-d541-a9adfb1c2d230000. 85 Cohen, supra note 83. 86 Gabizon, supra note 84. 87 Baum, The Managerial Chaos in Shufersal: The Watershed in the Institutional Investor’s Involvement in Company Management, TheMarker (2. 5. 2022), https://www.themarker.com/ markets/2022-05-02/ty-article/.premium/00000180-98a1-d68d-adee-bfb5fdf20000. 88 Id. 89 Among them were “Clal Insurance” and “Harel Group”, which also sent a five person nominees list to Shufersal. Id.

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ny’s institutional investors.90 The new board elected Mr. Aberkohen, as expected, to be its chairman.91 And, one of the first actions of the board was to fire the recently elected CEO.92 The same CEO that was unanimously elected to office by the Shufersal’s board – was fired unanimously by the new board but a few months after his election.93 The wishes of the institutional investors won the day in any respect. The Paz and Shufersal examples are but two examples of a recent trend in Israel. A similar course of action took place in other Israeli companies, with varying degrees of success.94 What can we learn from these examples? Indeed, institutional investors’ activism in Israel has proven to be forceful and swift, but as we have seen it is also scattered with disarray and it has an unorganized ad-hoc nature. There are a few reasons that prevent even Israeli institutional investors from leading organized activism campaigns of the sort orchestrated by activist hedge funds. Some relate to institutional investors’ business model and some to their regulation. To start with, unlike hedge funds, which focus on a few single targets and have powerful incentives to improve each targets’ performance, institutional investors have huge

90

Two incumbent directors who lost their place on the board were nominated by the nomination committee without a recommendation from an institutional investor. See the company’s immediate reports from 17. 5. 2022 and 21. 6. 2022, https://maya.tase.co.il/reports/ details/1449825, https://maya.tase.co.il/reports/details/1457919. 91 See the company’s immediate report from 26 .6 .2022, https://maya.tase.co.il/reports/de tails/1458420; Gabizon, Itzik Aberkohen was Appointed as Shufersal’s Chairman, TheMarker (23. 6. 2022), https://www.themarker.com/markets/2022-06-23/ty-article/.premium/000001818fcd-d376-a1cf-efcf59ac0000. 92 See Baum, supra note 87; See the company’s immediate reports from 10. 7. 2022 and 12. 7. 2022, https://maya.tase.co.il/reports/details/1463154, https://maya.tase.co.il/reports/de tails/1463967, https://maya.tase.co.il/reports/details/1463982. 93 Dovrat-Meseritz, Shufersal’s Board Unanimously Decided to Summon CEO Ofer Bloch to a Hearing Before Dismissal, TheMarker (7. 7. 2022), https://www.themarker.com/markets/ 2022-07-07/ty-article/.premium/00000181-d855-d9a3-a3e1-fdff69ac0000. See also Gabizon/ Dovrat-Meseritz/Appleberg, supra note 81. 94 Ziv, An Unusual Incident – Institutional Investors Wish to Replace Bezeq’s Board of Directors, TheMarker (26. 1. 2018), https://www.themarker.com/technation/1.5767349; Cohen, Entropy Supports the Institutional Investor’s Nominees to Mivne’s Board of Directors, Globes (8. 8. 2019), https://www.globes.co.il/news/article.aspx?did=1001296534; Rochwerger, The institutional Investors: Eyal Deshe is Disappointing, TheMarker, (2. 7. 2020), https://www. themarker.com/markets/2020-07-02/ty-article/.premium/0000017f-dba9-d3ff-a7fffba9c31c0000; Rochwerger, The Institutional Investors to Isracard: Reformulate the Company’s Process of Directors’ appointment, TheMarker (3. 9. 2020), https://www.themarker.com/ markets/2020-09-03/ty-article/0000017f-e293-d9aa-afff-fbdb1b080000; Azar, Under Institutional Investors Pressure, Nimrodi Modified the Corporate Governance of Israel Land Development Company, Calcalist (9. 2. 2022), https://www.calcalist.co.il/market/article/ hyyuk11xk9; Korin-Lieber/Stein/Avisar, Is Hauser on His Way Becoming Leumi’s Chairman? The Battle for the Chairman Position Has Reopened, and the Institutional Investors are Trying to Decide on Their own Nominee, Globes (6. 11. 2018), https://www.globes.co.il/news/article. aspx?did=1001259441.

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portfolios and lame incentives.95 Institutional investors must maintain a cost-effective business model, and it makes no sense for them to invest much in crafting, let alone executing, elaborate strategic business plans for their portfolio companies. Moreover, even when they nominate directors to the boards of their portfolio companies, they cannot provide them with a “back-office”. Their nominees will always be independent outsiders, much different from hedge fund’s insiders who often take board position.96 In fact, given that institutional investors trade continuously in the securities of the portfolio companies, insider trading limitations prevent free communication with the nominated directors. Unlike the back and forth communication of hedge funds with their nominated directors, which allow the former to refine and articulate the hedge fund’s plans for the target, the nominees of the Israeli institutional investors are more like a fire-and-forget missile. Finally, given that the different institutional investors are fierce competitors there are both antitrust,97 as well as business reasons, that prevent them from acting in concert. Each institutional investor often has its own agenda, and their nominees to the boards may therefore act in an incoherent manner. This is also why we do not see formation of “wolf packs” of institutional investors that operate vis-à-vis the target companies in tandem, while such wolf-packs are common for hedge funds. The Israeli case illustrates the dynamics that might take place once ownership structure changes in markets where institutional investors’ holdings are substantial. Institutional investors may become (collectively) the owners of a majority of public company shares, and as a group they have the power to determine vote outcomes and decide who will serve on the board. Moreover, given that it is a new phenomenon, lawmakers have not yet responded. However, the promise as well as the perils of such new power may at some point draw a regulatory backlash. This may happen in Israel as well. 95 See, e. g., Hirst/Bebchuk/Cohen, The Agency Problems of Institutional Investors, J. Econ. Perspectives 31 (2017), 89, p. 105 (“Because of their small size and method of selection, activist hedge fund portfolios display very little correlation with those of competing funds, or with other investment opportunities available to their investors. … Thus, the desire to improve relative performance provides more powerful incentives for activist hedge funds to seek governance-related value improvements than it does for managers of index funds and active mutual funds.”). For a further review, see id, pp. 94 – 107. 96 Hamdani/Hannes, The Future of Shareholders Activism, B.U. L. Rev. 99 (2019), 971, pp. 992 – 997. 97 This is true notwithstanding the fact that Israel’s Competition Authority allows ad hoc communications and cooperation between institutional investors for the purpose of voting in the shareholders’ meeting of a portfolio company; see, Israel Competition Authority, Opinion 1/19 Collaboration Between Institutional Investors That are not Within the Field of Competition (17. 12. 2019), https://www.gov.il/he/departments/legalInfo/opinion1-19; see also Bindman, Institutional Investors Will Get Permission to Meet and Coordinate Positions Regarding Publicly Traded Companies, Calcalist (13. 2. 2019), https://www.calcalist.co.il/markets/ar ticles/0,7340,L-3756289,00.html.

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IV. Conclusion This chapter analyzed the governance implications of the rising influence of institutional investors against the background of the rise of activist hedge funds. The rising power of institutional investors will further enhance the difference between controlled and widely held companies. Powerful institutional investors at widely held companies are increasingly likely to exert their influence behind the scenes, and when the regulation allows them they may even resort to overt aggressive tactics. The Israeli case is illustrative. Yet, some activist interventions – those that require the appointment of activist directors to implement complex business changes, and those that require strict cooperation of a few activist investors – cannot be pursued even by powerful and well-motivated institutional investors without dramatic changes to their respective business models and regulatory landscape. Bibliography Azar, Almog: Under Institutional Investors Pressure, Nimrodi Modified the Corporate Governance of Israel Land Development Company, Calcalist, February 2022, available at: https:// www.calcalist.co.il/market/article/hyyuk11xk9 (accessed at 18. 03. 2023). Azar, José/Schmalz, Martin C./Tecu, Isabel: Anticompetitive Effects of Common Ownership, The Jorunal of Finance Vol. 73 No. 4, 2018, pp. 1513 – 1565. Barak, Ronen/Lauterbach, Beni: Firm-Specific Factors Affecting the Private Benefits of Control in Concentrated Ownership Economies, Advanes in Financial Economies Vol. 15, 2012, pp. 59 – 77. Baum, Ido: Aberkohen, Chairman of Shufersal’s Board? Fail Grade to the Institutional Investors and to the Outside Directors, TheMarker, June 2022, available at: https://www.themarker. com/markets/2022-06-20/ty-article/.premium/00000181-7b18-d541-a9ad-fb1c2d230000 (accessed at 18. 03. 2023). Baum, Ido: The Managerial Chaos in Shufersal: the Watershed in the Institutional Investor’s Involvement in Company Management, TheMarker, May 2022, available at: https://www.the marker.com/markets/2022-05-02/ty-article/.premium/00000180-98a1-d68d-adeebfb5fdf20000 (accessed at 18. 03. 2023). Baum, Ido/Weintroib, Tal/Menachem-Yanay, Dana: Freedom of Structuring Transactions, in: Justice Yoram Danziger Book, 2019, pp. 99 – 131. Bebchuk, Lucian A./Hamdani, Assaf: Independent Directors and Controlling Shareholders, University of Pennsylvania Law Review Vol. 165 No. 6, 2017, pp. 1271 – 1315. Bebchuk, Lucian A./Hirst, Scott: Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy, Columbia Law Review Vol. 119 No. 8, 2019, pp. 2029 – 2145. Bebchuk, Lucian A./Kastiel, Kobi: The Untenable Case for Perpetual Dual-Class Stock, Virginia Law Review Vol. 103 No. 4, 2017, pp. 585 – 630. Belcredi, Massimo/Enriques, Luca: Institutional Investor Activism in a Context of Concentrated Ownership and High Private Benefits of Control: The Case of Italy, European Corporate

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Governance Institute (ECGI) – Law Working Paper No. 225/2013, March 2014, available at: https://ssrn.com/abstract=2325421 (accessed at 16. 03. 2023). Bindmann, Rachel: Institutional Investors Will Get Permission to Meet and Coordinate Positions Regarding Publicly Traded Companies, Calcalist, February 2019, available at: https://www.calcalist.co.il/markets/articles/0,7340,L-3756289,00.html (accessed at 18. 03. 2023). Bindmann, Rachel: Paz’s Shareholders Approve Charter Amendment – Avraham Biger’s Path to the Board is Paved, Calcalist, December 2018, available at: https://www.calcalist.co.il/mar kets/articles/0,7340,L-3751212,00.html (accessed at 18. 03. 2023). Bindmann, Rachel/Rahimi, Yaniv: The Institutional Investors Wish to Revolutionize Paz’s Board of Directors, Calcalist, Septemer 2018, available at: https://www.calcalist.co.il/mar kets/articles/0,7340,L-3746420,00.html (accessed at 18. 03. 2023). Black, Bernard S.: Agents Watching Agents: The Promise of Institutional Investor Voice, UCLA Law Review Vol. 39, 1992, pp. 811 – 893. Cohen, Omri: Entropy Supports the Institutional Investor’s Nominees to Mivne’s Board of Directors, Globes, August 2019, available at: https://www.globes.co.il/news/article.aspx?did= 1001296534 (accessed at 18. 03. 2023). Cohen, Omri: The Opposition to Shufersal Merger: Phoenix Fired the Opening Shot, Will Other Institutional Investor Follow, Globes, April 2022, available at: https://www.globes.co.il/news/ article.aspx?did=1001408604 (accessed at 18. 03. 2023). Cohen, Omri: Without a CEO and a Chairman: This is How Shufersal Lost the Control, April 2022, available at: https://www.globes.co.il/news/article.aspx?did=1001409043 (accessed at 18. 03. 2023). Cremers, Martijn/Masconale, Saura/Sepe, Simone M.: Activist Hedge Funds and the Corporation, Washington University Law Review Vol. 94 No. 2, 2016, pp. 261 – 339. Cruz, Adriana de la/Medina, Alejandra/Tang, Yung: Owers of the World’s Listed Companies, OECD Capital Market Series, Paris, 2019, available at: https://www.oecd.org/corporate/ca/ Owners-of-the-Worlds-Listed-Companies.pdf (accessed at 14. 03. 2023). Dovrat-Meseritz, Adi: Shufersal’s Board Unanimously Decided to Summon CEO Ofer Bloch to a Hearing Before Dismissal, TheMarker, July 2022, available at: https://www.themarker.com/ markets/2022-07-07/ty-article/.premium/00000181-d855-d9a3-a3e1-fdff69ac0000 (accessed at 18. 03. 2023). Dyck, Alexander/Zingales, Luigi: Control Premiums and the Effectiveness of Corporate Governance Systems, Journal of Applied Corporate Finance Vol. 16, 2004, pp. 51 – 72. Enriques, Luca/Tröger, Tobias H.: The Law and (Some) Finance of Related Party Transactions: An Introduction, in: Enriques, Luca/Tröger, Tobias H. (eds.): The Law and Finance of Related Party Transactions, Cambridge 2019, pp. 1 – 20. Erede, Matteo: Governing Corporations with Concentrated Ownership Structure: An Empirical Analysis of Hedge Fund Activism in Italy and Germany, and Its Evolution, European Company and Financial Law Review Vol. 10 No. 3, 2013, pp. 328 – 393.

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Ferreira, Miguel, A./ Matos, Pedro: Universal Banks and Corporate Control: Evidence from the Global Syndicated Loan Market, The Review of Financial Studies Vol. 25, 2012, pp. 2703 – 2744. Freund, Oren: After 17 years: Zadik Bino is no Longer the Controlling Shareholder of Paz, Calcalist, September 2016, available at: https://www.calcalist.co.il/real_estate/articles/0,7340,L3698170,00.html (accessed at 18. 03. 2023). Fisch, Jill E./Hamdani, Assaf/Davidoff Solomon, Steven: The New Titans of Wall Street: ATheoretical Framework for Passive Investors, University of Pennsylvania Law Review Vol 168, 2019, pp. 17 – 72. Gabizon, Yoram: Itzik Aberkohen was Appointed as Shufersal’s Chairman, TheMarker, June 2022, available at: https://www.themarker.com/markets/2022-06-23/ty-article/.premium/ 00000181-8fcd-d376-a1cf-efcf59ac0000 (accessed at 18. 03. 2023). Gabizon, Yoram: Less Than Three Months After Leaving Shufersal’s CEO’s Office – Aberkohen Will Return to the Company’s Chairman Position, TheMarker, June 2022, available at: https://www.themarker.com/markets/2022-06-21/ty-article/.premium/00000181-861c-d0aca7bd-a71f68790000 (accessed at 18. 03. 2023). Gabizon, Yoram: The Stirrings Behind the Scenes which Made Itzhak Aberkohen Shufersal’s Controlling Shareholder, TheMarker, October 2020, available at: https://www.themarker. com/markets/2020-10-21/ty-article/.premium/0000017f-ebe3-dc91-a17f-ffef60a00000 (accessed at 18. 03. 2023). Gabizon, Yoram: Vadmani is Struggling to Keep His Position – and Few Businessmen Cooperate to Acquire the Control in Shufersal, TheMarker, March 2022, available at: https://www. themarker.com/markets/2022-03-31/ty-article/.premium/00000180-5baa-d97e-a7fb7bff7cea0000 (accessed at 18. 03. 2023). Gabizon, Yoram/Dovrat-Meseritz, Adi/Appleberg, Shelly: The Amir Brothers Marked the Beginning of the End of Shufersal as a Company Without a Controlling Shareholder, TheMarker, March 2022, available at: https://www.themarker.com/markets/2022-03-16/ty-article/.pre mium/00000180-5b94-db1e-a1d4-dff53fb50000 (accessed at 18. 03. 2023). Gilson, Ronald J./Gordon, Jeffrey N.: The Agency Costs of Agency Capitalism: Activist Investors and the Revaluation of Governance Rights, Columbia Law Review Vol. 113 No. 4, 2013, pp. 863 – 927. Gomtsian, Suren: Shareholder Engagement by Large Institutional Investors, Journal of Corporation Law, 2020, forthcoming. Goshen, Zohar/Hannes, Sharon: The Death of Corporate Law, New York University Law Review Vol. 94, 2019, pp. 263 – 315. Griffith, Sean J./Lund, Dorothy S.: Toward a Mission Statement for Mutual Funds in Shareholder Litigation, Univeristy of Chicago Law Review Vol. 87, 2020, pp. 1149 – 1240. Gutiérrez Urtiaga, María/Sáez Lacave, Maribel: Deconstructing Independent Directors, Journal of Corporate Law Studies Vol. 13, 2013, pp. 63 – 94. Gutiérrez Urtiaga, María/Sáez Lacave, Maribel: Strong Shareholders,Weak Outside Investors, Journal of Corporate Law Studies Vol. 18, 2018, pp. 277 – 309.

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Hamdani, Assaf/Hannes, Sharon: Controlling Shareholders, Self-dealing, and Entire Fairness, Law and Business Vol. 9, 2008, pp. 75 – 111. Hamdani, Assaf/Hannes, Sharon: Entire Fairness! Reconsidering Judicial Review of Self-Dealing Transactions, Hebrew University Law Review Vol. 47, 2018, pp. 761 – 822. Hamdani, Assaf/ Hannes, Sharon: The Future of Shareholders Activism, Boston University Law Review Vol. 99, 2019, pp. 971 – 1000. Hamdani, Assaf/Kosenko, Konstantin/Yafeh, Yishay: Regulatory Measures to Dismantle Pyramidal Business Groups: Evidence from the United States, Japan, Korea, and Israel, Journal of Law, Finance, and Accounting Vol. 6, 2021, pp. 221 – 261. Hamdani, Assaf/Yafeh, Yishay: Institutional Investors as Minority Shareholders, Review of Finance Vol. 17, 2012, pp. 691 – 725. Hannes, Sharon: The Justifications for the Use of Anti-takeover Defenses in the Israeli Market, Tel Aviv University Law Review Vol. 26, 2013, pp. 819 – 864. Hannes, Sharon et al.: The Value of Control in Israel Following Extensive Corporate Governance Reforms, Hebrew University Law Review Vol. 51, 2020, p. 769 et seq. Hannes, Sharon/Yadlin, Omri: Flaws in the Design of the Israeli Regulation of Tender Offers: Some Lessons Following a Recent Control Contest, Tel Aviv University Law Review Vol. 27, 2004, pp. 787 – 820. Hazani, Golan: Now it’s Official – Paz CEO Yona Fogel is Retiring, Calcalist, September 2019, available at: https://www.calcalist.co.il/markets/articles/0,7340,L-3770671,00.html (accessed at 18. 03. 2023). Hazani, Golan: The Control in Shufersal Passes to the Public, Ynet, July 2020), available at: https://www.ynet.co.il/economy/article/S1AYkiIgD (accessed at 18. 03. 2023). Hazani, Golan: The Fights on Paz’s Board Have Exhausted Bigger, Locker Will be Appointed Chairman This Week, Calcalist, November 2020, available at: https://www.calcalist.co.il/mar kets/articles/0,7340,L-3874890,00.html (accessed at 18. 03. 2023). Hirst, Scott/Bebchuk, Lucian A./Cohen, Alma: The Agency Problems of Institutional Investors, Journal of Economic Perspectives Vol. 31 No. 3, 2017, pp. 89 – 102. Ho, John Kong Shan: Bringing Responsible Ownership to the Financial Market of Hong Kong: How Effective Could It Be?, Journal of Corporate Law Studies Vol. 16 No. 2, 2016, pp. 437 – 469. Holderness, Clifford G.: The Myth of Diffuse Ownership in the United States, The Review of Financial Studies Vol. 22, 2009, pp. 1377 – 1408. Israel Competition Authority, Opinion 1/19, Collaboration Between Institutional Investors That are not Within the Field of Competition, December 2019, available at: https://www.gov.il/he/ departments/legalInfo/opinion1-19 (accessed at 18. 03. 2023). Israeli Department of Treasury, Competitiveness Committee’s Final Report, March 2012, available at: https://www.gov.il/BlobFolder/unit/competitiveness-committee/he/Vaadot_ahchud_ CompetitivenessCommittee_FinalReport_FinalRec.pdf (accessed at 18. 03. 2023). Israeli Securities Authority, Corporate Governance Committee Final Report, December 2006, available at: http://www.isa.gov.il/Download/IsaFile_45.pdf (accessed at 18. 03. 2023).

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Kahan, Marcel/Rock, Edward: Hedge Funds in Corporate Governance and Corporate Control, University of Pennsylvania Law Review Vol. 155, 2007, pp. 1021 – 1093. Kahan, Marcel/Rock, Edward: Index Funds and Corporate Governance: Let Shareholders Be Shareholders, Boston University Law Review Vol. 100, 2018, pp. 1771 – 1815. Kastiel, Kobi: Against All Odds: Hedge Fund Activism in Controlled Companies, Columbia Business Law Review Vol. 2016, 2016, pp. 60 – 132. Khorana, Ajay/Shivdasani, Anil/Sigurdsson, Gustav: The Evolving Shareholder Activist Landscape (How Companies Can Prepare for It), Journal of Applied Corporate Finance Vol. 29, 2017, pp. 8 – 17. Korin-Lieber, Stella/Stein, Ron/Avisar, Irit: Is Hauser on His Way Becoming Leumi’s Chairman? The Battle for the Chairman Position Has Reopened, and the Institutional Investors are Trying to Decide on Their own Nominee, Globes, November 2018, available at: https://www.globes.co.il/news/article.aspx?did=1001259441 (accessed at 18. 03. 2023). Krishnan, C. N. V./Partnoy, Frank/Thomas, Randall S.: The Second Wave of Hedge Fund Activism: The Importance of Reputation, Clout, and Expertise, Journal of Corporate Finance Vol. 40, 2016, pp. 296 – 314. Lan, Luh Luh/Varottil, Umakanth: Shareholder Empowerment in Controlled Companies: The Case of Singapore, in: Hill, Jennifer G./Thomas, Randall S. (eds.), Research Handbook of Shareholder Power, 2015, pp. 572 – 591. La Porta, Rafael/Lopez de Silanes, Florencio/Shleifer, Andrei: Corporate Ownership Around the World, The Journal of Finance Vol. 54 No. 2, 1999, pp. 471 – 517. Lazard’s Shareholder Advisory Group, 2018 Review of Shareholder Activism, January 2019, cited as: Lazard 2018 Review, available at: https://www.lazard.com/media/450805/lazards2018-review-of-shareholder-activism.pdf, https://perma.cc/Y24P-8PNG (accessed at 18. 03. 2023). Lazard’s Shareholder Advisory Group, 2019 Review of Shareholder Activism, January 2020, cited as: Lazard 2019 Review, available at: https://www.lazard.com/media/451141/lazards2019-review-of-shareholder-activism-vf.pdf (accessed at 18. 03. 2023). Lin, Yu-Hsin: When Activists Meet Controlling Shareholders in the Shadow of the Law: A Case Study of Hong Kong, Asian Journal of Comparative Law Vol. 14, 2019, pp. 1 – 36. Lund, Dorothy S.: The Case Against Passive Shareholder Voting, Journal of Corporation Law Vol. 43, 2018, pp. 493 – 536. Morley, John: Too Big to Be Activist, Southern California Law Review Vol. 92, 2019, pp. 1407 – 1454. Moses, Shani: Who Will Lead the Wagon? Behind the Scenes of Yaki Vadmani’s Appointment as Shufersal’s New Chairman, Globes, October 2020, available at: https://www.globes.co.il/ news/article.aspx?did=1001346420 (accessed at 18. 03. 2023). Nachemson-Ekwall, Sophie: Leveraging on Home Bias: Large Stakes and Long-Termism by Swedish Institutional Investors, Nordic Journal of Business Vol. 66 No. 3, 2017, pp. 128 – 157.

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Nachemson-Ekwall, Sophie/Mayer, Colin: Nomination Committees and Corporate Governance: Lessons from Sweden and the UK, Saïd Business School Working Paper 2018-12, 2018, available at: https://ssrn.com/abstract=3170397 (accessed at 18. 03. 2023). Novik, Barbara/Edkins, Michelle/Clark, Tom: BlackRock, Inc., The Investment Stewardship Ecosystem, Harv. L. Sch. F. on Corp. Governance and Fin. Reg., July 2018, https://corp gov.law.harvard.edu/2018/07/24/the-investment-stewardship-ecosystem/, https://perma.cc/ 7UFK-XM58, (accessed at 18. 03. 2023). Paz Oil Company Ltd.: Immediate Report, 8th October 2018, available at: https://maya.tase.co. il/reports/details/1187608 (accessed at 18. 03. 2023). Paz Oil Company Ltd.: Immediate Report, 16th October 2018, available at: https://maya.tase.co. il/reports/details/1189546 (accessed at 18. 03. 2023). Paz Oil Company Ltd.: Immediate Report, 20th March 2019, available at: https://maya.tase.co. il/reports/details/1219188 (accessed at 18. 03. 2023). Paz Oil Company Ltd.: Immediate Report, 23rd July 2020 and 26th July 2020, available at: https://maya.tase.co.il/reports/details/1310667 and https://maya.tase.co.il/reports/details/ 1311118/0/0/777 (accessed at 18. 03. 2023). Paz Oil Company Ltd.: Immediate Report, 31st August 2020 and 22nd November 2020, available at: https://maya.tase.co.il/reports/details/1318638 and https://maya.tase.co.il/reports/de tails/1333692 (accessed at 18. 03. 2023). Paz Oil Company Ltd.: Immediate Report, 8th October 2020, available at: https://maya.tase.co. il/reports/details/1325196 (accessed at 18. 03. 2023). Paz Oil Company Ltd.: Immediate Report, 19th October 2020, available at: https://maya.tase.co. il/reports/details/1327090 and https://maya.tase.co.il/reports/details/1327093 (accessed at 18. 03. 2023). Paz Oil Company Ltd.: Immediate Report, 19th November 2020, available at: https://maya.tase. co.il/reports/details/1333329 (accessed at 18. 03. 2023). Paz Oil Company Ltd.: Immediate Report, 17th May 2022 and 21st June 2022, available at: https://maya.tase.co.il/reports/details/1449825 and https://maya.tase.co.il/reports/details/ 1457919 (accessed at 18. 03. 2023). Paz Oil Company Ltd.: Immediate Report, 23rd June 2022, available at: https://maya.tase.co.il/ reports/details/1458420 (accessed at 18. 03. 2023). Paz Oil Company Ltd.: Immediate Report, 10th July 2022 and 12th July 2022, available at: https://maya.tase.co.il/reports/details/1463154, https://maya.tase.co.il/reports/details/ 1463967 and https://maya.tase.co.il/reports/details/1463982 (accessed at 18. 03. 2023). Peretz, Sami: The New Tycoons: When Companies Don’t Have a Controlling Shareholder – The Institutional Investors take the reins, TheMarker, December 2019), available at: https://www.themarker.com/markets/2019-12-01/ty-article/.premium/0000017f-e0a0-df7ca5ff-e2fa8c240000 (accessed at 18. 03. 2023). Posner, Eric A./Scott Morton, Fiona M./Weyl, E. Glen: A Proposal to Limit the Anti-Competitive Power of Institutional Investors, Antitrust Law Journal Vol. 81 No. 3, 2017, pp. 669 – 728.

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Rochwerger, Michael: The institutional Investors: Eyal Deshe is Disappointing, TheMarker, July 2020, available at: https://www.themarker.com/markets/2020-07-02/ty-article/.premium/ 0000017f-dba9-d3ff-a7ff-fba9c31c0000 (accessed at 18. 03. 2023). Rochwerger, Michael: The institutional Investors to Isracard: Reformulate the Company’s Process of Directors’ appointment, TheMarker, Septermber 2020, available at: https://www.the marker.com/markets/2020-09-03/ty-article/0000017f-e293-d9aa-afff-fbdb1b080000 (accessed at 18. 03. 2023). Rock, Edward B.: The Logic and (Uncertain) Significance of Institutional Shareholder Activism, Georgetown Law Review Vol. 79, 1991, pp. 445 – 506. Roe, Mark J.: A Political Theory of American Corporate Finance, Columbia Law Review Vol. 91 No. 1, 1991, pp. 10 – 67. Sasson, Assa: Avraham Bigger Appointed to Paz’s Board – Will Try to Take the Chairman Position, TheMarker, March 2019, available at: https://www.themarker.com/markets/2019-0311/ty-article/0000017f-e714-d97e-a37f-f775b2ee0000 (accessed at 18. 03. 2023). Shapira, Roy: Be Like Delaware, Tel Aviv University Law Review Vol. 44, 2021, pp. 683 – 746. Strampelli, Giovanni: How to Enhance Directors’ Independence at Controlled Companies, The Journal of Corporation Law Vol. 44, 2018, pp. 103 – 149. Urtiaga, María G./Lacave, Maria I.: Deconstructing Independent Directors, Journal of Corporate Law Studies Vol. 13, 2013, pp. 63 – 94. Urtiaga, María G./Lacave, Maria I.: Strong Shareholders, Weak Outside Investors, Journal of Corporate Law Studies Vol. 18, 2018, pp. 277 – 309. Van der Elst, Christoph/Lafarre, Anne: Shareholder Stewardship in the Netherlands: The Role of Institutional Investors in a Stakeholder Oriented Jurisdiction, European Corporate Governance Institute – Law Working Paper 492/2020, February 2020, available at: https://ssrn.com/ abstract=3539820 (accessed at 18. 03. 2023). Ziv, Amitay: An Unusual Incident – Institutional Investors Wish to Replace Bezeq’s Board of Directors, TheMarker, January 2018, available at: https://www.themarker.com/technation/1. 5767349 (accessed at 18. 03. 2023).

Taxation of “Stateless” Individual Taxpayers in the 21st Century By Tamir Shanan*

I. Introduction This paper analyzes the income tax consequences and policy implications of the recent phenomenon of “stateless taxpayers”. The term “stateless persons” is generally used in the international law context and means “a person who is not considered to be a national by any state under the operation of its law.”1 However, for the purposes of this paper, the term “stateless individual taxpayer” refers to individual taxpayers who claim to have no fiscal residence for tax purposes under the operation of any domestic income tax system in the world, as well as to taxpayers who are considered resident under some domestic tax system in the world, but due to preferential tax holidays offered by that country, are not liable to tax on a comprehensive (worldwide) basis but are only liable at the most to tax in respect of income from sources within that state or to gains from capital situated therein. Such preferential tax arrangements are sometimes referred to as non-domiciled regimes (or non-dom regimes) and over the past decades have been established by a number of states to attract wealthy, highly skilled/trained individual taxpayers including high earners. This paper focuses on the tax consequences of the increasing global mobility of human capital in the 21st century, which is estimated at over one billion people, who decide to move geographically away from their homes, families and friends, in order to establish new homes and become integral members of different communities. Thirty per cent of those persons migrate across borders, leave their country of birth, and establish their new “homes” overseas. This paper will also focus on the tax consequences of individuals who decide to temporarily or permanently leave all they have behind and move from place to place, having no fixed place or signifi* Dr. Tamir Shanan is a lecturer at the Haim Striks Faculty of Law, where he also served as the Dean. He holds an LL.B. cum laude and a B.B. specializing in Accounting from the College of Management, an LL.M. cum laude from The Hebrew University of Jerusalem, an LL.M. from University of Michigan and an S.J.D (Scientific Juris Doctor) from University of Michigan. 1 Article 1 of the 1954 Convention relating to the Status of Stateless Persons, Convention relating to the Status of Stateless Persons, adopted 28 July 1951, G.A. Res. 429 (V), 360 U.N.T.S. 117 (entered into force 6 June 1960); Weissbrodt/Collins, The Human Rights of Stateless Persons, Human Rights Quarterly 28 (2006).

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cant affinity to a specific country (aka tax nomads), and many of whom practically avoid altogether taxation worldwide. This paper challenges the existing tax rules that deal with cross-border migrants as human capital [as] global mobility increases. It presents some thoughts on the necessary measures that should be adopted to make sure that these taxpayers are not subjected to excessive effective tax burdens due to insufficient coordination between countries (aka double-taxation due to residence-residence conflict) but also to eliminate the ability of these taxpayers to avoid taxation altogether (aka double non-taxation). For a long time, the tax literature that focused on taxation of cross-border income and gains has mainly focused on the application of such rules to corporations and their shareholders, however over the past several years, as global mobility of human capital increased, more work has been devoted both to exploring the tax consequences as well as the tax policy implications that result from cross-border movement of individual taxpayers, partly due to technological and communicational advancements that enabled people perform their employment duties and render their services remotely.2 These changes have to a certain extent undermined the concept of “one person, one country,” as hundreds of millions of people from all over the world move from one place to another, and, while doing so, acquire personal and economic attachments to more than a single tax jurisdiction. More and more people have more than one single country where they reside, conduct their businesses, or own capital in a meaningful sense, while at the same time tens of millions of other people move from one place to another having no fixed place or meaningful community in which they are members, and as such claim to have no fiscal residence whatsoever (aka nomads). This paper also explores the international tax consequences of cross-border migrants and tax nomads by presenting the Israeli experience. The State of Israel was established almost eight decades ago, and approximately one third of its population was born overseas and migrated to Israel while approximately 10 % of its population left it and (many of them returned several years after they had left). Moreover, the State of Israel has adopted a generous regime that offers foreign citizens and people who have decided to return after residing overseas for a significant period, generous tax breaks and reporting exemptions. This paper shares the Israeli experience. It analyzes Israeli tax law, Israeli income tax authorities’ guidance, and several recent court rulings that limited taxpayer’s planning to avoid worldwide taxation altogether or to reduce their tax burden significantly, and while doing so gave important guidance, on the proper approach how these issues should be treated. This paper presents 2 Avi-Yonah, Taxing Nomads: Reviving Citizenship-Based Taxation for the 21st Century, Working paper, 2022; Kostic´, in: Brauner (ed.), Research Handbook on International Taxation, 353; Elkins, A Scalar Conception of Tax Residence for Individuals, Virginia Tax Review 41 (2020), 149.

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one of the seminal court decisions that was given by Justice Danziger that emphasized the importance of tax systems in society and the importance of interpreting the law and the tax treaty undertaking in eliminating double taxation and double non-taxation.3 In our view, Justice Danziger’s judicial interpretation sends a clear message and should be incorporated and become an integral part of the international tax regime. 1. The Origins of International Tax Regimes – Reliance on an Outdated Concept, Which Poses Difficulties in Taxing Individual Taxpayers in the Digital Age as Cross-Border Human Capital Mobility Increases The first international tax treaty can be traced back to the end of the 19th century. The treaty was between the Swiss Federal Council (on behalf of the Canton of Vaud) and Great Britain. The treaty was signed in 1887 in order to eliminate double taxation in inheritance but not less importantly to strengthen the military ties between the two countries and deter France, then their main rival.4 However, most scholars refer to the post World War I period and to the work of the League of Nations as the formative period in which international tax regimes were established.5 In the 1920s, the League of Nations formed a committee of four well known economists from four different countries (the United States and the United Kingdom, which were significant capital exporters, together with Italy and the Netherlands, which were capital importers). The Committee was asked to prepare a set of rules that would both assist states in allocating tax rights for cross-border income and gains between different tax jurisdictions as well as eliminate double taxation. The committee presented its report in 1923.6 The 1923 report was based on the benefit principle, which was referred to by the committee as the “doctrine of economic allegiance”. The committee justified each country’s entitlement to tax by the benefits that that country had conferred on the taxpayer. As such, the 1923 committee report said countries were entitled to tax income where the income originated (aka the source country). Furthermore, as a means of compromise, the committee recognized countries whose members were recipients 3

Supreme Court Appeal 15/3328 Ploni vs. Ashkelon Tax Assessment Officer (February 2017) (hereinafter the Ploni Case); Ploni: An Israeli citizen who divided his time between Israel (where he, his wife and four children resided in a comfortable permanent home) and several foreign countries (where he operated and generated most of his income and gains). 4 Hongler, International Law of Taxation, pp. 7 – 10. 5 Graetz, The David R. Tillinghast Lecture: Taxing International Income: Inadequate Principles, Outdated Concepts, and Unsatisfactory Policies, Tax Law Review 54 (2001), 261; Avi-Yonah, The Structure of International Taxation: A Proposal for Simplification, Texas Law Review 74 (1996), 1301; Brauner, An International Tax Regime in Crystallization-Realities, Experiences and Opportunities, Public Law Research Paper No. 43, 259. 6 Hongler, supra note 4.

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of (and presumably consumes it there) entitlement to income tax (aka the country of residence). Residence countries were awarded entitlement to tax based on “ability to pay” considering taxpayers’ worldwide income. Despite the efforts of the U.S. representative on the committee to convince the other committee members to tax cross-border income solely or primarily on a residence basis, the committee recommended that the source country be awarded a prior right to tax cross-border income or gains. However, as a compromise, the committee decided not to adopt a single allocational basis. It awarded “source” countries with a priority in taxing cross-border income and awarded residence countries a lesser right to tax, as it was expected to allow foreign tax credit while taxing its residence’s foreign source income.7 Even though the 1923 Report was not consensual and there were widely opposing views, the foundational concepts were embedded in later drafts and within several decades became the uniform “starting point” for any bilateral tax treaty negotiations under the OECD, UN, or the US model tax convention. They enjoyed universal support. As part of such universal support, the respective principles have been incorporated in many countries’ domestic tax systems.8 Over the years scholarly works have criticized the foundational principles under the existing regime in different areas in which the development of the world has made significant progress. Those works mainly focused on the taxation of corporations and their shareholders, including: the concept of corporate residency, the rise of multinational enterprises, and the idea that its affiliates interact according to the arm’s length principle, the idea that capital (and mainly money and portfolio income) is relatively static, the disconnect between the way permanent establishment is defined, and the digital economy, etc.9 However, the rules for taxing cross-border individual taxpayers received far less attention despite the significant technological and communicational advancements that affected the ways people live, work, travel and not less important on the way human work is performed, the inroads on bank secrecy and the increasing cooperation between countries in exchanging information. These changes have undermined the personal and economic attachments people had with their countries of birth. These changes have also undermined to a certain extent the significance of the geographical in the income production processes while strengthing the ability of residence countries to trace and tax foreign source income of their inhabitants. In our view the changes demand the reexamination of the existing rules that govern taxation of individuals, and the way taxing rights are allocated among different taxing jurisdictions in the 21st century.10 7

Graetz, supra note 5; Avi-Yonah, supra note 5. Narotzki, Tax Treaty Models – Past, Present, and a Suggested Future, Akron Law Review 50 (2017), 383, pp. 386 – 390. 9 Graetz, supra note 5; Avi-Yonah, supra note 5. 10 Not less important change was the introduction of robots into our lives (the automation revolution). There is a growing consensus that robots will have a significant impact on labor 8

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2. The Magnitude and Economic Impact of Cross-Boarder Migrants Our current age of globalization can be distinguished from the previous one (during the 1920s) by the increasing mobility of human capital. During the 1920s developed countries placed extensive restrictions on immigration, which made the movement of individuals between countries relatively difficult. However, during the past two decades both developing, and even more so developed countries, have realized the importance of cross-border migration in increasing economic growth. It is not surprising that international migration has reached unprecedented levels and that the numbers of cross-border migrants continue to grow rapidly.11 The number of cross-border migrants has more than tripled (360 %) since the 1970s. While there were approximately 77 million cross-border migrants in 1975, in contrast in 1999 there were approximately 120 million cross-border migrants12, and based on the most recent UN report in 2020, there were approximately 280 million migrants. Nonetheless, the percentage of cross-border migrants is still relatively modest (equates to 3.6 % of the world population), which means that for the time being, the overwhelming majority of the world’s population still resides within each person’s country of birth. However, the economic impact of cross-border migrants’ significantly outweighs their representation in the global population.13 Over the past four decades, the tax literature has mainly focused on the migration of highly skilled and trained workers from developing countries that moved to the developed countries (aka the brain drain).14 However, contrary to popular belief, the number of cross-border migrants that move to developing countries is larger than the numbers of people who move to developed countries.15 The main driver markets (if not already), and that this will result in “technological unemployment” (namely the redundancy of low-skill workers) and will also challenge the tax rules as they apply to the concept of the source basis. As human capital can work remotely, the significance of geographical location should be revisited in more and more professions. However, these challenges exceed the scope of this paper and should be analyzed separately. See De La Feria/ Grau Ruíz, in: Grau Ruíz (ed.), Interactive Robotics: Legal, Ethical, Social and Economic Aspects, 93; Abbott/Bogenschneider, Should Robots Pay Taxes? The Policy in the Age of Automation, Harvard Law and Politics Review 12 (2018), 145. 11 Avi-Yonah, Globalization, Tax Competition, and the Fiscal Crisis of the Welfare State, Harvard Law Review 113 (2000), 1573; Wenden, New Migrations: Why are more people on the move than ever before and where they are going?, International Journal on Human Rights 13 (2016), 17. 12 Wenden, ibid p. 18. 13 Wenden, ibid; World Migration Report 2022 (hereinafter: UN Global Migration Report 2022). 14 For a review of the literature that presents and analyzes the brain drain phenomenon, see Brauner, Mobility of Individuals, the Brain Drain, and Taxation in the Digital Age Draft; Brauner, Brain Drain Taxation as Development Policy, Saint Louis University Law Journal 55 (2010), 221. 15 World Bank, Leveraging Economic Migration for Development (September 2019) (hereinafter World Bank Economic Report).

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for cross-border migration is income and employment shortages between countries of origin and the destination countries. The following ratio between the average salary in developing country, which in 2017 was around $800, and the average salary in developed countries which was around $40,000, possibly demonstrates how such a decision can be life changing for many migrants. Additional drivers of migration are the desire to provide better education, healthcare, and career opportunities to migrants’ children; and catastrophes that force persons to leave their countries of birth and become refugees and asylum seekers etc. (aka displaced people). Based on the most recent UN report on global migration, in 2020 there were around 26 million refugees, around 4 million asylum seekers, and around 59 million other displaced persons, who were forced to leave their homes due to war, conflicts, violence and natural disasters.16 Based on World-Bank and UN estimates, 60 % of the cross-border migrants’ population is considered working migrants. These migrants generate trillions of dollars annually, they remit hundreds of billions of dollars ($550 billion in 2019) to their families and friends who were left behind, and they are also responsible for paying billions of dollars to agents as recruitment fees and for transportation.17 Clearly, cross-border migration affects the lives of hundreds of millions of people all over the world. It is also apparent that human mobility is becoming essential for economic development and growth for both developed and developing countries. This understanding has led many countries to remove the extensive migration restrictions that were put in place following the world wars, replacing restrive migration policies with selective ones. An understanding of the potential economic contribution cross-border migration has, as well as the demographic imbalances between developed countries whose population is aging, increases their fiscal pressures [in developed countries] (as their tax revenues and even more so their social security revenues diminishes or stays steady while their cost of care of their elderly rises, and their need to hire people to assist their elders increases) while developing countries (whose fertility rates are much higher) face completely contrary concerns with growing population and insufficient jobs and resources to maintain them. Given these changes, countries are competing in attracting wealthy, high-earners, and highly skilled taxpayers, and, as part of such competition, offer generous tax breaks which are referred as non-Dom tax regimes. These tax breaks (awarded as incentives to encourage foreigners to immigrate) offer this population with exemptions for foreign source income for a certain period of time, and subject them mainly to tax on income from domestic sources (territorial basis) and possibly to income they consume (remittance basis). These tax regimes are responsible for hundreds of billions of untaxed revenues and losses of tens of billions of tax revenues. A recent study 16 17

World Bank Economic Report, ibid. World Bank Economic Report, ibid.; UN Global Migration Report 2022, supra note 13.

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of the income tax consequences of the UK non-Dom regime itself revealed that abolishing the non-Dom regime in the UK would raise at least £3.2 billion a year in tax revenues. Additionally, a more recent phenomenon, which has also become more significant is “digital nomadism”. Digital nomadism is generally described as a way of life in which one moves from one place to another, having no attachment to a fixed country, while continuing to work remotely either as service providers or as employees. The technological and communicational advancements have changed the ways labor can be performed in more and more professions, simply by logging onto one’s personal computer and working digitally from any place where electricity and wi-fi/internet connections are available. While it was almost inconceivable a few years ago that employers or customers would be willing to receive services remotely, the Covid pandemic has proven that it is indeed feasible, and the numbers of digital nomads has increased significantly. Even though it is not entirely clear how representative the recent surveys on digital nomadism are , the general estimate is that in 2022 there were approximately tens of millions (around 45 million) of digital nomads globally, one third of whom (around 15 million) originated in the United States. Even though it seems that digital nomadism is not tax driven, as many of people say that their reason for moving was their difficulties paying their living costs in their countries of origin, their desire to travel and get to know different places and people or to change their lifestyles, this phenomenon presumably results in untaxed income which in our view is unjustified.18 3. Residency Determination for Tax Purposes As Professor Avi-Yonah pointed out more than two decades ago, there are several good reasons for preferring “residence” over “source” taxation of individuals in the cross-border context: The first is a pragmatic ground: individuals can only be in one place at any given time. Thus, residence for individuals is a relatively easy concept to establish, and in fact, it is possible to set down bright-line rules for determining the fiscal residence of individuals. On the other hand, determining the source of income is a highly problematic endeavor, and in most cases, income will have more than one source. Thus, if one jurisdiction is to be given the primary right to tax individuals, the residence jurisdiction is an obvious candidate. Secondly, because most individuals have only one residence jurisdiction and are part of only one society, distributional concerns can be effectively addressed only in the country of residence. Thirdly, the residence of individuals to some extent overlaps with their political allegiance. Finally, 18 The MBO Partners 2022 State of Independence research study found that 16.9 million American workers currently describe themselves as digital nomads, increasing 9 % from 2021 and increasing a staggering 131 % from the pre-pandemic year 2019, available at https://www. mbopartners.com/state-of-independence/digital-nomads/.

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economists have pointed out that residence based taxation is compatible with the goal of capital export neutrality (CEN). This goal requires that the decision to invest in a given location not be affected by tax rates; otherwise, investments that yield the highest returns on a pretax basis will not be made because the after-tax return will be lower, causing global welfare (based on allocative efficiency) to be diminished.19 In spite of that, international consensus awarded priority to the source basis, even when it came to taxing individuals, however the criteria that define tax residency according to different domestic tax systems, and even the treaty tiebreaker rules that are intended assign the taxing rights of the country of residence to a single taxing jurisdiction, are in our view far from perfect.20 a) Residency Determination under Domestic Tax Systems Individual fiscal residency is defined under each country’s tax system. Generally, fiscal residency for tax purposes is examined for each and every year separately based on different criteria and regardless of the taxpayer’s facts and circumstances in previous years. In our view this methodology is not free of problems in the cross-border setting, since most tax systems do not tax human capital appreciation even when taxpayers change their residence (unlike built in gain of property that is often subject to exit tax upon residency changes).21 There is no universal definition of fiscal residency for tax purposes. Each country defines residency differently under its domestic tax law. The following represent some of the most common criteria that countries have adopted in determining residency/domicile under their domestic tax systems: ordinarily resident; habitual abode (physical presence test); permanent home, closer personal and economic relations, and nationality which is rarely listed among the factors.22 Over the years, more and more countries have adopted the physical presence test as it is relatively easy to trace and prove since individuals unlike corporation are physically present in a single place at any given time and since human capital is perceived of as relatively static. Accordingly, most countries determined residency based on physical presence of 183 days or more days per annum within the country. However, as human capital mobility increases, it is not entirely clear whether the presence test is still meaningful and whether the 183-days (six months) maximal threshold in fact assists taxpayers to avoid being regarded resident simply by avoiding the necessary period. Even countries that have adopted a physical presence test 19

Avi-Yonah, supra note, at pp. 1311 – 1312. Vogel, On Double Taxation Conventions (edited by Ekkehart Reimer and Alexander Rust), p. 269. 21 Vogel, On Double Taxation Conventions, ibid; Avi-Yonah, Taxing Nomads: Reviving Citizenship-Based Taxation for the 21st Century, Working paper; Kostic´, in: Brauner (ed.), Research Handbook on International Taxation, 353. 22 Avi-Yonah, ibid; Kostic´, ibid. 20

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that counts the days one has resided within the country during a period of several years can still be managed and are subject to manipulation unless the period is significantly shortened (for example instead of six months – three months or even less).23 Another important connecting factor that has been adopted by many countries in defining fiscal residency is the personal and economic attachment criterion, which weighs various personal and economic factors that presumably connect taxpayers to the respective country. This connecting factor is more complex (as there are many connecting factors) and it is less conclusive. Among the different determinative factors that are examined, a special emphasis is generally given to the location of the taxpayer’s dwelling. Another connecting factor that is given additional weight is the location in which the taxpayer’s and his nuclear family (generally spouse and minor children) reside. However, these two connecting factors are generally less relevant to people well into their 30s. Recently, the increase in human capital mobility, the complexity in determining fiscal residency based on the existing connecting factors, and the fact that more people have attachments to more than a single country, have made citizenship more appealing as it is relatively easy to prove and since most people have only one citizenship.24 However, as we show below, nationality becomes less meaningful as countries offer new citizenship programs while offering the immigrants generous tax breaks such that they can end up paying very little tax worldwide on a residence basis.25 Nevertheless, an individual may be regarded as having multiple residencies for two reasons. First, not all domestic tax systems in the world adopt a uniform definition of tax residence. Second, definitions of tax residency occasionally include several connecting factors, and one may be regarded a tax resident in one country based on one connecting factor and a resident of a different country based on another connecting factor as individuals may have relations with more than one country and end up having multiple tax residencies in different countries, which potentially results in double taxation. However, the rules for eliminating double taxation refer mainly to conflicts between source countries and residence countries even without the existence of a tax treaty simply by expecting the residence country to award its resident credit for the foreign tax paid on foreign source income. Double taxation that results from conflicts between two or more residence countries is eliminated only if a bilateral treaty exists. Accordingly, when no tax treaty is available, double taxation may not be eliminated. We would also wish to question why a single tax jurisdiction should only be 23

Vogel, supra note 20; Avi-Yonah, ibid; Kostic´, ibid. See I.R.C. § 7701 (a)(30)(A). The United States was the first country to apply the citizenship criterion as connecting factor in determining fiscal residency (for historical reasons) and over the years this criterion has been severely criticized for using it. A limited number of countries have incorporated it into their fiscal definition, including Eritrea, the Philippines, Hungary, and Lithuania. 25 Vogel, supra note 20. 24

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assigned such tax rights (the taxing rights of the residence country) and not shared among several tax jurisdictions. b) Residency Determination under Bilateral Tax Treaties All three treaty models adopt the following language regarding the personal tax connections. Residency for income tax purposes for treaty purposes is determined as follows: For the purposes of this Convention, the term “resident of a Contracting State” means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature, and also includes that State and any political subdivision or local authority thereof as well as a recognized pension fund of that State. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State or capital situated therein. Accordingly, Article 4 (1) in all three treaty models requires that the taxpayer will be defined in both contracting states as its resident, and that the taxpayer will be liable to tax in both contracting states in respect of his worldwide income and in respect of gains from property regardless of where such property is situated. To the extent that these two requirements are met in only one country then the taxpayer will be regarded resident of that contracting state. However, if these two requirements are met in both contracting states, then all the treaty models contain a mechanism for determining which one of the individual taxpayer’s attachments to either one of the contracting states is the strongest, and accordingly which of his two residencies prevails. The tax treaty models adopt a binary approach. These mechanisms (aka referred to as tiebreaker rules) examine the different criteria seriatim in an orderly manner unless a conclusive result is reached which attaches the taxpayer to a single contracting state between the two. The tiebreaker rules include the following criteria in the following order: (a) the state in which the taxpayer’s permanent home is situated; (b) the state in which the taxpayer has the strongest social and economic ties (“center of vital interest”); (c) the state in which the taxpayer resides more frequently (“habitual abode”), and (d) the state of the taxpayer’s nationality. However, the tiebreaker rules are far from giving a perfect solution as we demonstrate in the next paragraph. The first problem with the treaty tiebreaker rules is that it is not entirely clear to what extent the list of criteria is still relevant and determinative in the 21st century. As such, it is not entirely clear whether the result that allocates taxing rights is meaningful.26 Secondly, absent the existence of a bilateral tax treaty, taxpayers may end up 26 As Professor David Elkins and Professor Svetislav Kostic´ have pointed out, individual preferences have changed, the economic reality and the way we live, work, travel, marry and bring children have also changed over the past century, and it is not entirely clear how pro-

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being subject to excessive taxation in several taxing jurisdictions for which there is no tax relief (unlike residence – source conflicts which are relieved using foreign tax credit unilaterally). Thirdly, the operation of article 4 requires that taxpayers are subject to a comprehensive tax (on a worldwide basis) and not solely on a territorial basis, however to the extent that the taxpayer is awarded a generous relief that taxes him on a worldwide basis but at an insignificant rate. Fourthly, the international regime and treaty models are operational only if the taxpayer is considered resident in more than one contracting state, however it does not eliminate the ability of taxpayers to be regarded as tax nomads and avoid worldwide tax altogether (or at least avoid being taxed on foreign source income), which in our view is unjustified and should not be possible. Fifthly, it is also not entirely clear that the binary approach, according to which only a single country may be regarded as the country of residence and is entitled to tax the taxpayer on a worldwide basis. There may be alternative approaches in assigning taxing rights based on residency, however these alternatives require incorporation of coordinating measures that eliminate double taxation between two or more conflicting countries of residence.27 Lastly, the period of time that is relevant for the examination of the tiebreaker rules is generally the current tax year (in full or in part). The year in which the income and gains are generated. However, as mentioned above, human labor generally relies on extensive educational and training processes, and as tax rules for determining residency generally disregard the facts and circumstances in previous years, the assignment of all taxing rights (as a resident) to country B may be unjustified. Consider, for example the following situation, Sarah was born in country A. After finishing high school there, she studied for a medical degree and passed all exams. As soon as she finished her degree and internship, Sarah migrated to country B, where she was hired as a physician. The existing tax rules disregard the three decades during which Sarah lived and studied in country A, and examines her residency for tax purposes in each year separately, and assign all taxing rights to country B. c) Non-Dom Regimes and the Bhagwati Proposal The disappointment with existing rules for determining fiscal residency and overreliance on physical presence, which de-facto has become less meaningful, has led more countries both to relax their immigration policies and to introduce residence/ citizenship investment schemes (CBI/RBI) which allow individuals to obtain citizenship or residence rights through local investments or against a flat fee. In 2018, the OECD presented a study in which it analyzed over 100 CBI/RBI schemes and identified approximately 28 tax jurisdictions that allegedly were abusive and posed a

found they are in determining fiscal residency in the 21st century. See Elkins, supra note 2; Kostic´, supra note 2. 27 Elkins, ibid. p. 44.

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high-risk to the integrity of the Common Reporting Standards obligations.28 Many of the countries that offered foreign citizens the opportunity to obtain citizenship or residence rights, also introduced preferential tax treatment, according to which after migrating and establishing a new residency, the migrants are taxed on domestic sources and are exempt both from reporting obligations as well as from being taxed on foreign source income and gains. This preferential tax treatment is generally referred to as a non-Dom tax regime. The issue of non-Dom status and the non-Dom regime itself caught the public attention when it was revealed that the UK prime Minister Rishi Sunk’s wife, Akshata Murty, has non-dom status, which has allowed her to live in the UK for many years and avoid paying UK tax on income and property she has outside the UK. This favorable tax regime has also been severely criticized for the generous tax breaks given to Russian Oligarchs, particularly since the Russian invasion of Ukraine. The UK non-Dom regime goes back to 1799. Prime Minister William Pitt the Younger introduced this tax breaks to shelter property situated outside of Britain from wartime taxes. The UK non-Dom regime still allows foreign citizens who reside in the UK to declare that they are domiciled in another country and to [only] pay UK taxes on their UK source income and on whatever foreign source income is remitted to the UK (on a remittance basis).29 Based on a recent publication issued by the UK tax authorities, in the tax year ending 2021, there were approximately 68,000 individuals claiming non-domiciled taxpayer status in the UK. These individual taxpayers were liable to pay approximately £8 billion in the UK.30 A recent study, conducted by Arun Advani, David Burgherr and Andy Summers, estimated that these taxpayers have at least £10.9 billion in offshore income and gains, and that abolishing this nonDom regime would raise an additional £3.2 billion in tax revenue.31 Similarly, over the years more European countries have followed suit, and adopted non-Dom regimes in order to attract foreign nationals. The list of countries includes Portugal, Malta, Spain, Cyprus, Italy, and Israel. We consider this regime abusive and as such recommend abolishing it altogether as it is unjustified.32 Alternatively, it is recommended to assign the taxing rights over such unreported and untaxed income and gains (including when such income is taxed significantly more leniently in comparison to other residents in that country) to the taxpayer’s country of origin/previous domicile. Our proposal aims to make sure that 28

https://www.oecd.org/tax/automatic-exchange/crs-implementation-and-assistance/res idence-citizenship-by-investment/#:~:text=While%20residence%20and%20citizenship% 20by%20investment%20%28CBI%2FRBI%29%20schemes,reporting%20under%20the% 20OECD%2FG20%20Common%20Reporting%20Standard%20%28CRS%29. 29 https://www.gov.uk/tax-foreign-income/non-domiciled-residents. 30 https://www.gov.uk/government/statistics/statistics-on-non-domiciled-taxpayers-in-theuk/statistical-commentary-on-non-domiciled-taxpayers-in-the-uk-2. 31 Advani/Burgherr/Summers, Reforming the non-dom regime: revenue estimates, CAGE Policy Briefing no. 38. 32 Kostic´, supra note 2.

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income and gains are taxed and if not to provide a means of compensation to the country of origin/domicile. This idea was first raised by Professor Bhagwati almost four decades ago. The Bhagwati tax proposed that the country of destination would impose a surtax of 15 % (which was later reduced to 10 %) on the cross-border migrants’ income and channel it to the country of origin as means to compensate the developing countries for the brain drain loss of their brightest taxpayers.33 Our proposal is clearly broader, does not impose a heavy administrative burden on the country of destination, and also does not impose excessive tax liability as such tax would only be imposed if the country of residence did not tax the taxpayer on a comprehensive basis and only if the taxpayer is not taxed similarly to other resident in that country. 4. The Israeli Case The Israeli income tax regime is based on a British tax ordinance which was enacted when the United Kingdom received the mandate to govern the country between 1920 and 1948. Originally the income tax ordinance of 1941 taxed domestic source income (it also taxed income that was remitted to Palestine) and as such, the interpretation of fiscal residency for tax purposes was relatively unimportant. It is therefore not surprising that over a period of five decades, only a handful court cases have discussed the issues of cross-border taxation of individuals and the definition of residency in the cross-border context. Fiscal residency for income tax purposes was determined based on continuous physical presence in Israel and based on the person’s intention to be a member of Israel (domicile concept that relies on the taxpayer’s subjective intention). In July 2002, the income tax regime underwent a significant reform. The tax reform replaced the territorial basis with a mixed system that taxes Israeli residents on a worldwide basis whereas nonresidents are taxed on a territorial basis. The tax reform also replaced the definition of residency and stipulated that fiscal residency will be determined according to the taxpayer’s personal, social and economic attachments to Israel (aka the “center of living” criterion, which resembles the second tiebreaker treaty rule).34 The new definition also included two rebuttable presumptions that rely on the taxpayer’s physical presence in Israel. The first presumption assumes Israeli fiscal res33 Bhagwati/Dellalfar, The Brain Drain and Income Taxation, World Development 1 (1973), 94; Bhagwati/Hamada, The Brain Drain, International Integration of Markets for Professionals and Unemployment: A Theoretical Analysis, Journal of Development Economies 1 (1974), 19. See also the extension of the model in Bhagwati/Hamada, Domestic Distortions, Imperfect Information, and The Brain Drain, Journal of Development Economies 2 (1975), 265; Bhagwati, Taxing the Brain Drain, Challenge 19 (1976), pp. 34 – 38; Bhagwati, International Migration of the Highly Skilled: Economics, Ethics and Taxes, Third World Quarterly 1 (1979), 17; Bhagwati, in: Bhagwati/Hanson (eds.), Skilled Immigration Today: Prospects, Problems, and Policies. 34 Sections 1, 2 and 89 of the Income Tax Ordinance.

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idency when a person spent more than 183 days in a calendar year. The second presumption assumes Israeli fiscal residency when a person spent more than 30 days in a calendar year and more than 425 days in Israel during the current and two preceding calendar years.35 The ordinance also changed the way nonresidents were defined. A foreign resident was defined as individuals who spent less than 183 days a year in Israel during two consecutive years and whose center of living was not in Israel during the following two consecutive years (four-years test). However, the Israeli Parliament did not refer to the minimal period (if any) required for purposes of giving up or acquiring fiscal Israeli residency. Over the years the income tax authority issued guidance which stated that the minimal period for giving up fiscal residency was set as a period of three calendar years.36 Several years later, in 2007, in preparation for the celebration of Israel’s 60th anniversary, the Israeli parliament introduced significant tax breaks to newcomers and to Israeli citizens who had left Israel for a minimal period of 6/10 years and decided to come back and reacquire Israeli residency (aka returning residents and senior returning residents). The new income tax regime, available to newcomers and to senior returning residents, exempted them from reporting obligations and from being taxed on foreign source income for a ten-year-period (the Israeli non-Dom regime).37 The State of Israel was established in 1948 as the national home of the Jewish people. The State of Israel is somehow unique as approximately one third of its population was not born in Israel and migrated to it,38 while the numbers of Israeli who left Israel is estimated to be less than 10 % (some of whom were people who migrated to Israel and after a period there decided to leave) and based on this statistical data, approximately 78 % of the people who migrate from Israel return back within a six year period and approximately half of the people who had left Israel returned back within a five year period.39 The movement of Israeli citizens from the country and back has led to litigation between taxpayers who claimed they were entitled to be considered non-residents and exempt from reporting obligations and from being taxed in Israel altogether (nomads) or alternatively to be considered residents while qualifying for the benefits under the Israeli non-Dom regime. One of such court case was the Ploni case, in 35

Section 1of the Income Tax Ordinance, which defines fiscal residency for individuals and for entities. 36 Israeli Income Tax Circular 3/2012; Private Letter Ruling 2519/17 and Private Letter Ruling 6830/17. 37 Sections 14 and 97 of the Income Tax Ordinance of 1961. 38 Statistical data collected by the central bureau of statistics in 2021 https://www.cbs.gov. il/he/mediarelease/DocLib/2021/418/11_21_418b.pdf. 39 Ben-David, Leaving the Promised Land – a review of the migration from Israel challenge, 2019, available at: https://shoresh.institute/archive.php?src=shoresh.institute&f=res earch-paper-heb-emigration.pdf (accessed at 11. 3. 2023).

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which the the judgment was given by Justice Danziger. We recommend that this court ruling should become an integral part of the customary international tax regime. The Ploni Case analyzed the fiscal residency of an Israeli citizen, who was born in a foreign country and migrated with his family to Israel when he was eleven years old. The taxpayer had lived in Israel ever since, got married to an Israeli citizen, and had four children with her. At some point in time, the taxpayer started doing businesses overseas and had to divide his time between Israel, where his family resided, and where he had small businesses and several foreign countries where he operated multi-million businesses. The taxpayer asserted that he should be viewed as being a non-Israeli resident for tax purposes even though he did not acquire any tax residency in any other state, or alternatively that he should be liable to tax in Israel only in respect of income from Israeli sources pursuant to the non-Dom preferential arrangement offered by the Israeli income tax system to cross-border migrants (newcomers and Israeli citizens who return home after spending a significant period overseas). Justice Danziger held that the taxpayer maintained his Israeli residency and as such should have been subject to tax on the hundreds of millions of U.S. dollars of foreign source income he generated. Justice Danziger’s opinion in our view has an important role in forming the way that fiscal residency for tax purposes should be determined (when a taxpayer claims to be a nomad), but also in sending a clear message about the role of the international tax regime in eliminating double taxation but also in eliminating double non-taxation. Justice Danizger addressed a weakness in the existing international tax regime which does not include sufficient measures to eliminate efforts by taxpayers to be exempted from worldwide taxation altogether, either by claiming they have no fiscal residency under the operation of any tax system in the world, or simply by claiming to qualify for the benefits of non-Dom regimes. Justice Danziger concluded that in interpreting fiscal residency (in our context in determining whether one’s center of living is no longer within the state of Israel), the taxpayer’s residency status in a foreign country should be examined and the fact that such income and gains are untaxed in a different country should also be used as an indication in interpreting the person’s residency for tax purposes: Failure to pay the tax in any other country may, in some cases, be used as an additional indication that weakens the taxpayer’s claim that he maintains a life center outside of Israel.40 Following the Ploni court ruling, which rejected the taxpayer’s claim to be considered a tax nomad, and also rejected the ability of the taxpayer to be entitled to the generous tax breaks under the Israeli non-Dom regime, two additional cases were litigated in Israeli courts. Each of the two taxpayers in those cases was single, in their 20s and 30s respectively, one was an international poker player, who participated in international poker tournaments having no fixed place in the world, who occa40

The Ploni Case, in paragraph 21 of Justice Danziger’s judgment.

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sionally visited his parents and brother/sister, whereas the other taxpayer was a supermodel who travelled from one place to another, and who allegedly having no fixed place, who had also spent several months a year in Israel with her parents and brothers. The two court decisions followed Danziger’s judgment and held that the ability to claim non-Israeli residency status would be more challenging for Israeli born taxpayers, and for single taxpayers who did not marry and bring children. The courts emphasized the social contract between taxpayers and the State of Israel, and that such relations also include the obligation to pay taxes to the country in which they are members to maintain civil society. These court judgments are also consistent with the undertaking of approximately one hundred countries, who have entered into the OECD’s Multilateral Convention to Implement Tax Treaty Related Measure to Prevent Base Erosion and Profit Shifting (the MLI). The MLI was signed in Paris in June 2017, and it entered in force in Israel on 1 January 2019. The MLI does not replace existing bilateral treaties completely. Rather, it supplements the existing treaties and interprets their operation/application in order to be consisten with measures to address base erosion. Even though the MLI does not specifically address the manner in which residency is determined, it declares that tax treaties should be interpreted “without creating opportunities for non-taxation or reduced taxation through tax evasion or avoidance”.41

II. Concluding Remarks The concept “one person one country” is less relevant in the world we live today as more and more people are on the move. Cross-border migration has reached unprecedented levels in the 21st century and the numbers of cross-border migrants continue to rapidly grow, partly due to technological and communicational advancements. This has also changed the significance of the geographical nexus and in our view calls for the reexamination of the existing rules for taxing cross-border individual taxpayers. This paper focuses on the residence basis, and it challenges the connecting factors that determine fiscal residency (the define the taxpayer as its member) both by domestic tax systems and by the tax treaty models, and, not less important, challenge the binary approach which assigns taxing rights of the country of residence to a single jurisdiction where attachment to the taxpayer is considered the strongest. In our view the time has come to revisit the connecting factors that determine residency, and not less importantly to consider replacing the binary approach with a scalar approach which we submit could result in fairer results.

41 Multilateral Convention to Implement Tax Treaty Related Measure to Prevent Base Erosion and Profit Shifting, available at: https://www.oecd.org/tax/treaties/multilateral-conven tion-to-implement-tax-treaty-related-measures-to-prevent-BEPS.pdf.

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Lastly, we wish to continue Justice Danziger court ruling which was also pursued by the OECD Multilateral Instrument. We believe that the international tax regime should limit the opportunities that exempts persons from paying tax altogether or that allows a significantly reduced tax burden. We therefore call to incorporate rules that would assign taxing rights to the country of origin/previous domicile whenever the country of residence does not tax the individual taxpayer both on a comprehensive basis and in a meaningful manner. Assigning the taxing rights to the country of origin/ previous domicile acknowledges that country’s contribution (“investment”/costs it incurred) to the taxpayer’s human capital. Bibliography Abbott, Ryan/Bogenschneider, Bret: Should Robots Pay Taxes? The Policy in the Age of Automation, Harvard Law and Policy Vol. 12, Review, 2018, pp. 145 – 175. Advani, Arun/Burgherr, David/Summers, Andy: Reforming the non-dom regime: revenue estimates, CAGE Policy Briefing no. 38, September 2022. Avi-Yonah, Reuven S.: Globalization, Tax Competition, and the Fiscal Crisis of the Welfare State, Harvard Law Review Vol. 113, 2000, pp. 1573 – 1676. Avi-Yonah, Reuven S.: Taxing Nomads: Reviving Citizenship-Based Taxation for the 21st Century, Law & Economics Working Papers, 2022. Avi-Yonah, Reuven S.: The Structure of International Taxation: A Proposal for Simplification, Texas Law Review Vol. 74, 1996, pp. 1301 – 1359. Ben-David, Dan: Leaving the Promised Land – a review of the migration from Israel, 2019, available at: https://shoresh.institute/archive.php?src=shoresh.institute&f=research-paperheb-emigration.pdf (accessed at 11. 03. 2023). Bhagwati, Jagdish N.: International Migration of the Highly Skilled: Economics, Ethics and Taxes, Third World Quarterly Vol. 1 No. 3, 1979, pp. 17 – 30. Bhagwati, Jagdish N.: Overview of Issues, in: Bhagwati, Jagdish N./Hanson, Gordon (eds.), Skilled Immigration Today: Prospects, Problems, and Policies, Oxford 2009. Bhagwati, Jagdish N.: Taxing the Brain Drain, Challenge Vol. 19 No. 3, 1976, pp. 34 – 38. Bhagwati, Jagdish N./Dellalfar, William: The Brain Drain and Income Taxation, World Development Vol. 1, 1973, pp. 94 – 101. Bhagwati, Jagdish N./Hamada, Koichi: Domestic Distortions, Imperfect Information, and The Brain Drain, Journal of Development Economics Vol. 2, 1975, pp. 265 – 279. Bhagwati, Jagdish N./Hamada, Koichi: The Brain Drain, International Integration of Markets for Professionals and Unemployment: ATheoretical Analysis, Journal of Development Economics Vol. 1, 1974, pp. 19 – 42. Brauner, Yariv: An International Tax Regime in Crystallization-Realities, Experiences and Opportunities, Public Law Research Paper No. 43, 2002, pp. 259 – 328. Brauner, Yariv: Brain Drain Taxation as Development Policy, Saint Louis University Law Journal Vol. 55, 2010, pp. 221 – 268.

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Brauner, Yariv: Mobility of Individuals, the Brain Drain, and Taxation in the Digital Age Draft, July 2022. Central Bureau of Statistics, Selected Data on the Occasion of International Migrant Day, 2021, available at: https://www.cbs.gov.il/he/mediarelease/DocLib/2021/418/11_21_418b.pdf (accessed at 12. 03. 2023). De La Feria, Rita/Grau Ruíz, Maria Amparo: Taxing Robots, in: Grau Ruíz, Maria Amparo (ed.): Interactive Robotics: Legal Ethical, Social and Economic Aspects, Cham 2022, pp. 93 – 99. Elkins, David: A Scalar Conception of Tax Residence for Individuals, Virginia Tax Review Vol. 41, 2020, pp. 149 – 201. GOV.UK: Statistical commentary on non-domiciled taxpayers in the UK, July 2022, available at: https://www.gov.uk/government/statistics/statistics-on-non-domiciled-taxpayers-in-theuk/statistical-commentary-on-non-domiciled-taxpayers-in-the-uk-2 (accessed at 12. 03. 2023). GOV.UK: Tax on foreign income: ‘non-domiciled’ residents, available at: https://www.gov.uk/ tax-foreign-income/non-domiciled-residents (accessed at 12. 03. 2023). Graetz, Michael J.: The David R. Tillinghast Lecture: Taxing International Income: Inadequate Principles, Outdated Concepts, and Unsatisfactory Policies, Tax Law Review Vol. 54, 2001, pp. 261 – 336. Hongler, Peter: International Law of Taxation, Oxford 2021. Income Tax Ordinance, 1961, available at: https://www.icnl.org/wp-content/uploads/Israel_Ordi nance.pdf (accessed at 12. 03. 2023). Israeli Tax Authority: Israeli Income Tax Circular, March 2012. Israeli Tax Authority: Private Letter Ruling 6830/17, October 2017. Israeli Tax Authority: Private Letter Ruling 2519/17, November 2017. Kostic´, Svetislav V.: International Taxation and Migrations, in: Brauner, Yariv (ed.), Research Handbook on International Taxation, Cheltenham 2020, pp. 353 – 368. MBO Partners 2022 State of Independence Research Study, available at: https://www.mbopart ners.com/state-of-independence/digital-nomads/ (accessed at 12. 03. 2023). McAuliffle, Marie/Triandafyllidou, Anna (eds.): World Migration Report 2022, International Organization for Migration (IOM), Geneva 2021 (cited as: UN Global Report 2022). Narotzki, Doron: Tax Treaty Models – Past, Present, and a Suggested Future, Akron Law Review Vol. 50, 2017, pp. 383 – 423. Organization for Economic Co-operation and Development (OECD), Multilateral Convention to Implement Tax Treaty Related Measure to Prevent Base Erosion and Profit Shifting, available at: https://www.oecd.org/tax/treaties/multilateral-convention-to-implement-tax-treaty-re lated-measures-to-prevent-BEPS.pdf (accessed at 12. 03. 2023). Organization for Economic Co-operation and Development (OECD), Residence/Citizenship by investment schemes, available at: https://www.oecd.org/tax/automatic-exchange/crs-imple mentation-and-assistance/residence-citizenship-by-investment/#:~:text=While%20resi dence%20and%20citizenship%20by%20investment%20%28CBI%2FRBI%29%20schemes,

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reporting%20under%20the%20OECD%2FG20%20Common%20Reporting%20Standard% 20%28CRS%29 (accessed at 12. 03. 2023). Vogel, Klaus: On Double Taxation Conventions, Vol. 1, 2014 (edited by Ekkehart Reimer and Alexander Rust, 4th edition). Weissbrodt, David/Collins, Clay: The Human Rights of Stateless Persons, Human Rights Quarterly Vol. 28, 2006, pp. 245 – 276. Wenden, Catherine: New Migrations: Why are more people on the move than ever before and where they are going? International Journal on Human Rights Vol. 13, 2016, pp. 17 – 27. World Bank: Leveraging Economic Migration for Development: A Briefing for the World Bank Board, Washington D.C., September 2019 (cited as: World Bank Economic Report).

Regulation of Franchise Termination By Iris Soroker* Justice Danziger’s ruling in the Blum case exposes the drama of franchising and necessitates an examination of this important institution at breaking point, when the parties are in conflict and one of them wishes to exit the relationship. The end of the contract rocks the entire contractual boat and is likely to have an impact on the viability of the transaction. The regulation of franchise termination structures the incentives that operate on the parties to the agreement. If we allow the franchisor to terminate the relationship at will, it is likely to obliterate the franchisee’s investments, without allowing the latter to reap the fruits of its labor in the best manner possible. On the other hand, a heavy burden on the franchisor is likely to push the franchisee to reduce its investments and exacerbate the “free rider” problem. The power to leave a franchise affects the commercial certainty of the parties; it stretches the range of forces the parties will traverse during the agreement; and it shapes the commercial value of the franchise. In this article I propose a new arrangement on franchise termination. I will start with a review of the judgments in the various iterations of the Blum case and analyze the innovative precedent in these judgments. I will compare the Blum rulings with previous rulings, present an economic analysis of the franchise and propose a statutory arrangement on franchise termination against the background of the insights gained.

I. Introduction Justice Yoram Danziger’s ruling in the fascinating case of Blum v. Anglo-Saxon exposes the drama of franchising and necessitates an examination of this important commercial institution at breaking point, when the parties to the franchise agreement are in conflict and one of them wishes to exit the relationship. The end of the contract rocks the entire contractual boat and is likely to have an impact on the viability of the transaction for the parties. Generally, the question arises when the franchisor wishes to remove the franchisee – as happened in the Blum case.1 The question that needs to * Dr. Iris Soroker, a retired justice, is the head of the Heth Academic Center for Research of Competition and Regulation in the College of Management Academic Studies. 1 The judgments in the case of Blum v. Anglo-Saxon are as follows: O.M. (District, Tel Aviv) 1356/05 Blum v. Anglo-Saxon (published on Nevo Database, 25. 5. 2016); O.M. (District, Tel Aviv) 1427/05 Blum v. Anglo-Saxon (published on Nevo Database, 13. 7. 2016) (hereinafter, the “First Blum Case”); C.A. 5925/06 Blum v. Anglo-Saxon – Real Estate Agency (Israel 1992) Ltd. (published on Nevo Database, 13. 2. 2008) (hereinafter, the “Second Blum Case”); C.C. (District, Tel Aviv) 1959/08 Blum v. Anglo-Saxon Real Estate Agency (published on Nevo Database, 1. 5. 2013) (hereinafter, the “Third Blum Case”); C.A. 4232/13 AngloSaxon Real Estate Agency Ltd. v. Blum (published on Nevo Database, 29. 1. 2015; C.A. 4563/

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be decided is whether the franchisor may remove the franchisee at will, unilaterally, and if so – under what conditions. The decision on this question – the regulation of franchise termination – is likely to shape the content of the transaction. It structures the incentives operating on the parties to the agreement. If we allow the franchisor to terminate the relationship at will – the franchisor is likely to opportunistically obliterate the franchisee’s investments without allowing it to reap the fruits of its labor in the best possible manner. On the other hand, a heavy burden on the franchisor at the stage of exiting the relationship is likely to push the franchisee to reduce its investments in the transaction and exacerbate the “free rider” problem at the expense of the reputation of the chain and the other franchisees. The ease or difficulty in leaving a franchise relationship has a direct connection to the costs of the transaction. It has an impact on the commercial certainty of the parties, stretches the range of forces the parties will traverse during the agreement and it shapes the entire commercial value of the franchise institution. In this article I would like to propose a new statutory arrangement on termination of a franchise relationship. I will start the discussion with a review of the fascinating judgments in the four different iterations of the Blum Case and analyze the legal novelty the judgments offer. I will compare the Blum ruling to the previous rulings. Later on, I will present an economic analysis of the franchise relationship and propose a statutory arrangement on franchise termination against the background of insights raised from the economic analysis, and finally I will present my conclusion.

II. The Blum Case In the Blum Case, Justice Yoram Danziger revolutionized the rules on franchise termination: the old rule, which recognized flexibility when exiting the relationship, was transformed by a literal reading of the contract terms as formulated by the parties. It began like this: Anglo-Saxon is a national chain of real estate brokers. Eli Blum acted as a franchisee of the chain. The relationship between the parties was set out in a formal agreement in which Blum was granted an exclusive franchise for an unlimited period of time in the city of Herzliya. The chain also granted Blum a license to use its trademarks. Blum undertook to follow its instructions and safeguard the company’s reputation. A dispute arose between the parties in 2002 after more than twenty-five years of working together, when Blum asked to sell the franchise to another operator (so that he could allegedly exploit a real estate investment opportunity). Anglo-Saxon made its consent contingent on the franchise contract with the assignee containing new conditions, the main one being a limitation on the duration of the agreement. Blum argued that he was unable to find purchasers to agree to purchase the franchise 13 Anglo-Saxon Real Estate Agency Ltd. v. Blum (published o Nevo Database, 29. 1. 2015) (hereinafter, the “Fourth Blum Case”).

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under these conditions. He believed that he had a “proprietary interest” in the franchise and that Anglo-Saxon’s demand reduced its value. The dispute led to mutual claims. Anglo-Saxon argued that Blum was abandoning the franchise, and therefore notified him of its intention to terminate the contract. Unsuccessful negotiations were conducted between the parties. After several extensions, Anglo-Saxon notified Blum that the termination of the franchise would enter into effect (within several months). Blum did not agree to his removal. He applied to the court for a declaratory remedy that the franchise termination was wrongful. The Tel Aviv District Court dismissed Blum’s claim.2 It held that Anglo-Saxon would have been entitled to terminate the agreement upon delivery of reasonable advance notice, and this had been done. The court applied the well-known rule that “It is not the way of nations to make contracts to remain in effect in perpetuity. It is also not desirable economic or social policy to suspend a contract until eternity”.3 It was stated that “this is an agreement based on a relationship of trust, an agreement where the franchisee’s conduct has an impact on the profits of the chain and on its name and reputation, and therefore, according to case law, it should not be interpreted as an agreement where the chain denied itself the right to notify of rescission of the agreement within a reasonable period of time”.4 The court added, a obiter dicta, that the agreement had been lawfully terminated also against the background of the franchisee’s breaches of contract.5 This outcome was overturned in the Supreme Court.6 Justice Danziger held that Anglo-Saxon was in breach of the agreement because it had unlawfully rescinded it. Although a contract for an unlimited period of time may be rescinded upon reason-

2

The First Blum Case, supra note 1. C.A. 2491/90 Israel Association of Travel Agencies and Consultants v. Panel of Airline Companies Operating in Israel (published on Nevo Database, 3. 5. 1994). 4 The First Blum Case, supra note 1, paras. 20 – 21 of Judge Ronen’s judgment. The lower court dismissed the franchisee’s argument that Anglo-Saxon’s right to rescind the agreement is limited to the events stipulated in section 18 of the agreement between the parties. See supra, para. 12 of Judge Ronen’s judgment “this concerns cases where the franchisee will be declared bankrupt, dies without suitable heirs, is convicted of a criminal offense, endangers the AngloSaxon name or its trademark, he fails to make payments under the terms of the agreement, he closes the business for 30 consecutive days, etc.”. In the court’s opinion, “Section 18 should be interpreted broadly, in such manner that the loss of the foundation of trust between the parties constitutes a breach of the franchise agreement justifying its rescission by the [chain]”. See, supra, para. 23 of Judge Ronen’s judgment. 5 The lower court found an anchor point for Anglo-Saxon’s right to terminate the relationship also in the contract itself: it was held that when the franchisor lost its trust in the franchisee in view of the continuous neglect on his part, this should be deemed a breach of contract establishing a right of rescission. See supra, paras. 23 – 29 of Judge Ronen’s judgment. 6 The Second Blum Case, supra note 1. 3

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able notice,7 nonetheless, “this is only an evidential presumption, a presumption that may be rebutted by other evidence that was intended to help with interpreting the parties’ intention where it is unclear, but not to come in its place”.8 The question remains, is the general presumption consistent with the contract, or does the contract possess another arrangement.9 Justice Danziger carefully examined the provisions of the contract and held that “the agreement lays down several provisions explicitly setting forth the events in which each party may rescind it, as well as the date of rescission in each case”.10 Section 3 of the agreement determined the date of commence7

Justice Danziger cited, in concurrence, the Supreme Court rule. See, C.A. 46/74 Mordov v. Schechtman, 29(1) IsrSC 477 (1974); C.A. 442/85 Zohar v. Travenol Laboratories (Israel) Ltd., 44(3) IsrSC 661 (1990). 8 The Second Blum Case, supra note 1, para. 38 of Justice Danziger’s judgment who cited, in concurrence, the rule laid down. See the Israel Association of Travel Agencies and Consultants case, supra note 3, para. 15 of Justice Danziger’s judgment: “…The ruling does not determine a substantive rule, only a presumption that has the force of evidence. This presumption has two facets. First, it says that a contract for an unlimited period of time is not a perpetual contract. Second, it says that such a contract may be rescinded unilaterally. However, like a presumption, this presumption also, with its two facets, may be rebutted by evidence. At the end of the day, the presumption is merely to help us determine the intention of the parties, where this intention is unclear. It is not supposed to be in lieu of the intention of the parties, if it is possible to determine the intention of the parties, and to determine such intention on the basis of the evidence. It is also not supposed to exempt from having to find out what the intention of the parties was. It may be that the intention of the parties clearly arises from the circumstances, in which case the presumption will not be necessary or appropriate. For example, it may be that in the circumstances of a specific case it will not be right to say, according to the presumption, that the parties intended to allow a unilateral termination of contract at any time and for any reason. The circumstances are likely to show, for example, an intention that the contract would terminate upon the occurrence of a certain incident, or that one of the parties may terminate the contract if, and only if, certain conditions were satisfied”. 9 On this matter the guidelines adopted were those set down in C.A. 2850/99 Ben Hamo v. Tene Noga Ltd., 54(4) IsrSC 849, para. 8 of the judgment of Justice Strassberg-Cohen (2000): “The conclusion is derived from the nature of the agreement that perpetually denying a manufacturer the option of terminating the relationship with a distributor, which is like forcing a manufacturer to uphold an agreement until perpetuity, is contrary to commercial and legal logic and to commonsense. It is inconceivable to obligate a manufacturer to perform a distribution contract until perpetuity and to be tightly bound by the agreement when special circumstances are created undermining the foundations of the agreement. For example, where the distributor is in breach of the agreement or is in breach of the trust given to it. Such an interpretation is inconsistent with the purpose of the agreement. An examination of the nature and essence of the agreement shows that according to its objective purpose, the object of the clause is to deny Tene any right to rescind the agreement as long as the special circumstances have not been fulfilled. This clause gains significance in light of the rule that provides that a distribution agreement for an unlimited period of time can be rescinded by the manufacturer at his desire, upon giving reasonable notice. Generally, this right is available to a manufacturer bound by a distribution agreement with a distributor at any time and without the necessity for special circumstances. This clause comes along, according to its reasonable interpretation, and excludes the rule and prevents the rescission and enforcement of the agreement by the manufacturer as long as the aforesaid special circumstances have not been fulfilled”. 10 The Second Blum Case, supra note 1, para. 41 of Justice Danziger’s judgment.

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ment of the franchise, without a termination date. Blum himself was permitted to terminate the agreement “at any time” (upon 60 days’ prior notice), but at the same time he was prohibited from transferring the franchise to anyone else.11 Regarding AngloSaxon, section 18 of the agreement – this is the section that determined the dispute – specified a list of events in which “the Company may, at its sole discretion, terminate and rescind this Agreement”.12 Justice Danziger interpreted this to be a closed list of events in which Anglo-Saxon could rescind the agreement.13 Consistent with his method of interpretation that extolled the language of the agreement, Justice Danziger noted as follows: “I recently expressed my opinion that when the language of the contract is explicit, it must be given decisive weight when interpreting the agreement … and I believe that these comments are also pertinent to the present case before me … In the case forming the subject of this appeal, there is a written contract determining explicit provisions on rescission. It is therefore unnecessary to apply the presumption of the intention of the parties not to be bound by the agreement in perpetuity, and there is also no need to estimate what the intention of the parties was, since it found expression explicitly and accurately in the clauses on

11

Supra, para. 40 of Justice Danziger’s judgment: section 3(b)2 of the agreement provided that “Without derogating from the foregoing in this Agreement, the Operator is hereby granted a right to terminate this Agreement at any time, upon condition that the Company is given 60 days’ prior notice of his intention to do so, and in such case the Agreement will be terminated within the aforesaid 60-day period”. Section 6(c) of the agreement determined: “… the Operator hereby declares that he is aware that the franchise was granted only to him personally. The Operator may not sell and/or transfer and/or dispose of the franchise or the rights granted to him pursuant to the terms of this Agreement, in any form whatsoever, and also not permit any person and/or other entity to use the aforesaid or share in any consideration or in any manner under license or as a partner or in any manner whatsoever in the franchise granted to him under this Agreement, unless the Company grants its written consent thereto. The Company shall not refuse to give such consent, except upon reasonable grounds …”. 12 Supra. And briefly they are as follows: death of the Operator; a declaration of his bankruptcy; his conviction of a criminal offense; trademark infringement; non-performance of payments; failure to maintain books of account; conducting execution office proceedings against the Operator; in the event the business is closed for 30 consecutive days not by virtue of any strike or force majeure; and “in the event of breach of this Agreement by one of the parties to the Agreement”. Section 18(2) of the agreement determined a mechanism for rescission of agreement in the event of the occurrence of one of the following incidents: “In the event of the occurrence of one or more of the events set forth in this section and/or in the event of a breach of this Agreement by the Operator, the Company shall be obligated to deliver to the Operator a written notice to remedy the aforesaid breach within 15 days of the date of the letter before rescission of the Agreement by the Company, except in those events in which such an extension of time will cause the Company grave damage. Grant of such prior notice will not apply with respect to subsections b, c, g, d”. 13 Supra, para. 43 of Justice Danziger’s judgment: “The Agreement, which was drafted by Anglo-Saxon … explicitly provides the events in which there will be a right of rescission for each of the parties. According to the provisions of the Agreement, Blum is entitled to rescind the Agreement for any reason whatsoever, while Anglo-Saxon may only do so upon the fulfillment of one of the events stipulated in a closed list of events”.

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rescission set forth in the Agreement”.14 Danziger did not explain the contra proferentum rule because “the rescission clauses … are clear and explicit and from a reading of them it is absolutely clear when and under what circumstances each party may rescind the Agreement. I found no ambiguity in the Agreement or provision that was not clearly drafted, from which it could be inferred that a right to rescind the Agreement for any reason whatsoever was also given to Anglo-Saxon. However, I believe that the fact the Agreement was drafted by Anglo-Saxon … actually reinforces the conclusion that it was not given an equivalent sweeping right of rescission, because had Anglo-Saxon wanted to grant itself a similar right in the Agreement, it is under a presumption that it would have done so. Since it did not do so, it cannot now argue any imbalance between the parties’ rights”.15 This meaning, Danziger emphasized, is consistent with “simple commercial logic”: “According to this logic, a franchisee works and invests in the development of a franchise for many years, while the franchisor enjoys the fruits of such investment. Therefore, granting the franchisor a sweeping right of rescission will significantly reduce the franchisee’s incentive to develop it and may even cause it to hold off acquiring the franchise due to a constant fear of its rescission”.16 Anglo-Saxon was therefore found to be in breach of the agreement because it had sent a notice of rescission which was not explicitly covered in the list of permitted events. The franchisee, possessing a declaratory judgment, now filed a claim for the remedy of enforcement of the franchise. In the interim, the plot thickened because AngloSaxon transferred the franchise to another franchisee. In spite of this, the Tel Aviv District Court accepted Blum’s claim for enforcement.17 It was held that AngloSaxon had to return the franchise to the Plaintiff under the original contract. It was emphasized that “the remedy of enforcement is the first and principal remedy 14

Supra. Supra, para. 44 of Justice Danziger’s judgment. As is known, Justice Danziger is one of the prominent critics of the Aprofim ruling that champions a purposeful interpretation of a contract. See, C.A. 4628/93 State of Israel v. Aprofim Housing and Enterprise (1991) Ltd., 49(2) IsrSC 265 (1995). In a series of leading judgments, Justice Danziger established the approach emphasizing the language of the contract as the superior source for interpretation and application. See, for example, C.A. 5856/06 Levy v. Norcate Ltd., para. 27 of Justice Danziger’s judgment (published on Nevo Database, 28. 1. 2008); C.A. 8836/07 Balmoral Investments Ltd. v. Cohen, 63(3) IsrSC 557, paras. 35.2 – 35.8 of Justice Danziger’s judgment (2010); C.A. 11039/07 Eliyahu Insurance Company Ltd. v. Avner Motor Vehicle Accident Victims’ Insurance Association Ltd. (published on Nevo Database, 6. 7. 2011). 16 The Second Blum Case, supra, note 1, paras. 45, 50 – 51 of Justice Danziger’s judgment. Justice Danziger was willing to start out on the customary assumption that a fiduciary relationship forms the basis of a franchise, yet, in this case the argument was abandoned by AngloSaxon itself: it held on to a right “under law” to terminate the agreement, and not on loss of trust. Furthermore, in the pleadings, Anglo-Saxon stated that it was not alleging any breach of agreement but was relying on “its right to rescind for any reason whatsoever upon reasonable notice”. In these circumstances, it was held that “Anglo-Saxon never argued that it had lost its trust in the Petitioner, and in any event did not prove this argument”. 17 The Third Blum Case, supra, note 1. 15

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found in the Remedies Law, and only after this, in the order of remedies, is the remedy of damages”.18 The Court found that the agreement with the new franchisee was limited to a maximum period of ten years and therefore the “impossibility of performance limitation” could be overcome19 by means of “postponed enforcement” to a future date – after the end of the agreement between Anglo-Saxon and the third party. The lower court rejected the argument that franchising is a “personal service” negating enforcement.20 The “unjust enforcement” limitation was also rejected because the “current trend is to minimize the use of this limitation”.21 Alongside the remedy of enforcement, the Court also awarded damages: readjustment expenses after the franchise was taken, the value of the franchise over ten years until its return to the Plaintiff and also damages for non-pecuniary damage.22 Both parties appealed to the Supreme Court.23 Anglo-Saxon argued (for the most part) against the remedy of enforcement, whereas Blum’s appeal concerned (for the most part) the amount of damages. Justice Amit defined both questions to be heard: should enforcement be awarded ten years after the termination of the agreement? How should the damage incurred by the Respondent, if any, as a result of breach of the franchise agreement between him and the Appellant, be calculated? The remedy of enforcement was denied, both because this was a trust-based personal relationship, and because of the potential damage to the new franchisee that had just come into the picture.24 Justice Amit also applied the justice in contract enforce18

Supra, para. 40 of Justice Danziger’s judgment. The impossibility of performance limitation is set out in section 3(1) of the Contracts (Remedies for Breach of Contract) Law, 5731 – 1970. 20 The personal service limitation is set out in section 3(2) of the Contracts (Remedies for Breach of Contract) Law; the Third Blum Case, supra, note 1, para. 43 of Judge Bachar’s judgment: “This is not actually a direct relationship between the Defendant and the Plaintiff. The Defendant is the owner of property – the franchise – and it is permitting the Plaintiff – the franchisee – to use it for consideration. The Plaintiff is not granting any personal service to the Defendant but is making use of property which belongs to it”. 21 Supra, para. 44 of Judge Bachar’s judgment and see also, the unjust enforcement limitation set out in section 3(4) of the Contracts (Remedies for Breach of Contract) Law. 22 The Third Blum Case, supra, note 1, paras. 48 – 68 of Judge Bachar’s judgment. 23 The Fourth Blum Case, supra, note 1. 24 Supra, paras. 12, 15 of Justice Amit’s judgment: “We are concerned here with a franchise agreement in which Anglo-Saxon grants the franchisee a right to use its trademark and its brand within a specific territory and defined business methods. Franchising carries with it certain advantages for the franchisee, and inter alia, the fact that it operates under a recognized brand, alongside a nationwide marketing package, assistance with organizational development and creating advanced communication channels within the chain and with customers. AngloSaxon receives, in consideration, a one-time payment … and royalties of 10 % of the revenues. The relationship between Anglo-Saxon and the franchisee requires a certain degree of ongoing collaboration and communication: payment of monthly royalties, participation of the franchisee and its employees in training programs and advanced studies conducted by AngloSaxon, Anglo-Saxon’s supervision over the way the franchisee complies with its standards, reliance on Anglo-Saxon’s computer system, collaboration with various franchisees, and so 19

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ment limitation.25 Weight was given to the long passage of time and the relatively low standard of moral blame accompanying the rescission of the contract by AngloSaxon.26 In lieu of enforcement, Blum had been awarded damages for breach of contract, taking into account the extent of his contributory fault for the damage from the breach. For this purpose, an estimate was made on the value of future profits taken from Blum for the period of his lifetime, with a deduction for the general obligation imposed on an injured party to mitigate his damage, and which was manifested in this case by the franchisee’s ability to make a livelihood from an alternative business, in the absence of Anglo-Saxon’s business association.27 By way of estimation, it was held that the contribution of the “Anglo-Saxon” brand to Blum’s business activity amounted to 25 %, and therefore Blum was entitled to damages at a rate of 25 % of the estimated future profits taken from him as a result of the cancelation of the franchise.28 Anglo-Saxon was therefore found to be in breach of the agreement with the franchisee when it canceled the franchise not in accordance with one of the events specified in the contract. Blum was awarded damages for breach of contract for his life-

forth”; “Included as part of the personal service are contracts based on personal trust … For example, in the manufacturer/distributor-agent agreement, the case law has recognized a fiduciary relationship and cooperation obligating the parties to take into consideration the other party and for one party to advance the interest of the other party. Because of this relationship, it has been held that the agreement cannot be enforced and that it may be rescinded upon reasonable prior notice”. 25 Section 3(4) of the Contracts (Remedies for Breach of Contract) Law. 26 The Fourth Blum Case, supra, note 1, para. 16 of Justice Amit’s judgment: “Within the justice limitation, the court will examine the conduct of the parties and their moral blame (“the balance of blame”) alongside an examination of their interests and the damage to be incurred by each of them whether or not the contract is enforced (“the balance of damage”) … As part of the circumstances of the case, consideration should be given to the passage of time from the start of the dispute between the parties and from the date of rescission of the contract until a ruling…Enforcement of the agreement almost 15 years after Blum notified Anglo-Saxon of his desire to retire from the real estate business, 10 years after the agreement was rescinded, and where in the interim Anglo-Saxon had entered into an agreement with a new franchisee, an additional branch had been opened in Herzliya under the franchisee, the management of Anglo-Saxon had been replaced, many training programs and advanced studies had taken place, and obviously working arrangements and the technology package used in the Appellant’s franchisees’ work, had changed – all these considerations should all be taken into account”. 27 Supra, paras. 21, 29 of Justice Amit’s judgment. In practice, Blum did continue working as an independent realtor in Herzliya in the relevant years: “A true calculation of the damage incurred in consequence of taking away the franchise requires an examination of the report Blum produced before cancelation of the franchise, with a deduction of the profit he made after cancelation of the franchise” and taking into account the fact that Blum continued to operate as a longstanding realtor with his own independent reputation. 28 Alongside this compensation, the appellate court approved damages for the franchisee for readjustment expenses after the franchise was taken (NIS 15,000), and also for pain and suffering (NIS 100,000). See, supra.

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time, with a deduction of his obligation to continue to make an independent livelihood.

III. The Legal Novelty Justice Danziger’s ruling in the case of Blum v. Anglo-Saxon constitutes a new milestone in the regulation of franchise termination. Until this judgment, the prevailing rule had allowed each party to terminate an unlimited in time franchise contract upon “reasonable notice”, which was normally between a month and a year. The leading judgment was handed down in 1990 in the case of Moshe Zohar & Co. v. Travenol Laboratories (Israel) Ltd.29 This case involved an exclusive distributor who represented a medical equipment manufacturer in Israel. The contract between the litigants was unlimited in time. During the contract there were ownership changes in the manufacturing company, but the distributor was given notice that the relationship would continue as usual. About six years after signing the contract the manufacturer notified of termination of the relationship, upon three months’ notice, because it had adopted a distribution policy through subsidiaries. The manufacturer’s actual right to terminate the relationship upon unilateral notice was not disputed. “Taking into consideration the pace of commercial life, it is inconceivable that a contract, even one for an unlimited period of time, should bind the parties eternally in a relationship between a manufacturer (or supplier) and the various marketers promoting its sales. There is also another reason for this and that is the mutual trust that such a relationship entails … When one of the parties wishes to discontinue the relationship, there is no rhyme or reason to obligate him to continue with it against his will. The performance of a trust-based relationship cannot be guaranteed by coercion. The problem before us is not, therefore, if the commercial contract, including the contract between the manufacturer and the marketer, that was made for an unlimited period of time, can be rescinded upon giving reasonable notice, but rather what is the reasonable period of time required for the rescission notice”.30 Regarding the duration of reasonable notice, it has been held that this is a twofold examination: “first – a reasonable period of time from the commencement of the relationship until its cancelation. Second – the period of time allotted in the notice of cancelation. The first is intended to give the other party sufficient time to make a reasonable profit from the business and cover his expenses of time and labor, and also the expenses disbursed in its performance. In a commercial distribution transaction, it is also necessary to take into account the work, since the fruits of the investment and the work do not come to fruition immediately, but rather only after the passage of time, and sometimes even years. The second is intended to give the other party sufficient time to organize his business prior to termination of the relationship and find other 29 30

The Zohar Case, supra, note 7. Supra, para. 5(b) of Justice Netanyahu’s judgment.

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sources of profit. When the notice is not reasonable within one of the two above periods (or both), the canceling party has to compensate the other party for the damage incurred in consequence of this”.31 In that case it was held that the distributor is entitled to loss of profits for one year.32 The Zohar v. Travenol Laboratories case determined a clear rule: where there is a distribution agreement for an unlimited period of time, each party may terminate it at will, provided that reasonable notice is given to the other party. This rule reflects the view that “a perpetual obligatory relationship should not be enforced between parties to a contract … And even more so in the case of a contract based on a fiduciary relationship or on personal ties … and this was also explicitly determined with respect to a distribution contract”.33 The courts did not regard this rule as a purely factual and rebuttable presumption, but rather as a norm determining modes of conduct: “although the right of a party to an agreement, where no date has been determined for its termination, to leave it after giving notice to the other party, is based on an interpretation of the contract, this is a norm expressing a general presumption”.34 The ruling in Zohar v. Travenol Laboratories became accepted case law. Under it a franchisor was permitted to terminate an agreement with a franchisee upon delivery of reasonable notice, the concrete duration of which was decided according to the circumstances of the case.35 The judgment of the Supreme Court in the case of 31

Supra, para. 6 of Justice Netanyahu’s judgment. Opinions were divided over the legal cause of action according to which the duration of time of reasonable notice should be determined. Justice Netanyahu (in the minority opinion on this matter) applied the laws of unjust enrichment. See supra, para. 10 of Justice Netanyahu’s judgment. On the other hand, according to Justice Barak (with whom Justice Orr and Justice Bejski concurred), it was desirable to determine the reasonableness of the notice at the level of contract law. See supra, at 705 – 706. The duration of the period was determined by taking into consideration the manufacturer’s bad faith (which caused the distributor to believe that the relationship would continue), and also taking into consideration the relatively low price per product unit and the short business turnover requiring a relatively longer time to make a profit. 33 C.A. 355/89 Estate of Hinawi v. National Brewery Ltd., 46(2) IsrSC 70, para. 15 of Justice Cheshin’s judgment (1992). 34 C.A. 47/88 Hershtik v. Yakhin Hakal Ltd. 47(2) IsrSC 429, para. 6 of Justice Dorner’s judgment (1993). See also, L.C.A. 1516/05 Lamit Holdings Ltd. v. Menache H. Eliachar Ltd., para. 5 of Justice Grunis’ judgment (published on Nevo Database, 22. 2. 2005): “The wellestablished rule issued from this court is that an agreement for an unlimited time can only be rescinded by each of the parties to it, provided that notice thereof was given a reasonable time in advance”. 35 See for example, Israel Association of Travel Agencies and Consultants case, supra, note 3, para. 19 of the judgment of Justice Zamir. In that case a notice of one month was approved: “… Even if the contract was rescinded by right, and the rescission was carried out in good faith, it is still an obligation, with a contract for an unlimited period of time, to give notice on rescission of the contract a reasonable time before the date determined in the notice on termination of the contract. This is the reasonable notice obligation. This obligation may be concluded from the intention of the parties to the contract, who did not intend to allow the unilateral rescission of the contract, unless the rescission was preceded by reasonable notice. And this obligation may also be derived from the general obligation under section 39 of the 32

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Blum v. Anglo-Saxon did not toe the familiar line. Justice Danziger set the discussion on the question of terminating a franchise in a contractual setting and elevated the language of the franchise agreement.36 In the judgments handed down after the Blum case the rhetoric is pronounced that the right of contractual parties to rescind a contract for an unlimited period of time stems from a purely factual presumption, and this is rebuttable. This is no longer regarded as a norm of conduct, but as a tool to identify the intention of the parties – and this is decided according to the wording of the contract.37 Contracts (General Part) Law, 5733 – 1973 to act in a customary manner and in good faith. One way or another, this obligation received a stamp of approval from the court … Reasonable time, in any event, depends on the nature of the contract in the specific circumstances, including the reasons and circumstances of the rescission of the contract … Inter alia, it is necessary to consider in any event the effect of the rescission on the situation of the parties. It is particularly important to consider if the party injured by the rescission needs time to prepare for the rescission or to mitigate the extent of the damage, or to organize an alternative arrangement. In the final reckoning, when determining reasonable time, the aspiration should be to a desirable balance of the extent of the damage of the two parties between themselves”. See also, C.A. 9099/96 Yedioth Ahronoth v. Firstenberg, 53(5) IsrSC 1, para. 23 of Justice Tirkel’s judgment (1999). In that case a year warning was determined: “… The court had to determine the period of the advance notice according to the circumstances of the case … I believe that an advance notice period of two years … is too long, mainly taking into account the fact that the contractual relationship between the litigants lasted only a relatively short period of about a year and a half. Alongside this consideration, weight should be attributed to the investments of time and of money the Respondents invested, the fruits of which have not yet been seen … In view of these considerations, it seems to me that the court’s decision should remain in effect … In other words, an advance notice period of one year”. 36 It should be noted that Blum’s motion for a further hearing was dismissed. See C.F.H. 1075/15 Blum v. Anglo-Saxon Real Estate Agency (Israel –1992) Ltd. (published on Nevo Database, 9. 3. 2015). 37 See, for example, these judgments: C.A. 3496/08 Extra Institute for Vehicle Licensing Ltd. v. National Vocational Training College Sachnin Ltd. (published on Nevo Database, 16. 11. 2010) – the presumption that the contract was not made in perpetuity is rebuttable; O.M. (District Tel Aviv) 576/07 Leader Toys Ltd. v. The Little Tikes Company (published on Nevo Database, 9. 6. 2013) – where the parties have determined in the contract the way it should be terminated, this agreement should be respected; C.C. (District, Beersheba) 7300/06 Noam Barash Ltd. v. Ma’ariv Modi’in Publishing House Ltd. (published on Nevo Database, 26. 2. 2012) – there is a presumption that a contract not signed on time may be canceled upon reasonable notice; C.C. (District, Tel Aviv) 2228/06 A.E. Inbar Holdings and Real Estate Ltd. v. Naish International, Inc. (published on Nevo Database, 6. 6. 2013) – the parties to a contract for an unlimited time can rescind it upon reasonable notice; C.C. (District, Haifa) 56169-03-11 Korem v. Anana Ltd. (published on Nevo Database, 15. 10. 2013) – the presumption that a contract is not made in perpetuity applies with respect to any commercial contract; C.C. (District, Jerusalem) 45359-05-11 Haim Levy Vehicle Agency and Jerusalem Regional Garage (1998) Ltd. v. Carasso Motors Ltd. (published on Nevo Database, 11. 6. 2014) – rebutting the presumption on the intention of the parties to terminate a contractual relationship for an unlimited period of time, by delivery of reasonable notice – requires actual evidence; C.C. (District, Tel Aviv) 1593/09 GEFEG-NEKAR antriebssysteme GmbH v. Mitronix Ltd. (published on Nevo Database, 11. 1. 2016) – the right of each party to a contract to terminate it if it is for an unlimited period of time – is subject to the interpretation of the contract in relation to the intention of the parties.

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IV. About Blum and Zohar and Everything in Between The comparison between the two leading judgments reveals substantive differences. Moshe Zohar was awarded a pecuniary remedy in the form of loss of profits for a period of one additional year. In contrast, Eli Blum was awarded a pecuniary remedy in the form of loss of profits for the duration of his lifetime (with a deduction of the duty to mitigate the damage). In the case of Zohar, the legal guideline was that the manufacturer is entitled to terminate the distribution relationship by giving “reasonable notice”. In the case of Blum, the legal starting point was the opposite: the chain could not terminate the franchise, and therefore it had to compensate the franchisee for the unauthorized removal of the contractual entitlement. Prima facie, this gap may be explained on the basis of the difference between the franchise agreements: in both cases the contracts were indeed for an unlimited period of time; however, in Blum’s case, in contrast to Zohar’s case, one of the sections of the contract specified events which granted Anglo-Saxon the explicit right to rescind the agreement. This section was interpreted literally, as denying the termination of a franchise upon reasonable notice without giving reasons, or termination deriving from actual damage to the element of trust.38 It was held that Anglo-Saxon certainly knew how to protect itself as drafter of the contract, when it specified in the contract those events entitling it to the right of rescission.39 I would like to propose that the attempt to distinguish between the two judgments on a purely factual basis – misses the full legal picture. The differences in the results cannot be reconciled only from differences in drafting between the contracts, rather there are differences in policy and perspective. The starting point of the court in each 38 On this matter, see the Second Blum Case, supra, note 1, para. 43 of Justice Danziger’s judgment: “There is no need to exercise the presumption on the intention of the parties not to be bound by the agreement for eternity and there is also no need to estimate what the intention of the parties was, since it is explicitly and accurately expressed in the sections on rescission determined in the agreement”. 39 Supra, para. 44 of Justice Danziger’s judgment: “… I believe that the fact that the agreement was drafted by Anglo-Saxon (or someone on its behalf) actually reinforces the conclusion that it was not given an equivalent sweeping right of rescission [to Blum’s right], because had Anglo-Saxon wanted to grant itself a similar right in the Agreement, it is under a presumption that it would have done so. Since it did not do so, it cannot now argue any imbalance between the rights of the parties”. It should be noted that the contractual interpretation that was adopted exacerbated the relative position of the drafter: both in comparison to the franchisee, who held an explicit right to terminate the agreement “at any time, on condition that he gives the company prior notice”. See, supra, para. 40 of Justice Danziger’s judgment; and also, in comparison to the general law formulated in the Zohar case, supra note 7, and under which it may be assumed that whoever enters into a contract without a time limit wishes to keep hold of a right to terminate the contract upon reasonable notice. It is therefore possible to challenge the given interpretation and suggest that in section 18 the chain wanted to specify the specific events for the purpose of guiding the franchisee and the prevention of doubt, but without ruling out the general possibility of leaving the relationship upon delivery of reasonable notice. As may be recalled, this was also the interpretation given by the lower court.

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case was different: the ruling in the case of Zohar v. Travenol Laboratories applied a norm according to which a party to a contract for an unlimited period of time holds in its possession a Hohfeldian power of release against the other party, unless the contract explicitly rules this out. On the other hand, the court in the case of Blum v. AngloSaxon approached the contract without any preconceived notions and applied it as it was, according to its words.40 According to Justice Danziger, the contract which was drafted by the parties optimally and exclusively reflects their intention. Any external intervention is likely to upset the contractual balance that is reflected in the language of the contract.41 Justice Danziger’s ruling gives the parties to a franchise the incentive to properly define, in the contract itself, their rights and obligations, before they embark on the franchise journey.

V. Franchise Termination: Economic Analysis The regulation of franchise termination is expected to affect the content of the transaction and the franchise structure. The Nobel prize winner for Economic Sciences, Oliver Williamson, laid down a theoretical foundation for the analysis of structures of transactions through the prism of the incidental transaction costs. In a monumental work from 1979, Williamson proposed that there is a direct connection between the incidental transaction costs and the business structure the parties would form.42 The business costs are all those costs incidental to realization of the transaction: gathering information, negotiations, enforcement costs. Williamson argued that a transaction is effective when its structure minimizes its costs. According to the intensity of the transaction costs, the transaction structures will vary in range between a simple promise (where costs are relatively low) up to the acquisition of ownership in the activity forming the subject of the transaction (where transaction costs are high). Three types of costs are likely to be burdensome for the parties: specific investments; 40 Justice Danziger noted that the literal interpretation is consistent with the commercial logic of a franchise contract. See the Second Blum Case, supra, note 1, para. 45 of Justice Danziger’s judgment: “…In franchise agreements, the franchisee works and invests in the development of the franchise for many years, while the franchisor enjoys the fruits of such investment. Therefore, granting the franchisor a sweeping right of rescission will significantly reduce the franchisee’s incentive to develop it and may even cause it to hold off acquiring the franchise due to a constant fear of its rescission”. 41 Supra. Obviously, his approach is not unique to franchise contracts, but is part of his overall interpretational perspective that grants priority to the language of the contract, out of respect for the wording adopted by the parties. See, for example, the Levy case, supra, note 15, para. 27 of Justice Danziger’s judgment; C.A. 7379/06 G.M.H.L. Construction Company 1992 Ltd. v. Tahulian, para. 1 of Justice Naor’s judgment (published on Nevo Database, 10. 9. 2009); C.A. 9551/04 Asfan Construction and Development Ltd. v. State of Israel, paras. 23 – 24 of Justice Danziger’s judgment (published on Nevo Database, 12. 10. 2009); the Balmoral Investments Ltd. case, supra, note 15, paras. 24 – 25 of Justice Danziger’s judgment. 42 See, Williamson, Transaction-Cost Economics: The Governance of Contractual Relations, Journal of Law and Economics 22 (1979), p. 233 et seq.

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bounded rationality; and fear of opportunism on the part of the other contracting party. Where specific investments were invested in a transaction, they restrict mobility and create the dependency of the contracting party on the other party. Bounded rationality exists where the future conceals uncertainty (particularly with continuing transactions) and the ability to plan them is impaired. This is so when the player before you is random or one-time (in contrast to a “ecurring player”) and it may therefore not shy away from extortive measures. Where the intensity of these costs is low, we will expect to see “weak” business structures, to the point of being satisfied by a simple promise or “modest” contract. On the other hand, if the intensity of the transaction costs is high, strong and tight transaction structures may be observed. The parties will try and create perseverance incentives with the other party, to make the transaction worthwhile and any breach of it not worth the trouble. It may be assumed that such a transaction will be set out in a contract filled with mutual clauses and combined obligations. The parties are likely to further demand performance guarantees and determine private litigation mechanisms (such as arbitration). In extreme cases, where the value of the transaction cannot be safeguarded by contract, we will observe the structure of vertical integration: the contract will be converted by the acquisition of ownership, because of the contracting entity’s fear of opportunism and its desire to ensure for itself maximum control of the activity forming the subject of the transaction. The transaction costs theory was recognized in the economic literature analyzing the institution of franchising. Economists have identified a connection between the franchise structure and the double-sided moral hazard the parties find themselves in: on the one hand, the franchisee fears opportunistic conduct on the part of the franchisor, who may discard him at a “high point” and not allow him to reap the fruits of his investment. On the other hand, the franchisor fears the franchisee will abuse the sale power of the trademark the franchisor brings with it to the relationship. The franchisee is likely to cut back on the quality of the services he provides to the bare minimum, while benefiting from the investments of the chain and the other franchisees. This phenomenon is known as the “free rider problem”. The moral hazard of the contracting parties in a franchise institution is mutual and will push them to attempt to build a transaction to minimize the hazard to both of them. The franchise structure will be effective when it provides an incentive to both parties to optimally invest in the transaction. Obviously, the intensity of the hazard that each assumes is not necessarily symmetrical. For example, in the case of a new transaction, the level of investment required from the franchisee will be relatively higher and his hazard will increase. On the other hand, if this is a transaction characterized by one-time customers, this is likely to be an incentive for the franchisee to reduce the quality of the services, and this is the franchisor’s moral hazard.43 43 See the clear and illuminating analysis in Argyres/ Bercovitz, The Impact of Efficiency and Bargaining on Contract Structure: Evidence from Franchising, Atlanta Competitive Advantage Conference 2010 Paper.

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The contract duration and determination of methods of termination express how the parties contend with the problem of the double-sided moral hazard. Generally, it may be assumed that a long-term contract is intended to compensate a contracting party for a significant investment in the transaction. The more specific the investment – and the harder it is for the contracting party to move its investment to another activity – the more it will want to protect its investment against arbitrary removal. A prolonged franchise is likely to protect the franchisee against opportunistic removal by the franchisor.44 On the other hand, if the contract grants the franchisor a right of removal of the franchisee at its discretion, it may be assumed that it was designed to allow it to closely supervise the franchisees and prevent free rider conduct on their part. Even if the franchisor does not exercise the right of removal, the fact it has such a right is likely to discipline the franchisee and encourage it to do its best. The franchisor’s power to terminate the franchise at will is understood as self-regulation, allowing the chain to act against shirking.45 On the face of it, a franchise contract negotiated and formulated between business people may be considered a masterpiece of balances between diverging interests. However, on many occasions this is merely the relative bargaining power of one of the parties allowing it to draft the contract in a way that tilts in its favor. Sometimes, the franchisee is the “strong” party benefiting from the reputation of a successful marketer, particularly if there is territorial marketing and the franchisee has a local reputation. Also, a professional association is likely to support the franchisee and strengthen it by negotiating with the franchisor. However, in a normal situation, the chain will be the heavyweight since it owns the trademarks, holds a network of branches and is equipped with professional activity and support mechanisms. Often these are standard contracts dictated to the franchisee by the chain, without it being able to significantly affect the terms of the contract. Indeed, in Blum’s case the court noted that the drafter of the contract was Anglo-Saxon – the chain. In that same case the contract was interpreted in a manner limiting the chain’s power of release; however, if we assume that generally the chain would know how to draft the contract in the best manner possible for it, a literal interpretation of the contract is actually unlikely to protect the franchisee, despite the fact it is the relatively weaker party. Indeed, the power differences between the parties are likely to move the contract from the effective equilibrium and tilt it in favor of the chain. Justice Danziger’s interpretational approach assumes that the contract constitutes an optimal tool for reflecting the commercial intention of the franchisor and franchisee. However, an economic analysis of the contractual device shows it to be far from being a perfect solution. The contract is indeed a powerful legal device in commercial relations, but it suffers from the problem termed the “problem of the incomplete con-

44

Supra, at 15. Klick/Kobayashi/Ribstein, Federalism, Variation and State Regulation of Franchise Termination, Entrepreneurial Business Law Journal 3 (2009), pp. 358 – 360. 45

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tract”.46 In this area we can also utilize Oliver Williamson’s theory, when he argued that the rationality of the individual is always partial, in view of mankind’s inability to gather information, remember information and make repeated use of it without mistake, and also against the background of shortcomings in the language in which contracts are drafted.47 Bounded rationality embeds an inherent disability in the contract and on this account it will always be partial and deficient. The parties entering into a contract have limited information; they cannot predict every future event, think in advance about optimal solutions and clearly see every situation that may arise. The language is also limited. Different terms are ambiguous and a specific word may be interpreted in a different manner in different contexts and in different times. As a result, the parties are unable to write a contract in advance that will cover all the options they may actually encounter. The harder the future is to predict, and the more complex the contract, the harder it will be to be specific when drafting the contract. Furthermore, the contract is likely to become undesirable in the future to one of the parties due to a change of circumstances. What is currently perceived to be “good” will not necessarily be so in the future.48 This problem is obviously exacerbated where there are continuing contracts intended to create a framework for a commercial relationship. The franchise contract is such a contract. General conditions require a franchisee “to make best efforts” or “to do its best” – and such similar phrasing – that were intended to allow future flexibility, but they suffer from extreme vagueness. Also, where various undertakings can be defined in advance, even in this case, interpretational questions are likely to arise. Hermalin, Katz & Craswell state that there is always a need for interpretation of a contract for its implementation, because of inherent problems associated with this device: vague language; bounded rationality; and the problem of asymmetrical information – creating an imbalance in the power balance between the contracting parties.49 46 On bounded rationality, see in brief: Waldman/Jensen, Industrial Organization: Theory and Practice, p. 56 et seq.; Carlton/Perloff, Modern Industrial Organization, p. 380 et seq. 47 Williamson, Markets and Hierarchies, Analysis and Antitrust Implications: a Study in the Economics of Internal Organization, pp. 21 – 23. 48 Worthy of note in this context is the doctrine of a “relational contract”, allowing the application of criteria of cooperation and mutual consideration to continuing trust-based relationships; this is in recognition of the fact that they help the parties produce a maximum mutual benefit from the relationship. See, for example Mautner, “How is Israel’s Contract Law Developing?”, Tel Aviv University Law Review 34 (2011), p. 527 et seq. 49 Hermalin, the Handbook of Law and Economics, pp. 63 – 94. Four inherent limitations in a contract: first, it is difficult to create a perfect contract in advance. Second, making a contract involves, by its nature, transaction costs, such as the costs of negotiations and the need to agree and define in advance solutions to various future situations. Third, there are enforcement costs; the contract is not always respected by the contracting parties. Litigation is expensive and is not necessarily effective. Finally, enforcement by means of the market is limited. Although the infringing contracting party is likely to weigh the cost of damage to his reputation as a result of a breach of contract, the damage to reputation may be small, and in any event less than the benefit expected in consequence of the breach. See, Klein/Crawford/Alchian,

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The problem of the incomplete contract thwarts the possibility of faithfully relying on the words of the contract as the perfect source to reflect the value of the commercial weight the parties wish to achieve. Indeed, the contractual device is a powerful device for self-regulation of transactions: nonetheless, it is impossible to ignore the fact that the words of the contract – mainly with continuing contracts – suffer from their own inherent disability. This disability requires us to relate to the wording of the contract with a hint of suspicion.50

VI. Regulation on Termination of a Franchise Relationship I would like to propose new regulation of the franchise relationship in a manner to help the parties achieve an effective balance and equitably protect the relational interests. The proposed regulation will be set out in dedicated legislation: “The Franchise Law” (dispositive) that will establish the right of each party to terminate the franchise contract upon delivery of reasonable notice to the other party, subject to presentation of reasonable justification for termination of the relationship.51 This arrangement balances between freedom of contract and the interest (private and public) to honor contracts as drafted by the parties, on the one hand, and market failure deriving from frequent power differences and from the need to protect the weak party against the opportunism of the other party, on the other hand. The option of each party becoming released from the relationship upon “reasonable justification” respects business freedom in contractual trust-based relationships and is consistent with the dynamism of commercial and marketing life. It denies the coercion of longterm relationships on parties who “no longer get along”. However, it is correct to make the contracting party’s power of release subject to a duty to give reasons presenting “reasonable justification” for the termination of the relationship – such as that the other party’s level of performance is not optimal. This rule is expected to moderate attempts at abuse of the power to release that prevents opportunism. On the Vertical Integration, Appropriable Rents, and the Competitive Contracting Process, Journal of Law and Economics 21 (1978), p. 297 et seq. 50 It is interesting, in this context, to take into consideration section 242 of the Draft Civil Code, 5771-2011, H.H. (Gov.) 595 proposing to impose a duty of trust not only in situations where a person is managing the assets of another person, but also in broader situations where an element of trust is required in a continuing relationship, including mutual undertakings and mutual dependence. This may be regarded as recognition of the view that contractual power is not perpetual but is limited by the basic values of the legal system, on the basis of principles of trust and fairness. 51 From the aspect of legislative technique, prima facie a proposed solution may be formulated by way of adding a dedicated chapter to the Contracts (General Part) Law. However, Israeli legislation in the area of specialized contracts is organized in dedicated laws, such as the Insurance Contract Law, 5741-1981; the Contract for Services Law, 5734-1974; the Sale (Apartments) Law, 5733-1973; the Gift Law, 5728-1968. It is worthwhile to follow this legislative method and also in connection with a franchise contract, to set out its arrangements in a dedicated law.

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other hand – it prevents being absolutely chained to a continuing commercial relationship. Such a rule is expected to encourage each party to improve its activity and improve its efforts in favor of the entire endeavor – otherwise the other party will be justified in removing such party. Of course, under freedom of contract, the parties will be able to contract out of the rule and determine a contractual regime at their choice; however, when doing so, they will be faced with a prevailing legislative norm and they will have to contract out of this explicitly. That is to say, to take this into consideration and give expression in the costing. Therefore, despite the fact this is a dispositive rule, it will serve as a guide and direct the behavior at the time of making the contract, and also as the default in the absence of any other individual contractual arrangement.52 In the United States, some states enacted laws obligating the franchisor to present “good cause” as a ground for the removal of a franchisee.53 Generally, this is not federal legislation, and treatment of this issue remained at the discretion of the legislatures in the various states. Statutes of this kind obligate the franchisor to give the franchisee advance notice of any intention of removal, and also a reasonable opportunity to remedy the alleged defect. The assumption behind such legislation is that franchise contracts are generally standard contracts dictated by the manufacturer and are therefore drafted in its favor. The purpose of regulatory intervention is to restore the balance of power at the moment of separation and prevent the arbitrary removal of a franchisee who has worked hard and invested in nurturing the franchise. The laws enacted in this area are likely to define what is “good cause” for terminating the relationship (such as a trust problem on the part of the franchisee or trademark infringement) and can leave implementation to the discretion of the court, according to the circumstances of the case. Empirical research published in 2016 showed that US courts generally confirm that the franchisor had good cause for terminating the rela-

52 Worthy of note in this context is the code of ethics formulated by the Israel Franchise Promotion Center, based on the customary arrangements in the United States and Europe; “Code of Ethics for Franchises” https://bit.ly/2V3tFJ6 (hereinafter, the “Code of Ethics”) and also: the Knesset – Research and Information Center, Managing Businesses under the Franchise Method – Chances, Risks and Arrangements (2005), see the link to the document: fs.knesset.gov.il/globaldocs/MMM/196e88ab-8e32-e811-80de00155d0a0235/2_196e88ab-8e 32-e811-80de-001555d0a0235_11_7032.pdf. The Code of Ethics refers to the pre-contractual relationship and also to the ongoing contractual relationship between a franchisor and franchisee. Companies signing the Code of Ethics receive a quality standard granted by the Israel Franchise Promotion Center. The Code does not regulate the legal aspect of termination of the contractual relationship but lays down a mode of ethical conduct: for example, section 6 of the Code of Ethics provides that a franchise agreement will regulate payment terms, the duration of the franchise and the conditions for sale of the franchise by the franchisee. Adoption of the Code of Ethics is likely to prevent contractual disputes arising in the future. 53 Barkoff/Fittante/Gardner Jr./Selden, Fundamentals of Franchising, pp. 196 – 202. For a comparative analysis of the state laws in the United States, including the “good cause” requirement, see Klick/Kobayashi/Ribstein, Federalism, Variation and State Regulation of Franchise Termination, Entrepreneurial Business Law Journal 3 (2009), pp. 360 – 366.

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tionship.54 The act of removal will not be approved in those cases where the removal is unrelated to the franchisee’s conduct, or in other circumstances making it unjust (such as where the franchisee made significant investments in nurturing the franchise). This research shows that the “good cause” rule is applied with restraint. Its function is to prevent abuse of the franchisee. This rule is also perceived as advancing the interest of fairness, important for the effective structuring of the contractual franchise.55 Legal and economic researchers presented the question, what is the effect of legislation obligating the franchisor to present “good cause” as a condition for removal of the franchisee. Some believe that fettering the franchisor’s discretion will likely increase free riding on the part of the franchisee, because it is protected against removal at the franchisor’s will. This approach regards the power of removal to be an effective mechanism of self-enforcement and emphasizes that there is value in the franchisor supervising franchisees to prevent abandonment and free riding. The fear is that a legal regime that makes it hard for a franchisor to remove a franchisee at its absolute discretion will be abused by the franchisee and lead it to reduce its marketing efforts and investments in the franchise to a bare minimum. On the other hand, there is literature that emphasizes the risk that exists in granting a sweeping right of removal. Arbitrary removal, without cause, is likely to be carried out in abuse of the franchisee’s investments and harm its economic interest. Not only is this unfair, but in the long-term this is actually likely to destabilize the transaction structure and damage the efficacy of the franchise institution.56 Empirical research undertaken in the hotel industry in the United States examined the connection between a legal regime requiring “good cause” as a condition for ter-

54 See, for example, the articles of Robert W. Emerson (one of the prominent authors on this topic): Emerson, Franchise Terminations: “Good Cause” Decoded, Wake Forest Law Review 51 (2016), p. 103 et seq.; Emerson, Franchise Goodwill: Take a Sad Song and Make it Better, University of Michigan Journal of Law Reform 46 (2013), pp. 375 – 378. 55 Lisus/Ship, Restrictions on Unilateral Termination of Franchise Agreements, Canadian Business Law Journal 49 (2010), p. 113 et seq. It is interesting to note that also in a legal regime that does not contain a “good cause” requirement for rescission of the contract, flexible review tools may be utilized whose purpose is to moderate the right of rescission and prevent arbitrary and opportunistic rescission. In their article, the authors describe the case law in Canada that generally allows a franchisor to terminate the franchise relationship only upon giving reasonable notice, without the requirement to present any justification, as derived from the component of trust forming the basis of the relationship. The authors propose that this is not an absolute right of rescission because it is subject to moderating rules: interpretation of the contract and also the duty to exercise contractual rights in good faith. 56 For an economic analysis of the laws in the United States obligating the franchisor to present “good cause” for removal of the franchisee, I will refer, for example, to Brickley/Dark/ Weisbach, The Economic Effects of Franchise Termination Laws, The Journal of Law and Economics 34 (1991), p. 101 et seq.; Beales III./Muris, The foundations of franchise regulation: Issues and evidence, Journal of Corporate Finance 2 (1995), p. 157 et seq.

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minating a franchise and the performance level of the franchisees.57 The research sought to examine the claim that a “good cause” regime is likely to make the exit costs borne by the franchisor more expensive, thereby weakening the franchisee’s entrepreneurial incentives and increasing free riding. The research referred to hotels belonging to a chain with branches spread out nationwide. The researchers reviewed the data appearing on tourism websites about guest satisfaction in hotel chains spread out in different states, where only some of them had enacted laws requiring “good cause” for removal of a franchisee. The findings of the research showed that no link can be found between the level of visitor satisfaction from the hotel – that is, the franchisee of the chain, and the question whether the legal regime in the state where the franchisee was operating includes a “good cause” statute. It was found that the main impediment currently restraining franchisees in the hotel industry against opportunistic conduct is the ranking of the hotels on the websites, on which guests report and share their experiences with the public. The researchers suggested that there is no empirical basis for assuming that the “good cause” requirement weakens the franchisee’s marketing incentives or increases the problem of free riding, or at least not in markets in which there are other significant policing factors. My proposal for the regulation – applying the criteria of “reasonable justification” for termination of a franchise – is based on considerations of distributive justice and of aggregate efficiency. At the level of distributive justice, the call to justify ending the relationship prevents opportunistic release. It creates a flexible link that mediates between the contracting parties in an effective way. The fear of opportunism is mutual: on the franchisee’s part, there is fear that the franchisor will rescind the contract at a high point – after the franchisee has already made considerable investments in the franchise – thereby contributing to the chain’s reputation, but it has not yet seen the fruits of its labor. This was prima facie the situation in the case of Zohar v. Travenol Laboratories, where a distributor operated for several years to penetrate a new product in the Israeli market but was removed by the manufacturer while on the verge of successful transactions. Also, on the franchisor’s part, there is fear that the franchisee will “pull a fast one” at its expense: it will benefit from the chain’s current reputation and trademarks, without significantly contributing anything to its reputation. Franchising raises the problem of free riding by the franchisee, because concurrent use is made of the chain’s trademarks by several participants: the franchisor and its franchisees. Each participant is expected to reap a benefit from its counterpart’s contribution to the chain’s reputation. In the long-term, a mutual contribution of each participant is expected to bear the aggregate profit of the chain; however, in the shortterm the franchisee is likely to reduce its personal investments, in an attempt to lean on the marketing efforts of another franchisee.58 The franchisor’s right to remove a 57 The research was conducted by two researchers from Israel: Ayal/Benoliel, Good-Cause Statutes Revisited: An Empirical Assessment, Indiana Law Journal 90 (2015), p. 1177 et seq. 58 The problem of free riding in connection with the franchise institution was analyzed in the article Klein/Saft, The Law and Economics of Franchise Tying Contracts, Journal of Law and Economics 28 (1985), pp. 349 – 351.

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shirking franchisee is likely to curb the problem of free riding; but if we recognize it in its sweeping form – we are likely to create a problem on the other side: we will push the franchisor to the temptation of opportunistic exploitation of the franchisee’s investments. The criterion of “reasonable justification” gathers the two parties around a focal point that obligates each party to give a reckoning of account about the reason for withdrawal from the relationship: withdrawal deriving solely from the opportunistic exploitation of the other party’s investments will not be deemed justifiable and will not be approved. There is naturally a necessity to analyze what “reasonable justification” is in termination of the relationship. On this matter we can learn from the US experience that has accumulated incidental to the operation of statutes requiring “good cause”: in a normal situation we will examine whether there was any fault on the part of the other party justifying the rescission, even if the incident did not amount to a “breach” of contract, wherein the following events were recognized, such as non-performance of payments or timely reports; failure to meet the chain’s standards; a decline in the anticipated sales volume or acceptable performance requirements; sale of competing products; transfer of franchise without the manufacturer’s consent; and causing damage or injury to the chain’s reputation.59 There are cases where also without any fault on the part of the franchisee, the manufacturer can terminate the relationship, such as where it has been decided to discontinue a certain production line or exit the market.60 On the other hand, a manufacturer will not be able to justify removal of the franchisee by its desire to open its own store, if proven that the franchisee had made investments and contributed to the building of the reputation in the area.61 In my opinion, it is unnecessary and impossible to exhaustively define in a statute those events that will constitute “reasonable justification”. The advantage in a requirement of reasonable justification is the flexibility it offers, enabling it to be suited to specific circumstances. It is therefore desirable that this is left to jurisprudential development from case to case. The important point lies in understanding that the rule of “reasonable justification” does not grant “immunity against dismissal” or “employee tenure”. This is a dynamic melting pot for a discussion on the relative interests of the parties. The decision will be made against the background of the nature of the franchise, the ranking of the chain’s reputation, the level of the franchisee’s investment in nurturing the investment, the duration of the agreement and the total mutual conduct of the parties. Such conduct is not foreign to us: it is familiar from the field of long-term commercial relational contracts to which we apply the legal principle of good faith, with the purpose of reaching just results.62 Also, a fran59

Barkoff/Fittante/ Gardner Jr./Selden, Fundamentals of Franchising, pp. 196 – 202 . Barkoff/Fittante/Gardner Jr./Selden, Fundamentals of Franchising, pp. 200 – 201. 61 Barkoff/Fittante/Gardner Jr./Selden, Fundamentals of Franchising, p. 201. 62 See, for example, C.A. 9609/01 Mul Hayam (1978) Ltd. v. Segev (published on Nevo Database, 28. 3. 2004); C.A. 9874/05 Tel Aviv Yafo Municipality v. Goren (published on Nevo 60

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chise contract is a relational contract, to which it is desirable to apply a flexible contract law balancing between freedom of contract and the interest of protecting the weak party and preventing injustices deriving from market failures.63 The proposed regulation is also supported by considerations of pure economic efficiency: the franchise structure is efficient when it encourages both parties to optimally invest in a transaction. The reasonable justification requirement is expected to encourage both parties to optimally invest in the relationship. A contracting party who knows that it may not be removed except for “reasonable justification” will be able to invest with greater confidence in the transaction. On the other hand, a legal regime allowing arbitrary removal for no cause exposes the contracting party to uncertainty and perpetual danger that will deter it from making investments. The franchisee is likely to be pushed into minimizing the marketing efforts to a bare minimum and refraining from spending reliance expenses that are likely to be reduced to nothing.64 The requirement of reasonable justification does indeed make it more burdensome for the franchisor at the withdrawal stage, but only to some degree: this is not a grant of absolute immunity preventing the rescission of the franchise. And furthermore, the reasonable justification requirement actually advances the interest of the franchisor to operate the franchise to its satisfaction. If it is able to arbitrarily remove the franchisee, this would indeed make it easier for it at the exit point, but it is likely to affect it in the course of the relationship – by weakening the marketing incentives operating on the franchisee. The reasonable justification requirement is expected to act like a whip of encouragement, stimulating the franchisee to refrain from shirking and to do its best. The parties will obviously be able to contract out of the reasonable justification requirement, since they control the transaction they formulated. It is customary to assume that parties to a franchise develop a reasonable expectation that the relationship will continue; a franchise is not a relationship involving a simple one-time exchange of consideration, but is based on working together in the long-term.65 How-

Database, 12. 8. 2009). Also, in the case of franchise contracts, the right to rescind is subject to the duty of good faith as a general legal principle; see, for example, C.C. (District, Tel Aviv) 1092-08 Nestel v. Yedioth Achronoth Ltd. (published on Nevo Database, 27. 12. 2010). 63 For an analysis of a commercial agency relationship as a relational contract, see for example, Grosskopf, Dividing the Surplus upon Termination: The Case of Relational Contracts, American Business Law Journal 48 (2011), p. 1 et seq. 64 This is the position expressed by Justice Danziger in the appeal in the Second Blum Case, supra, note 1, para. 45 of Justice Danziger’s judgment: “…a franchisee works and invests in the development of a franchise for many years, while the franchisor enjoys the fruits of such investment. Therefore, granting the franchisor a sweeping right of rescission will significantly reduce the franchisee’s incentive to develop it and may even cause it to hold off acquiring the franchise due to a constant fear of its rescission”. 65 Uri Benoliel suggests analyzing the franchise relationship according to the behavioral economics theory, assuming that at the basis of the relationship is the reasonable expectation of the parties of a continuing relationship, Benoliel, The Expectation of Continuity Effect and

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ever, the franchisor is likely to request for itself absolute discretion to terminate the relationship – for example, in cases where it is difficult to quantify and estimate the franchisee’s performances, or because it fears the excessive freedom of the franchise relationship and also where there is an increased fear that disputes will arise between the franchisor and the franchisee. In these cases, the franchisor will be able to set out explicitly in the contract the right to terminate the relationship “by choice”.66 We will search in the contract for explicit language granting the franchisor the power of unconditional release. It can be expected that keeping such a strong contractual right will be costed in the transaction price and find expression in its terms, in view of its economic significance to the franchisee.

VII. Conclusion Justice Danziger’s ruling in the case of Blum v. Anglo-Saxon invites a renewed review of the regulation on terminating a franchise. The question how a franchise for an unlimited period of time will terminate is critical, because of its effect on the transaction structure and on the total value of the franchise institution. Kaplow and Shavell argued that the value of an entitlement is measured not according to the heading or legal classification, but rather according to the way in which we protect it at the stage of sequestration.67 This is also the case with the rights of the parties to a franchise contract: the degree of ease or burden upon terminating a franchise has an impact on the economic value of the franchise. A review of the case law shows that this question generally arises incidental to an attempt on the part of the franchisor to terminate the relationship and remove the franchisee. “Easy” removal prima facie benefits dynamic commercial life, although it is likely to damage the interest of the franchisee and the dimension of fairness in the transaction. On the other hand, making the methods of removal burdensome is likely to increase the transaction costs at the stage of terminating the relationship, and in any event also at the stage of entering into the relationship because the franchisor will want to take extreme care at the time of choosing the franchisee. However, making the removal stage burdensome means protection of the franchisee; this is likely to increase the interest of certainty and therefore also the investment incentives and marketing on the part of the franchisee. Justice Danziger’s approach connects the parties to the language of the franchise contract. A literal reading of the contract respects the freedom of choice of the contracting parties in shaping the terms of the transaction, although its effectiveness is contingent on the existence of an efficient and faultless market. This assumption goes Franchise Termination Laws: A Behavioral Perspective, American Business Law Journal 46 (2009), p. 139 et seq. 66 Spencer, The Regulation of Franchising in the New Global Economy. pp. 110 – 111. 67 In their monumental work, Kaplow/Shavell, Property Rules versus Liability Rules: An Economic Analysis, Harvard Law Review 109 (1996), p. 713 et seq.

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wrong when there are significant power differences between the parties, biasing the wording in favor of one of the contracting parties at the expense of the other. My proposal is to adopt a Franchise Law regulating the termination of a franchise by a binding rule to present “reasonable justification” for terminating the relationship: where a franchisor wishes to terminate an agreement for an unlimited period of time, it will have to indicate a reasonable justification for the act of termination. The reasonable justification rule is optimal because it staves off opportunistic conduct, and yet its restraint is proportional. The parties will be able to contract out of the rule: however, contracting out of a dispositive law requires the parties to act mindfully and forge a common desire to exclude the norm determined in the law. In the absence of explicit contracting out – the “reasonable justification” rule will apply as the default to decide the dispute. Bibliography Argyres, Nicholas/Bercovitz, Janet: The Impacts of Efficiency and Bargaining Power on Contract Structure: Evidence from Franchising, Atlanta Competitive Advantage Conference 2010 Paper. Ayal, Adi/Benoliel, Uri: Good-Cause Statutes Revisited: An Empirical Assessment, Indiana Law Journal Vol. 90, 2015, pp. 1177 – 1206. Barkoff, Rupert M./Fittante, Joseph J./Gardner Jr., Ronald K./Selden, Andrew C. (eds.): Fundamentals of Franchising, 4th edition, Chicago/Washington D.C. 2015. Beales III., J. Howard/Murius, Timothy J.: The foundations of franchise regulation: Issues and evidence, Journal of Corporate Finance Vol. 2, 1995, pp. 157 – 197. Benoliel, Uri: The Expectation of Continuity Effect and Franchise Termination Laws: A Behavioral Perspective, American Business Law Journal Vol. 46, 2009, pp. 139 – 177. Brickley, James A./Dark, Frederick H./Weisbach, Michael S.: The Economic Effects of Franchise Termination Laws, The Journal of Law and Economics Vol. 34, 1991, pp. 101 – 132. Carlton, Dennis W./Perloff, Jeffrey M.: Modern Industrial Organization, Boston 2000. Emerson, Robert W.: Franchise Terminations: “Good Cause” Decoded, Wake Forest Law Review Vol. 51, 2016, pp. 103 – 164. Emerson, Robert W.: Franchise Goodwill: Take a Sad Song and Make it Better, University of Michigan Journal of Law Reform Vol. 46, 2013, pp. 349 – 416. Grosskopf, Ofer: Dividing the Surplus upon Termination: The Case of Relational Contracts, American Business Law Journal Vol. 48, 2011, pp. 1 – 26. Hermalin, Benjamin/Katz, Avery W./Craswell, Richard: the Law and Economics of Contracts, in: Polinsky, A. Mitchell/Shavell, Steven (eds.), Handbook of Law and Economics, NorthHolland 2006. Kaplow, Louis/Shavell, Steven: Property Rules versus Liability Rules: An Economic Analysis, Harvard Law Review Vol. 109, 1996, pp. 713 – 790.

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Klein, Benjamin/Crawford, Robert G./Alchian, Armen A.: Vertical Integration, Appropriable Rents, and the Competitive Contracting Process, Journal of Law and Economics Vol. 21, 1978, pp. 297 – 326. Klein, Benjamin/Saft, Lester F.: The Law and Economics of Franchise Tying Contracts, Journal of Law and Economics Vol. 28, 1985, pp. 349 – 351. Klick, Jonathan/Kobayashi, Bruce/Ribstein, Larry: Federalism, Variation and State Regulation of Franchise Termination, Entrepreneurial Business Law Journal Vol. 3, 2009, pp. 355 – 380. Lisus, Jonathan C./Ship, Adam: Restrictions on Unilateral Termination of Franchise Agreements, Canadian Business Law Journal Vol. 49, 2010, pp. 113 – 129. Mautner, Menachem: “How is Israel’s Contract Law Developing?”, Tel Aviv University Law Review Vol. 34 (Iyunei Mishpat), 2011, p. 527 et seq. Spencer, Elizabeth Crawford: The Regulation of Franchising in the New Global Economy, Cheltenham 2010. Waldman, Don E./Jensen, Elizabeth J.: Industrial Organization: Theory and Practice, Boston 1998. Williamson, Oliver E.: Markets and Hierarchies, Analysis and Antitrust Implications: a Study in the Economics Of Internal Organization, New York 1975. Williamson, Oliver E.: Transaction-Cost Economics: The Governance of Contractual Relations, Journal of Law and Economics Vol. 22, 1979, pp. 233 – 261.

IV. Legal Challenges in Digital Transformation and Technology

Through the Thicket of Law to the Stars of Technology Transfer By Berthold Haustein*

I. Introduction A popular cliché about innovation in Germany is as follows: German engineers develop existing technologies to the extreme.1 They improve them until they are more efficient, more robust and more accurate than competing products. The success of the German economy is based on such “incremental” innovations. By contrast, disruptions, i. e. innovations that fundamentally turn existing markets upside down, make entire products or product groups disappear or create new markets, do not (or no longer) come from Germany. Germany has lost the ability to invent engines, it can only make horse-drawn carriages faster and more comfortable. The recent years’ exception that proves the rule is also obvious: the significant involvement of the Mainz-based company BioNTech SE in the development and market launch of a COVID vaccine based on mRNA technology. This example is so important because it illustrates the impressive social and health progress that disruptive innovations can trigger, not to mention the no less impressive riches that can be made in the right place and at the right time.2 So Germany is very much capable of producing disruptions. However, the cliché mentioned above is not entirely wrong. The success of the German COVID vaccine was so remarkable because it was perceived of as an exception. It is definitely worthwhile to think about what organisational, political or legal paths could be taken to be able to create more disruptive inventions made in Germany in the future. This article

* Dr. Berthold Haustein is a lawyer at Mazars Rechtsanwaltsgesellschaft mbH and advises mainly on corporate law in the public sector. Until 2022, he was the in-house lawyer at the Federal Agency for Disruptive Innovation (SPRIND GmbH). 1 Lobo, Deutschland: das gelobte Land des Dinglichen, spiegel.de (https://www.spiegel.de/ netzwelt/web/diesel-gipfel-deutschland-das-gelobte-land-des-dinglichen-kolumne-a-1161001. html) (accessed at 7. 2. 2023). 2 Wealth that also benefits the public purse: br.de, Steuerspritze von Biontech: RheinlandPfalz erstmals Geberland (https://www.br.de/nachrichten/deutschland-welt/steuer-spritze-vonbiontech-rheinland-pfalz-erstmals-geberland,TApCLA7) (accessed at 6. 2. 2023).

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will look at one of several factors in this context: The transfer of technological inventions3 from universities4 to the market and its legal basis. Why, of all things, technology transfer from universities? Of course, not all disruptions come from universities or the public sector (the digital camera, for example, did not), but then again, some do. The essential groundwork for mRNA technology was laid at the University of Mainz,5 and BioNTech received funding from the Federal Ministry of Research6 to speed up the development of the vaccine. The often celebrated mp3 format comes from the Fraunhofer system7 and even the internet is a product of American public (military) research.8 The public sector plays an important role in (disruptive) innovation. Furthermore, public research and development and their funding are necessary drivers of innovation. Viewing research and development as a purely private task runs the risk of losing two essential drivers of innovation. Firstly, there is great innovative power in not having to work towards a certain result. At public research institutions there is (hopefully) more room to be distracted by supposed peripheral issues and side results than in the development department of a company. But chance can lead to the most wonderful discoveries.9 Secondly: In the public sphere, a specific research approach can (more often and for longer) avoid the question of its very raison d’être. The general epistemic interest of public (basic) research can, if necessary, provide sufficient justification for almost any experiment. Above all, however, public goods can be included in the selection of research approaches. For example, in applied drug development it may make a difference, whether it is necessary to look only at the return on sales over the term of the respective IP rights when weighing up the risk before funding clinical trials for drug testing, or whether an “overall social” return may also be fac3 In this contribution, the term “invention” is used non-technically (and not in the sense of the Patent Act) for any economically exploitable technical novelty in the broadest sense that is capable of being protected by law and results from research or development. 4 For the purpose of this contribution the term “universities” refers to all institutions of higher education, including non-university research institutions such as the Helmholtz and Fraunhofer Societies, which are of particular importance for publicly funded innovation in Germany. 5 forschung- und-lehre.de, Universitätsmedizin Main ehrt Biontech-Gründer (https://www. forschung-und-lehre.de/karriere/universitaetsmedizin-mainz-ehrt-biontech-gruender-4408) (accessed at 06. 02. 2023). 6 biontech.de, BioNTech erhält BMBF-Förderung von bis zu 275 Millionen Euro für COVID-19-Impfstoff BNT162, 15. 9. 2020 (https://investors.biontech.de/de/node/8531/pdf) (accessed at 6. 2. 2023). 7 heise.de, Fraunhofer IIS: Lizenzprogramm für MP3 endet (https://www.heise.de/newstik ker/meldung/Fraunhofer-IIS-Lizenzprogramm-fuer-MP3-endet-3714367.html) (accessed at 6. 2. 2023). 8 zeit.de, Meilensteine in der Geschichte des Internets (https://www.zeit.de/news/2019-10/ 29/meilensteine-in-der-geschichte-des-internets) (accessed at 6. 2. 2023). 9 Cf. Alexander Fleming’s description of the (re)discovery of a species of fungus that led to the commercialisation of penicillin: Fleming, British Journal of Experimental Pathology 10 (1929), p. 226 et seq.

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tored in. The latter includes, for example, benefits that arise from the containment or cure of a serious disease for social welfare or the social welfare funds. The state can think in a utilitarian way when selecting research projects. For lawyers in the public research environment, the question of the legitimacy of public research results to the market and the transfer of society does not arise anyway, because § 2 (7) of the Higher Education Framework Act (HRG) stipulates: “Universities10 shall promote the transfer of knowledge and technology”.11 The transfer of research results at universities to the market and society is thus desired by the federal legislature and assigned to all universities as a public task. This essay aims to make a small contribution on how that can be achieved (better). In Germany, the transfer of the results of university research to the market faces a variety of challenges.12 There are disputes about the financial and personnel resources of transfer offices, their “market economy” viability and agility, the need for returns from transfer activities, excessive expectations of entrepreneurs, accompanying private investors from the venture capital sector, and about starting-up, failure, selfemployment and corporate culture in general. In this context, transfer offices are not infrequently (but rarely deservedly) used as a pars pro toto for a whole series of “things in need of improvement” in public-private cooperation. This is possibly also due to the fact that in the legal analysis of technology transfer by universities, a comparatively fundamental question arises: Under what conditions may assets created with public funds end up in private hands that intend to exploit them exclusively for their individual benefit and not for a collective one? These conditions result essentially from structural decisions under constitutional law and from provisions for the economic activities of public higher education institutions, in addition to budgetary rules and EU state aid law. How in detail a transfer is made, whether by licensing or patent sale, for example, and which cash flows or forms of participation are agreed upon, cannot be decided without reference to questions of tax law, company law and intellectual property law. However, this area, which is important for the practical structuring of technology transfers, is not the focus of this contribution.13

10

Universities are covered by the term higher education institution, see § 1 HRG. Background at Bagdassarov, Wissens- und Technologietransfer an Universitäten, Interne und externe Gestaltungsansätze am Beispiel der Technologietransfer-GmbH, p. 73 et seq. 12 The following description of the technology transfer discussion is based on the experiences and discussions that the author had the privilege of having as a member of the “IP for shares” working group of the Federal Agency for Disruptive Innovation (SPRIND GmbH). 13 Overview and basic considerations in Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EU-Beihilferechts, p. 60 et seq. 11

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II. The Legal Framework for Technology Transfer in Germany In practice, the interplay of budgetary law and state aid law complicates the transfer of technology to a significant extent. If the actual value of a patent, for example, is paid for the transfer to a company, then this transaction could be assessed under budgetary law as fiscal action by the public sector, atypically through sale and not through procurement. From the point of view of state aid law, there is no aid involved, because anyone who pays a market price does not receive an advantage – there is no “added value”. If, on the other hand, a lower price is demanded, this is a form of subsidy or grant under budgetary law (benefit administration), the permissibility of which is subject to different rules than fiscal action.14 In the parallel world of state aid law, this is in fact a case of a state aid, because the purchaser of the intangible asset receives an advantage in the form of the difference between the true value and the actual amount to be paid. This aid can be legal or illegal, which in turn is governed by special rules under state aid law. A higher education transfer office must make a fundamental directional decision for itself when it approaches a transfer project: to subsidize or not to subsidize. The natural impulse will be to support “own” spin-off projects and cross-finance them with transfer projects to large industrial companies. This, in turn, is legally complex or even prohibited. Above all, however, the variable “market value” in the technology transfer equation is initially unknown and must either be measured in the field or calculated with high uncertainties based on shaky assumptions. 1. Higher Education Law and Constitutional Law The Bavarian implementation of the already above-mentioned § 2 (7) HRG, Art. 2 (4) p. 1 of the Bavarian Higher Education Act (BayHSchG), for example, stipulates: “The higher education institutions shall cooperate with business and professional practice and shall promote the transfer of knowledge and technology”.15 Regardless of how far the meaning of the term “technology transfer” extends, this in any case includes the transfer of intellectual property rights to private companies (with and without the universities as shareholders) for the purpose of commercially exploiting those intellectual property rights (with and without intermediary further development).16 Whether supporting companies whose object is the further development or exploitation of such property rights is also included, however, does not follow direct-

14 If the transfer is accompanied by the acquisition of an equity share in the recipient’s company, which is often the case with start-ups, there are additional questions arising under company law or tax law, such as hidden contributions or disproportionate shareholdings. 15 Cf. also § 5 (2) no 9 SächsHSFG. 16 Sendlak, Unternehmerische Tätigkeit der Hochschulen, Erörtert am Beispiel des Hochschulfreiheitsgesetzes NRW, p. 46.

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ly from the wording.17 But the question whether only the transfer infrastructure of a university is covered by the funding mandate or whether individual transfers can also be funded is important. Does the promotion of technology transfer only mean the financing of the university’s own technology transfer office along with information services, consulting and fees for the administration of its own intellectual property rights? Or is the unusually favourable sale of IP rights, for example to members of the respective university body, also intended? These questions need to be clarified in order to achieve a practicable and systematic arrangement of technology transfer. As this contribution aims to show, a number of follow-up questions are linked to these questions spanning various areas of law. It is not disputed that universities should not only bring results to the market, but are also constitutionally allowed to do so.18 However, in view of the principle of equal treatment under Article 3(1) GG and, if applicable, also in view of Article 12 GG, the question arises as to whom in particular universities may grant exclusive access to research results. In practice, it is by no means the case that every patent owned by a university is necessarily offered to the entire market. Often – especially in the case of start-ups – negotiations are only held with the scientists willing to spin off the company.19 At first glance, it is obvious to base this circumstance on a distinction between inventions that by their nature address an existing market20 and inventions that by their nature can or should be further developed by the scientists already involved in development at the university due to their prior experience and knowledge.21 However, this distinction has a number of legal disadvantages: it is vague. It assumes an intrinsic relationship between invention and inventor, which contra17 Sendlak, Unternehmerische Tätigkeit der Hochschulen, Erörtert am Beispiel des Hochschulfreiheitsgesetzes NRW, p. 46 et seq. assumes that the university will have to sell any investments when they reach market maturity, as production is no longer covered by the task of promoting technology transfer. However, in my opinion, holding investments is more like managing one’s own assets anyway. The right to hold stakes in companies, for example, is laid down in Art. 73 (3) BayHSchG. 18 For a detailed treatment of the fundamental rights situation: Gräf, Die Wirtschaftliche Betätigung von Universitäten, Legitimation und Grenzen, p. 65 et seq. 19 Graf’s assumption is otherwise Gräf , Die Wirtschaftliche Betätigung von Universitäten, Legitimation und Grenzen, p. 101: “Denn für die Annahme von Wettbewerb reicht es aus, dass die Nachfrager untereinander beispielsweise um die Erteilung einer Lizenz konkurrieren.” [“For it is sufficient for the presumption of competition that purchasers compete among themselves, for example, for the issuance of a license.”] A constitutionally critical “Verdrängungswettbewerb” [“predatory competition”] would be “äußerst unwahrscheinlich” [“extremely unlikely”]; Similar in approach: Schlette, Die Verwaltung als Vertragspartner, p. 75 et seq. 20 For example, improving the technical design of a valve that has been known for a long time and is offered by several firms. 21 Thus Gräf, Die Wirtschaftliche Betätigung von Universitäten, Legitimation und Grenzen, p. 101; Cf. Heide, Forschungsfreiheit im Innovationswettbewerb, Zum Schutz der Forschungsfreiheit und der Teilhabe an staatlich finanzierten Forschungsleistungen im Rahmen des Technologietransfers staatlich geförderter Forschungseinrichtungen, p. 276, Only in this case does the author think an auction makes sense.

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dicts the abolition of the university lecturer privilege in the ArbnErfG, especially since § 42 ArbnErfG conclusively regulates the renumeration of inventors at universities in the exploitation of an invention by the owner. The inventor is not entitled to further advantages such as a primary acquisition right. The distinction forces a body other than the market (namely the transfer office) to decide whether the market feels addressed by the possibility of acquiring an invention. Of course, letting the market make this decision is more efficient. There is another aspect to this. The mere sale or out-licensing of a state property right to a private party does not appear to be “promoting research” or promoting “technology transfer”. Rather, the sale of otherwise unused assets has the character of an auxiliary fiscal transaction, only not for procurement, but for sale.22 That is because the transfer of a property right does not in itself imply that further research will be carried out on the protected invention and that it will be made ready for marketing. Such an agreement can and should be made, but as an encumbrance on the recipient of the property right it necessarily has a price-setting effect. In any case, the public sector is subject to the requirements of public law, in particular fundamental rights23 in the case of sale transactions in the context of technology transfers. For procurement transactions, this obligation has acquired a special expression in public procurement law; for sale transactions, it can be derived, among other things, from principles of constitutional and administrative law24. In particular, these principles state that when a public good is sold, everyone must be given the same opportunity to acquire it, unless there are objective reasons for unequal treatment.25 This applies all the more if the IP rights are transferred on particularly favourable terms, so that the delta between market value and remuneration can be seen as a form of funding. Funding of technology transfer (and not just its performance) can also be seen in start-up advice or agios for example. If such a genuine subsidy exists, the doors are wide open to an action for protection of competitors under Articles 3 22 In the sense of “asset privatisation”, definition in Kämmerer, Privatisierung, p. 39. For a distinction, cf.: Eggers/Malmendier, NJW 2003, p. 780 (780 et seq.). 23 Eggers/Malmendier, NJW 2003, p. 781. 24 Eggers/Malmendier, NJW 2003, p. 780; Cf. also: Becker, Verwaltungsprivatrecht und Verwaltungsgesellschaftsrecht am Beispiel des Rechtsschutzes bei Entscheidungen der Treuhandanstalt, p. 150 and p. 154 et seq. for cases involving the selection of corporate acquirers. 25 Heide, Forschungsfreiheit im Innovationswettbewerb, Zum Schutz der Forschungsfreiheit und der Teilhabe an staatlich finanzierten Forschungsleistungen im Rahmen des Technologietransfers staatlich geförderter Forschungseinrichtungen, p. 210 et seq. (for contract research), p. 243 et seq. (for the utilisation of results) and p. 293; also in need of justification is “selektives Informationsverhalten” [“selective (provision of) information”], Wollenschläger, in: Huber/Voßkuhle (eds.), Grundgesetzkommentar, Art. 3 no 254 also Heide, Forschungsfreiheit im Innovationswettbewerb, Zum Schutz der Forschungsfreiheit und der Teilhabe an staatlich finanzierten Forschungsleistungen im Rahmen des Technologietransfers staatlich geförderter Forschungseinrichtungen, p. 242.

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and 12 GG,26 and special rules must also be observed under state aid law. “If the purchase price set by the public authorities for an asset is below the market value, this may constitute an indirect advantage and thus aid”.27 No subsidy, but an internal connection may lie in contractually agreed investment or further development obligations associated with the actual transfer. But even then it cannot be said a priori that an uninvolved third party would not be willing to take over the development on even more favourable terms. And even then, for example in the case of the sale of loss-making state-owned enterprises, it is recognised that a bidding procedure should be conducted.28 The participation of the inventor on the acquiring side in the transfer of technology combined with further development obligations secured by contractual obligations is certainly a connecting factor for an objective reason justifying preferential treatment under Article 3 GG.29 However, it is by no means a strong reason: the image of the exceptional genius who alone is capable of advancing a scientific idea is outdated. Moreover, so-called “vesting” clauses, which ensure the inventor’s continued employment with the objects of the enterprise in the long term, are rather uncommon in technology transfer licensing agreements. Most importantly, it is a reason for preferential treatment in bidding procedures, not their complete absence. It can therefore be stated that an open (bidding) procedure is practically always advisable,30 if only to avoid unequal treatment prohibited by fundamental rights. Two basic concepts make it possible to ensure the requirements of equal opportunities, openness and transparency. Either the university publishes a fully developed offer for the sale of property rights, including all conditions regarding reversion, insolvency protection, price adjustments, etc., and interested parties submit a priced offer. Alternatively, the university announces its intention to make such a transfer and then negotiates fairly with a reduced group of interested parties. 26 Concerning the protection of competitors in the case of research subsidies: Duisberg, Forschungssubventionen an Großunternehmen, p. 53 et seq.; Wollenschläger, in: Huber/Voßkuhle (eds.), Grungesetz-Kommentar, Art. 3 no 255 et seq. 27 Eggers/Malmendier, NJW 2003, p. 782. See also more detail below on the law on state aid. 28 Eggers/Malmendier, NJW 2003, p. 784, in practice, it is often a question of how low the negative purchase price is, i. e. how much the state has to pay for the sale. 29 Mit Wollenschläger, in: Huber/Voßkuhle (eds.), Grungesetz-Kommentar, Art. 3 no. 254 a.E.: “gestattet der Gleichheitssatz doch marktkonforme Differenzierungen, etwa hinsichtlich eines Vertragsschlusses nach Eignungs- oder Qualitätskriterien, sowie hinreichen gerechtfertigte marktatypische Differenzierungen, wie eine sozialstaatlich motivierte Preisgestaltung” [“the principle of equality does permit market-conforming differentiations, for example with regard to the conclusion of a contract according to suitability or quality criteria, as well as sufficiently justified market-atypical diffentiations, such as pricing motivated by the welfare state”], a moderate preference for start-ups could also be justified; critical treatment, Heide, Forschungsfreiheit im Innovationswettbewerb, Zum Schutz der Forschungsfreiheit und der Teilhabe an staatlich finanzierten Forschungsleistungen im Rahmen des Technologietransfers staatlich geförderter Forschungseinrichtungen, p. 250. 30 Eggers/Malmendier, NJW 2003, p. 782. Cf. EC 2016/C 262/01, 4.2.3.1.

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After all, both of the above-mentioned procedures not only comply with the requirements of fundamental rights, but, if implemented appropriately, also clear up a number of consequential problems in terms of budgetary and state aid law, which are highlighted below. They constitute, however, a legal solution to legal challenges. This contribution by no means implies that this solution is practical in advancing successful technology transfer. 2. Budgetary Law The exact budgetary requirements for technology transfer depend on the budgetary regulations for the respective university, the involvement of a legally independent utilisation agency and, of course, the structure of the “transfer deal”. In any case, however, the university must observe budgetary regulations in the context of technology transfer.31 The question of the concrete conditions under which the university may participate in companies with equity capital will not be considered in detail here,32 also because in the experience of the author it does not yet have any outstanding practical significance. It is important to note, however, that budgetary law may require that the realisation of the property right assets vis-à-vis a third party be carried out profitably, i. e. in such a way that fully adequate consideration is obtained within the meaning of §§ 63 BHO/LHO.33 This would be different (among other things) if it followed from the respective budget or “from law that assets may be disposed of for less than their value […]”.34 However, it must be doubted whether the general wording on the public tasks of higher education institutions in “promoting” technology transfer is sufficient to allow for a deviation from the general budgetary provisions.35 It has already been pointed out above that this wording does not clearly indicate a mandate to promote specific technology transfer projects. If there is an obligation to sell at full value, there are two conceivable ways to fulfil that obligation. Of course, the determination of “full value” (in plain language the 31 Lux, Rechtsfragen der Kooperation zwischen Hochschulen und Wirtschaft, Ein Rechtsvergleich Deutschland – USA, p. 202. 32 Cf. Lux-Wesener, in: Hartmer/Detmer (eds.), Hochschulrecht, Ein Handbuch für die Praxis, no 18 et seq. 33 This rule applies to Bavarian higher education institutions pursuant to Art. 73 (1) p. 2 BayHSG in conjunction with Art. 105 (1) No. 2 BayHO. Art. 105 Para. 1 No. 2 BayHO. Due to para. 4, it is to be applied accordingly to licensing. 34 Rohrer, § 63 BHO, no 57, in: Scheller (ed.), Kommentar zum Haushaltsrecht, (Definition in no 17): The regulation is to be understood broadly. However, there are still possible exceptions under finance ministerial rules. 35 Of other opinion – because the university pursues “its own goals” – is Lux-Wesener, in: Hartmer/Detmer (eds.), Hochschulrecht, Ein Handbuch für die Praxis, no 51 and Lux, Rechtsfragen der Kooperation zwischen Hochschulen und Wirtschaft, Ein Rechtsvergleich Deutschland – USA, p. 206.

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market value)36 is possible by appealing to the market. After all, what the market is willing to pay for an asset is naturally most easily determined by asking the market. Budgetary regulations do not come to a different conclusion here than the constitutional ones. In addition, it is also possible (under budgetary law, i. e. only if the selective approach to a market participant is reasonably justified) to obtain an expert opinion on the value of the property.37 However, appraisals can only provide an indication of market value; they are not legally binding.38 They therefore do not absolve the transferring university completely – this applies to budgetary law and also to state aid law (see below). There is a further problem: the expert valuation of real estate in innercity locations may regularly lead to realistic results, but in the case of non-utilised property rights from university research, there are elements of applied crystal ball reading that come with it. 3. Excursus: Expert Valuation of Property Rights/IP Rights The recognised commercial valuation regimes for property rights are derived from DIN 77100 and IDW S 5. Although these standards, because they are generally recognised, have a high probative value, are not strictly speaking binding by virtue of their legal nature. It is not possible to go into the details of the expert valuation of property rights here, especially as this is primarily a commercial and not a legal issue.39 However, its imponderables should at least be briefly outlined. Ultimately, there are two options available to the public sector to ensure the existence of consideration corresponding to the market value. One is to have an (expert) valuation of the value of the property right either on the basis of income obtained from that property right or on the basis of investment costs.40 In the case of university technology transfer, however, both approaches reach their limits. IP rights awaiting transfer are usually not yet exploited, or at least not independently, so that there are no earnings from which a value can be derived. On the one hand, a calculation based on 36

Rohrer (supra note 34), § 63 BHO, no 47. Eggers/Malmendier, NJW 2003, p. 782. 38 Eggers/Malmendier, NJW 2003, p. 782. 39 Cf. details in Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EU-Beihilferechts, p. 110 et seq. and in Heide, Forschungsfreiheit im Innovationswettbewerb, Zum Schutz der Forschungsfreiheit und der Teilhabe an staatlich finanzierten Forschungsleistungen im Rahmen des Technologietransfers staatlich geförderter Forschungseinrichtungen, p. 279 et seq. 40 The question then arises as to whether a typical market participant would “sell” at such a fixed price at all or whether licensing agreements with turnover-dependent remuneration components are so prominent in private exploitation activities, that a sale cannot be regarded as customary in the market at all. From the “net value” of the IP right, occurring payments would therefore have to be derived in a further step for the duration of the IP right. 37

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costs leads into the inhospitable realms of university full-cost accounting. In addition, particularly valuable IP rights are inevitably underrepresented/priced and particularly worthless ones (which do not even represent the work that went into them) are overrepresented/priced. There is also the possibility of researching (also on an expert basis) comparative deals or customary licence rates on the basis of so-called “deal databases” and thus making comparable transactions the basis of the technology transfer process. This approach involves additional fuzziness because in the case of more complex licence agreements almost all ancillary provisions and security mechanisms, restrictions on use, reversion or buy-back options, can be value-defining for the licence rate or for individual “milestone payments”. Moreover, it is of course very difficult to compare particularly disruptive inventions, for which the criterion of novelty is inherent, with existing inventions. The full value must also include the costs of non-exploitation as expenses saved through a transfer deal. In view of the not particularly high average income (some sources indicate amounts of only E15,000 euros)41 and the quite relevant filing and maintenance costs, especially in the case of international patents, in individual cases any exploitation may be more economical than none.42 At the lower extreme, it is theoretically even conceivable that the acquirer – in the sense of a parallel to the construct of the investment obligation in privatisations – is to be paid a negative purchase price so that he will take care of the IP rights in the future. The expert valuation of non-monetised property rights often leads to comparatively arbitrary values. However, because both budgetary law and state aid law only attach legal consequences to the choice of the correct value and not to the choice of the correct method, there is also the danger that universities “for reasons of legal certainty tend to only accept excessive exploitation fees or partly decide against concluding transfer agreements in order to avoid the threatening legal consequences of a violation […]”.43 The bottom line is that expert evaluation of university research results is not a good idea. The more so as the costs of the respective expert reports make the transfer even more expensive. Therefore, they should be avoided wherever possible. Technology transfer needs a legally secure and evaluation-free solution.

41 Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, p. 65. 42 Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, p. 51. 43 Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, p. 98.

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4. Law on State Aid Before concluding a technology transfer contract, an examination under European law must also be carried out, because “public universities have to take into account the increasingly ‘visible’ EU law on state aid when carrying out [their] tasks”.44 This poses further imponderables, which are a challenge especially given the intrinsic need of public bodies for legal certainty.45 European state aid law operates using the “prohibition subject to authorization” framework found in Article 107 (1) TFEU. Aid, in simplified terms, “transactions” without “market-oriented remuneration”,46 are prohibited, unless they are exceptionally permitted by European law. Such transactions can therefore also be sales47 or other disposals of IP rights at unreasonably low prices. It can be said that if the transfer agency is at the point where it is legally and otherwise willing to undertake a transfer of IP rights, this may be prohibited under state aid law because it threatens to distort the European internal market.48 Because European state aid law is shaped by similar basic assumptions as the constitutional and budgetary principles described above, surprisingly similar questions arise when it comes to the details. The most important question is once again: Is the transfer intended to promote the receiving company or is it intended to transfer the IP rights at a market rate? In the first case, there is aid, for which an authorisation is necessary. Both paths are possible under state aid law and can be taken for technology transfer. a) No Aid – Market Remuneration The “main problem” of technology transfer is therefore also to determine the “right” (optimally marketable) price and to push it through in negotiations with the acquirer.49 In practice, advance enquiries to the European Commission with 44 Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, p. 20, on subsidies under Article 107 (1) TFEU from p. 79. 45 In the non-exempted area (see below), there is generally less legal certainty, Lübbig/ Martín-Ehlers, Beihilfenrecht der EU, no 734. 46 Bartosch, EU-Beihilfenrecht, Art. 107 A AEUV, no 1. 47 Bartosch, EU-Beihilfenrecht, Art. 107 B AEUV, no 13. 48 Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, p. 21. 49 Incidentally, this also applies to so-called “pari-passu” investments, in which a private investor participates in a spin-off alongside the university. If such inventions are made on an “equal footing”, the Commission does not consider this to be aid (the private investment makes it clear that the conditions are at arm’s length). If property rights are also to be contributed within the framework of such a construct, a valuation is inevitable in order to be able to quantify the value of the contribution in relation to the cash investment of the private investor.

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the aim of obtaining legal certainty about the marketability of a price or licence rate are rare. In addition, there is of course no cross-jurisdictional definition of marketability. However, in terms of state aid law, the focus is also on the question of whether a private actor would sell or license on the same terms. Political considerations – such as the desire to promote university spin-offs – must be left out of the equation.50 The “state aid” market price can of course also be established by appealing to the market, for example – as above – by means of an auction or expression of interest platform.51 They offer the chance of negotiating with several interested parties,52 and indirectly also the possibility of including further price-setting factors in the economic evaluation: “According to the ECJ, the special ability to expertly further develop and market an invention can be presumed, for example, for those undertakings whose owners or employees are also the inventors of the technology that is the subject matter of the contract”.53 Furthermore, suppliers who are in danger of wanting to acquire the technology only as a “blocking patent” can be barred.54 The European Commission’s Research, Development and Innovation Framework (RDI Framework)55 contains further cases in which the European Commission does not consider a transfer of property rights as aid. Relevant there are, in particular, legal transactions that were negotiated according to the so-called arm’s-length principle 50 Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, p. 104. 51 On the individual questions of design: Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EU-Beihilferechts, ab. p. 186 as well as Ziff. 29 lit. a) FEIRahmen. But outside the RDI framework, the EU Commission (of course!) accepts the establishment of the market price using a market approach, Eggers/Malmendier, NJW 2003, p. 782: “Wird […] ein öffentlicher Vermögensgegenstand im Wege eines offenen, transparenten und bedingungsfreien Bieterverfahrens an den Meistbietenden veräußert, geht die Kommission in ständiger Praxis davon aus, dass in der Transaktion keine Elemente einer Beihilfe enthalten sind.” [“Where […] a public asset is sold to the highest bidder through an open, transparent and unconditional bidding process, the Commission has a consistent practice of presuming that no elements of state aid are included in the transaction.”]. Cf. EC 2016/C 262/01, 4.2.3.1. 52 Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, p. 135. 53 Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, p. 136 with reference to EuG, Urt. v. 12. 6. 2014, Rs. T-488/11, no 112 et seq. 54 Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, p. 136; Cf. also Heide, Forschungsfreiheit im Innovationswettbewerb, Zum Schutz der Forschungsfreiheit und der Teilhabe an staatlich finanzierten Forschungsleistungen im Rahmen des Technologietransfers staatlich geförderter Forschungseinrichtungen, p. 276. 55 “Unionsrahmen für staatliche Beihilfen zur Förderung von Forschung, Entwicklung und Innovation”, 2014/C 198/01.

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within the meaning of point 15 f) of the RDI Framework. Haase56 assumes that technology transfer can also be based on paragraphs 28 lit. d) and 29 lit. c) of the RDI framework, so that if arm’s-length negotiation exists, there is no need for approaching the market. However, under paragraphs 27 and 28, and taking into account paragraph 15 lit. h), this only applies in cases of “effective cooperation” between enterprises and the public sector, loosely speaking: for genuine cooperative projects. Pure technology transfer without any actual promotion or intentions to cooperate does not fulfil this criterion.57 The Commission’s picture seems to be the joint development and subsequent transfer of IP rights rather than the transfer in itself. b) Aid – Eligibility Criteria for Technology Transfer Aid If, on the other hand, technology transfer in the sense of start-up support is to contain aid (and is permitted under budgetary law, see above), this must be confirmed in European law. Because notification procedures are often shied away from for individual technology transfer projects and are probably beyond its scope, “block exempted aid” by the Commission is relevant (read: blocks of aid that are exempt from the notification requirement). Depending on the structure of the “transfer deal” and the private partner involved, different provisions can be applicable to the transfer of IP rights. If the technology underlying the IP right still has to be further developed, a research and development grant can be considered. The pure sale, on the other hand, cannot be described in any other way than as the privatisation of a public asset.58 University spin-offs in which the university wants to participate financially and to which the university may even formally contribute an asset as a contribution in kind can be seen as an investment. Risk capital subsidies are then also conceivable.

56 Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, p. 174, but also Wündisch, in: Birnstiel/Bungenberg/Heinrich (eds.), Europäisches Beihilfenrecht, ch. 1, no 1733. That, on the other hand, any participation in a spin-off would be unobjectionable under state aid law, “soweit die hierdurch generierten Rückflüsse wieder in die Haupttätigkeit der Hochschule investiert werden” [“to the extent that the returns generated thereby are reinvested in the principle activities of the university”] (ibid. no 1736) is certainly not correct in this sweeping manner. 57 Similarly Gräf, Die Wirtschaftliche Betätigung von Universitäten, Legitimation und Grenzen, p. 48 et seq. and von Wendland, BRZ 2015, p. 203 (210): “Der industrielle Kooperationspartner zahlt ein marktübliches Entgelt für die Übertragung oder Zugänglichmachung der von Forschungseinrichtungen/Forschungsinfrastrukturen erarbeiteten geistigen Eigentumsrechte.” [“The cooperating industrial partner pays an arm’s length fee for transferring or making accessible the intellectual property rights developed by research insitutions/research infrastructures.”]. 58 Haase, Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, p. 103.

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As a result, research grants under Art. 25 GBER are possible in exceptional situations. However, Art. 25(3)(d) also indicates that this norm was not created for technology transfer itself, but rather for the acquisition of (further) property rights from uninvolved third parties. What is really relevant, on the other hand, is aid for start-ups in cases of spin-offs from the science sector. Such companies can usually have subsidies of E800,000 (when applying para. 5) in the temporal and factual context of their founding (para. 1), which can also be in the form of a contribution or the transfer of property rights at a reduced rate. A non-commercialised IP right worth more than E800,000 is the exception rather than the rule anyway. So can university technology transfer be brought under control in terms of state aid law by means of Art. 22 GBER? Unfortunately, not. Art. 22 (1) read in conjunction with Art. 5 (1) GBER. Art. 5 (1) GBER requires that the aid be precisely quantified in order to be transparent. That means: There is no Art. 22 GBER without an assessment of the property rights.59 5. Interim Result The legal areas addressed all come to similar conclusions: if an expert evaluation of IP rights is to be avoided, a market approach is the most legally secure way. This result is hardly surprising: the questions don’t differ in their references to fundamental rights or fundamental freedoms, because fundamental aspects of the principle of equal treatment in GG are reflected in the treaties of the European Union. The fact that the state may not favour individual private actors over others without grounds in order not to jeopardise the undistorted nature of competition can be understood as an element of the general principle of equal treatment, as well as the European prohibition of discrimination.60

III. Conclusion At the centre of the legal treatment of technology transfer is the question of whether the public sector may transfer its intangible assets to private parties so that they may exploit them economically for their individual benefit and – if so – what compensation it must demand for that. The answer to the second question can be simplified to either that at least the actual value of the asset must be paid or that a lower payment can be considered. This decision must be made by the transferring university in each individual case. If the technology transfer is to take place on the basis of the actual value, a market approach in the sense of an auction or an expression of interest in negotiations is legally favorable, however impractical it may be. With 59 And if the evaluation comes to a high result, the transfer agency is required by budgetary law to ask itself whether a more lucrative utilisation might not be considered elsewhere. 60 Bührle, Gründe und Grenzen des “EG-Beihilfenverbots”, p. 137.

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such a procedure, however, serious concerns in constitutional, budgetary and state aid law are resolved, as it were. Not only is the transferring university on the safe side of legally compliant administration, but the receiving company does not have to worry about fines or clawbacks under state aid law. At the same time, the university retains the option of securing the future of the technology to be transferred through ancillary provisions. The structuring of such auction or expression of interest procedures and the technical offering of a corresponding platform is of course best done by a superordinate body in which the higher education institutions participate for technology transfer purposes. If, on the other hand, the university plans to fund scientists who are willing to spin off, the ice is rather thin in terms of public law. More detailed provisions under state law that mitigate a possible violation of Article 3 GG by establishing rules for the selection of transfer projects worthy of funding and relieving the transfer offices of budgetary concerns would certainly be desirable. However, from the point of view of state aid law, there is hardly any way around an expert evaluation in such situations. Bibliography Bagdassarov, Annett: Wissens- und Technologietransfer an Universitäten, Interne und externe Gestaltungsansätze am Beispiel der Technologietransfer-GmbH, Wiesbaden 2012. Bartosch, Andreas: EU-Beihilfenrecht, 3rd edition, Munich 2020. Becker, Joachim: Verwaltungsprivatrecht und Verwaltungsgesellschaftsrecht am Beispiel des Rechtsschutzes bei Entscheidungen der Treuhandanstalt, Baden-Baden 1993. “BioNTech erhält BMBF-Förderung von bis zu 275 Millionen Euro für COVID-19-Impfstoff BNT162”, 15. 09. 2020 (https://investors.biontech.de/de/node/8531/pdf) (accessed at 06. 02. 2023). Birnstiel, Alexander/Bungenberg, Marc/Heinrich, Helge (eds.), Europäisches Beihilfenrecht, 1st edition, Baden-Baden 2013. Bührle, Folko: Gründe und Grenzen des “EG-Beihilfenverbots”, Tübingen 2006. Duisberg, Carl-Heinz: Forschungssubventionen an Großunternehmen, Bielefeld 1983. Eggers, Carsten/Malmendier, Bertrand: Strukturierte Bieterverfahren der öffentlichen Hand, Rechtliche Grundlagen, Vorgaben an Verfahren und Zuschlag, Rechtsschutz, NJW 2003, pp. 780 – 787. Fleming, Alexander: On the antibacterial action of cultures of Penicillium, with special reference to their use in the isolation of B. Influenzae, British Journal of Experimental Pathology Vol. 10, 1929, p. 226 – 236. “Fraunhofer IIS: Lizenzprogramm für MP3 endet” (https://www.heise.de/newsticker/meldung/ Fraunhofer-IIS-Lizenzprogramm-fuer-MP3-endet-3714367.html) (accessed at 06. 02. 2023). Gräf, Ilse-Dore: Die Wirtschaftliche Betätigung von Universitäten, Legitimation und Grenzen, Berlin 2013.

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Haase, Stefan: Der Technologietransfer der deutschen Hochschulen im Binnenmarkt der Europäischen Union, Eine Untersuchung der Verwertung von Schutzrechten im Lichte des EUBeihilferechts, Baden-Baden 2019. Heide, Nils: Forschungsfreiheit im Innovationswettbewerb, Zum Schutz der Forschungsfreiheit und der Teilhabe an staatlich finanzierten Forschungsleistungen im Rahmen des Technologietransfers staatlich geförderter Forschungseinrichtungen, Berlin 2008. Huber, Peter Michael/Voßkuhle, Andreas (eds.): Grundgesetz-Kommentar, Vol. 1, Munich 2018. Kämmerer, Jörn Axel: Privatisierung, Tübingen 2001. Lobo, Sascha: “Deutschland: das gelobte Land des Dinglichen” (https://www.spiegel.de/netz welt/web/diesel-gipfel-deutschland-das-gelobte-land-des-dinglichen-kolumne-a-1161001. html) (accessed at 07. 02. 2023). Lübbig, Thomas/Martín-Ehlers, Andrés: Beihilfenrecht der EU, Munich 2009. Lux, Christina: Rechtsfragen der Kooperation zwischen Hochschulen und Wirtschaft, Ein Rechtsvergleich Deutschland – USA, Munich 2002. Lux-Wesener, Christina: Die Kooperation des Wissenschaftlers, in: Hartmer, Michael/Detmer, Hubert (eds.), Hochschulrecht, Ein Handbuch für die Praxis, 3rd edition, Heidelberg 2017, pp. 416 – 459. Meilensteine in der Geschichte des Internets (https://www.zeit.de/news/2019-10/29/meilen steine-in-der-geschichte-des-internets) (accessed at 06. 02. 2023). Scheller, Kay (ed.): Kommentar zum Haushaltsrecht, Munich 2022. Schlette, Volker: Die Verwaltung als Vertragspartner, Tübingen 2000. Sendlak, Moritz: Unternehmerische Tätigkeit der Hochschulen, Erörtert am Beispiel des Hochschulfreiheitsgesetzes NRW, Baden-Baden 2010. “Steuerspritze von Biontech: Rheinland-Pfalz erstmals Geberland” (https://www.br.de/nach richten/deutschland-welt/steuer-spritze-von-biontech-rheinland-pfalz-erstmals-geberland, TApCLA7) (accessed at 06. 02. 2023). “Universitätsmedizin Main ehrt Biontech-Gründer” (https://www.forschung-und-lehre.de/kar riere/universitaetsmedizin-mainz-ehrt-biontech-gruender-4408) (accessed at 06. 02. 2023). Wendland, Bernhard von: Das Auftreten staatlicher Beihilfen in Forschung, Entwicklung und Innovation. Der Beihilfenbegriff nach dem neuen Unionsrahmen für staatliche Beihilfen zur Förderung von Forschung, Entwicklung und Innovation, BRZ 4/2015, pp. 203 – 213.

“The judge looked at me. ‘Take your hand from the Honesty Regulator and rise and face the court’. I took my hand out of the Truth Hole and stood. ‘How do you plead, guilty or not guilty?’… ‘Guilty.’ The judge lowered his head slightly and looked at me sternly. ‘Come forward,’ he said. I walked up to his chair. He rose, slowly, and then reached out his arms. His large hands, one still with the green stain, grasped my shoulders. I felt something stinging my skin, like a drug injection. And I went unconscious. I awoke in prison.” From: Walter Tevis, Mockingbird, p. 93.

“The High Dignity of the Office of Judge” in the Age of Artificial Intelligence By Eric Hilgendorf*

I. Introduction: Digitization of Legal Decisions? Paul Johann Anselm Ritter von Feuerbach, the founder of international criminal legal science and one of few jurists of world renown,1 delivered a panegyric on the standing and importance of judges under the title Die hohe Würde des Richteramtes (“The high dignity of the office of judge”) on his inauguration as the first President of the Appellate Court of Ansbach on April 21, 1817: “The institutions in which justice appears embodied, as it were, through which it sustains states, protects thrones, secures citizens, are – the courts.”2

The Enlightenment jurist Feuerbach saw judges as the direct servants of justice, independent of state power, and subject only to the law. In Feuerbach’s day, when the independence of the courts on the continent first had to be fought for, this was more of an ideal than a reality, but an ideal worth fighting for, because the separation of powers and thus the rule of law itself can only be realized if the judiciary is secured against state influence and is subject only to the law.3 The court scene quoted above, in which an aging robot judge sentences a defendant to a long prison term, among other things, for reading books, and then imme* Prof. Dr. Dr. Eric Hilgendorf holds the Chair of Criminal Law, Criminal Procedure Law, Legal Theory, Information Law and Legal Informatics at the University of Würzburg. He heads the RobotRecht Forschungsstelle (Robotics Law Research Centre). 1 The most widespread biography is Gustav Radbruch, Paul Johann Anselm Feuerbach – ein Juristenleben, Vienna 1934 (Radbruch, Gesamtausgabe,Vol. 6 edited by Haney, 1997). 2 Quoted from Feuerbach, Naturrecht und positives Recht – ausgewählte Texte, p. 228. 3 For the philosophical and political background, see Hilgendorf, in: Kudlich/Montiel/ Schuhr (eds.), Gesetzlichkeit und Strafrecht, pp. 17 – 33.

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diately executes the sentence, is quite different. The scene is taken from Walter Tevis’ 1980 masterpiece Mockingbird, which depicts the intellectual and moral decline of mankind after the introduction of powerful artificial intelligence.4 The depiction is obviously meant to be satirical; nevertheless, it illustrates the fears and misgivings many people had then and still have today of a justice system being digitized too far. Today, the idea of a “robo-judge” no longer seems as fantastic as it did 40 years ago. With the progressive digitalization of our entire living and working environments, the question of the use of new technologies in law is increasingly being raised. The challenges of digitalization for the legal profession have been discussed for some time under the catchword “legal tech.”5 More recently, the debate has focused on the opportunities, but also the risks, of digitizing the judiciary.6 It could reduce deficits in the administration of justice, improve access to courts, and help save costs.7 In particular, by linking digitized justice to the Internet, it could help people around the world to enforce their rights in court in the first place.8 Another question is whether and to what extent judicial activity can be supported by AI9 or perhaps even whether particularly powerful AI systems could take over the tasks of judges.10 In public opinion, the use of AI in court so far has been viewed rather critically, although there are clear differences from country to country.11 This shows that ques4 Boden, AI: Its Nature and Future; for a comprehensive account, cf. Russell/Norvig, Artificial Intelligence: A Modern Approach. On the ethical and legal policy issues, cf. Coekkelbergh, AI Ethics; Dignum, Responsible Artificial Intelligence; for in-depth treatment, cf. Bendel (ed.), Handbuch Maschinenethik. 5 Breidenbach/Gatz (eds.), Rechtshandbuch Legal Tech; DiMatteo/Janssen/Ortolani (eds.), The Cambridge Handbook of Lawyering in the Digital Age; Hartung/Bues/Halbleib (eds.), Legal Tech: The Digitalization of the Legal Market; Jones/Ryan/Thanaraj/Wong, Digital Lawyering: Technology and Legal Practice in the 21st Century; Mayrhofer/Parycek, Digitalisierung des Rechts – Herausforderungen und Voraussetzungen. For a summary see Wagner, Legal Tech und Legal Robots: The Transformation of the Legal Market through New Technologies and Artificial Intelligence. Kowalski, Avoiding Extinction: Reimagining Legal Services for the 21st Century, describes the future of legal work in the form of a novel. 6 Susskind, Online Courts and the Future of Justice; Susskind, Tomorrows Lawyers: An Introduction to Your Future; cf. also Feigenson/Spiesel, Law on Display: The Digital Transformation of Legal Persuasion and Judgement; Sourdin, Judges, Technology and Artificial Intelligence. 7 Susskind, Online Courts and the Future of Justice, p. 8 and passim. 8 Susskind, Online Courts and the Future of Justice, p. 293 et seq. See also the information at https://worldjusticeproject.org. 9 I use the term “AI” here like Susskind, Online Courts and the Future of Justice, p. 264 et seq. in a broad, functional sense. It is AI when algorithmic systems take over intellectual tasks that were reserved for humans (and some animals) before the emergence of the new technologies. 10 For example, Gless/Wohlers in: Böse/Schumann/Toepel (eds.), Festschrift für Urs Kindhäuser zum 70. Geburtstag, pp. 147 – 165; Greco, RW 2020, pp. 29 – 62. 11 Hartung et al., The Future of Digital Justice, https://legaltechcenter.de/en/studies.html (accessed at 28. 3. 2023).

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tions of acceptance must also be discussed, in addition to the undoubtedly existing technological, legal and ethical problems.12 Richard Susskind, who has dealt particularly thoroughly with the possibilities of “online courts” and the future of justice, points out that critics of judicial digitization often make a fundamental mistake: It is not about digitally simulating judicial activities, but about achieving the objectives of the judiciary, such as de-escalating conflicts, dispute resolution and legal certainty, in new and better ways. In this context, Susskind refers to the need for “outcomethinking”.13 Not only in the Anglo-American legal world, however, this message quite often falls on deaf ears. Even in sophisticated science fiction literature, in which technology futures are critically reflected and analyzed, the use of artificial intelligence with judicial functions is only very rarely discussed, and then with rather negative portents.14 It is therefore surprising, to say the least, that in 2021, largely unnoticed by the public, the German legislature transferred the solution of thoroughly complex legal issues to algorithms.15 The relevant rule can be found hidden in the new German Road Traffic Act in § 1e StVG. There, the requirements for on-board computers of automated vehicles at level 4 are defined. According to the wishes of the German legislature, they not only must have the ability to ensure compliance with road traffic regulations but should also be able to deal with dilemma situations similar to the wellknown “trolley problem”. § 1e (2) (2) StVG states that vehicles with autonomous driving functions must have an “accident avoidance system” which “(a) is designed to avoid and reduce damage, (b) in the event of unavoidable alternative damage to different legal interests, takes into account the importance of the legal interests, with the protection of human life having the highest priority, and (c) in the event of an unavoidable alternative risk to human life, does not provide for any further weighing on the basis of personal characteristics”.16 This regulation is intended to implement the specifications developed by the Ethics Commission on Automated and Connected Driving in 2017 for so-called “dilemma situations” in automated road transport.17 However, the commission had limited 12

Overview in Hidalgo, How Humans Judge Machines. Susskind, Online Courts and the Future of Justice, p. 48 et seq. This important idea can be generalized: “In considering the future of work more generally, then, the big question is not whether machines can take on the work that humans do. It is whether the outcomes of today’s human labor can be delivered in different ways with the support of technologies”, op. cit., p. 51. 14 For example, Tevis, Mockingbird, pp. 87 – 93. 15 Act Amending the Road Traffic Act and the Compulsory Insurance Act – Autonomous Driving Act of July 12, 2021, BGBl. I No. 48, p. 3108. 16 For more details, see Hilgendorf, JZ 2021, pp. 444 – 451. 17 https://www.bundesregierung.de/breg-de/service/publikationen/bericht-der-ethik-kommis sion-729110 (accessed at 28. 3. 2023). This is a special case of the classical balancing problem of “life against life,” on which see, for example, Broome, Weighing Lives. 13

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itself to ethical and legal issues and only marginally addressed the possibility of a technological realization of its specifications. In § 1e (2)(2) StVG, the legislature clearly went beyond the Commission’s specifications. The idea that machines should make decisions in life-versus-life situations seems rather disturbing at first glance. After all, however, decisions on organ allocation are already being made using a computer matching system,18 and the use of artificial intelligence can at least be discussed for triage situations as well.19 Dilemma situations in road transport are characterized by the fact that the pressure on drivers to make a decision is particularly great, because a decision may have to be made within fractions of a second as to how the vehicle is to be steered. The human driver cannot make this decision, he probably cannot even “act” in the concrete situation in the sense of a rationally controlled behavior. Therefore, in dilemma situations in the context of automated driving, either a computer must decide, or alternatively, a practical decision between the options for action is dispensed with altogether, and things are allowed to take their course. Such scenarios obviously cannot be transposed one-to-one to the question of whether and to what extent AI should be entrusted with judicial functions. However, they do show that German legislators believe that certain algorithmic decision-making systems have considerable decision-making capabilities. Dilemma situations are also frequently the subject of judicial decisions.20 The use of AI in judicial functions is therefore not completely out of the question, at least if we are willing to follow the German legislature.

II. Core Elements of the Work of Judges In order to clarify whether and, if so, which judicial tasks can be taken over by an artificial intelligence, it is first necessary to very briefly consider the tasks judges perform.21

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https://www.eurotransplant.org/allocation/allocation-of-organs. In the German discussion on triage in 2021/22, the main issue was which factors may and may not be taken into account when weighing life versus life decisions. 20 From German case law, see, for example, BVerfGE 133, 241 et seq. (shooting down of aircraft hijacked by terrorists) or BVerfGE 160, 79 et seq. (triage situations). 21 The literature on this subject is endless. Regarding German literature, for example, cf. Schumacher (ed.), Der Richter: Aus Beiträgen der Deutschen Richterzeitung 1909 – 1963. Festgabe für die Teilnehmer des Deutschen Richtertages 1963; Schwinge, Der Jurist und sein Beruf. Eine Einführung in die Rechtswissenschaft, p. 97 et seq.; Wagner, Der Richter: Geschichte, Aktuelle Fragen, Reformprobleme; Wassermann, Der politische Richter; from the Anglo-American literature see Mayer, The Lawyers; O’Brien (ed.), Judges on Judging: Views from the Bench. For an Israeli perspective, see Barak, The Judge in a Democracy. 19

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1. Decisions of Legal Issues At the center of judges’ work is making decisions on legal questions in dispute, in the exercise of sovereign power, based on legal rules ascertained, interpreted, and applied by the judge in a concrete legal dispute.22 Behind these meager words lies a daunting task; textbooks on legal methodology and interpretation fill entire libraries.23 The court must decide in accordance with the law, i. e., not arbitrarily. Only when judges conscientiously apply the law do they fulfill their task. The binding force of the law is not only regularly grounded in a state’s Constitution (not all states have a constitution in the sense of Continental Europe), but in many states it is also protected by means of the criminal law, in Germany, for example, by the offence of “judicial perversion of justice”, § 339 StGB (German Criminal Code). Adherence to the law is an essential prerequisite for the acceptance of judicial decisions, because any “legal system that is openly agreed upon and adopted democratically must be careful not to raise any doubts about its correctness, so as not to compromise the general acceptance of the system or the enforceability of its decisions”.24 In many cases, however, decisions do not simply follow from the statute law, but also require the application of more far-reaching criteria from previous case law, the guiding principles of the legal order, or social morality.25 Especially the latter point is of importance in our context: Judicial decisions should not only be lawful, but also just: “The justice that is mediated by the legal order can be called justice immanent to the legal order. It is based on this justice and according to its directives that society manages its affairs. By constantly reviewing the legality (lawfulness) of legal procedures, it simultaneously must decide on their legitimacy in accordance with the substantive rules of the legal order and the justice thus established. The judiciary has to fulfil the task of deciding on constantly posed questions of legality in individual cases and preserving or establishing legitimacy. This task is not limited to control to the letter of the respective law or statute. Rather, when applying the law, the meaning and purpose of the rules must be appreciated, which goes beyond the superficially recognizable meaning of the provisions. At the same time, the entire legal context must be considered and appreciated from the point of view of substantive legitimacy. This means that the review of formal legality simultaneously includes a

22 Schulze-Fielitz refers to a “(dispute) decision by a neutral third party in binding to the applicable law”, in: Dreier (ed.), Grundgesetz-Kommentar, Art. 92 no. 26. 23 A well known and influential German-language account is Larenz, Methodenlehre der Rechtswissenschaft; for a more recent work, cf. Möllers, Juristische Methodenlehre; also Hilgendorf, in: Knauff/Spohn (eds.), The Handbook of Rationality, pp. 659 – 667. 24 Losch, Kulturfaktor Recht, Grundwerte, Leitbilder, Normen, p. 186 (translated by the author). 25 Möllers, Juristische Methodenlehre, § 1 marginal no. 63.

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substantive legitimacy review, which goes back to the guiding fundamental ideas of the legal order. In this way, the legitimacy of the legal order is also examined and further developed.”26

Interfaces for the inclusion of such assessments are, for example, legal references to accepted morals (§ 228 StGB), or to good faith (§ 242 BGB). A good judge therefore also needs legal background knowledge, one could also say: a solid legal education, which requires intensive study, many years of dealing with the subject and above all a lot of practical experience.27 If the judge succeeds in reaching a judgment in accordance with the applicable law and in harmony with the fundamental values and principles of the legal system, then this is a decision that in any case can be classified as “justifiable” or “acceptable”. Anyone who has some experience with the application and interpretation of law knows that in many cases more than one decision can be “correct” in this sense. This means that at least in the case of more complex legal decisions, personal evaluation by the judge always plays a role. A good judge should be aware of the given scope for decision-making and ideally also deal with the other justifiable solutions. In addition, a good judge should justify why he or she chose a specific solution and not another. Particularly in judicial decision making at the highest level of the court hierarchy, such as that of a Supreme Court, this leads to the problem that the decisions can almost always also be interpreted as political decisions, which often leads to tensions with political decision-makers.28 Such tensions are a sign that the separation of powers is working. They should therefore be viewed positively, not negatively. A strong judiciary is an essential element of the separation-of-powers system and is thus essential for the rule of law. 2. Legal Peace and Acceptance However, a court’s decision on a legal issue should not only be justifiable, but it should also, if possible, restore legal peace, i. e., be accepted by the parties concerned. In criminal proceedings, the aim is to make it clear to the defendant that he has done 26 Losch, Kulturfaktor Recht, Grundwerte, Leitbilder, Normen, p. 183 (translation by the author). 27 Schwinge, Der Jurist und sein Beruf. Eine Einführung in die Rechtswissenschaft, p. 99 et seq. 28 Barak, The Judge in a Democracy, p. 215: “There is a constant tension in the relationship between the courts and other branches of the state”; see also ibid, p. 217 et seq. This context is also relevant for understanding the controversy over judicial reform in Israel 2023. From the perspective of a U.S. Supreme Court Justice, cf. the insightful text by Breyer, The Authority of the Court and the Peril of Politics. Further perspectives are treated in the collection of texts by Roellecke (ed.), Zur Problematik der höchstrichterlichen Entscheidung; for an account specifically on the German Federal Constitutional Court, cf. Jestaedt/Lepsius/Möllers/Schöneberger/Allert (eds.), Das entgrenzte Gericht: Eine kritische Bilanz nach 60 Jahren Bundesverfassungsgericht.

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wrong and to influence him with the judgment in such a way that his return to lawful behaviors is prepared. A good judge therefore needs, in addition to thorough knowledge of the law and human experience, psychological empathy to be able to achieve that procedural goal.29 Another factor may be added: Judges not only decide on the law, but also represent the law and the rule of law. This results in standards of “good judging” that go beyond their orientation to the applicable law.30 It is not without reason that judges are regarded as the “representatives” of a given legal system. This is particularly true in the Anglo-American legal sphere.31 In Germany, too, to mention one country from the continental legal sphere, the position of judge is associated with a high degree of social prestige. This is particularly true of judges at the higher courts. This prominent role is reflected in the official dress and often also in the architecture of the court buildings. In addition, there are codes of conduct that apply specifically to judges.32 Taking all this together, it becomes more than clear that judicial tasks cannot be taken over by an AI consisting of a machine and software. It is not just about simple subsumption and the provision of certain legal information, but about representation of the state and its law, the communication of law to society, and the acceptance of state power by the population. 3. Artificial Intelligence as Support However, that does not mean that digitization and artificial intelligence cannot be used in courts at all. Once again, I would like to cite none other than Anselm Ritter von Feuerbach as a guarantor for this thesis. In his lecture on the “dignity of the office of judge,” already quoted above, he discussed the two main duties of judges and explained: “As the first duty which justice imposes on its guardians, I have in mind thorough, mature deliberation which guarantees to the conscience the truth and rightfulness of the decision. The second duty I have in mind is that the seeker of justice should achieve his right to the 29

It is therefore even more regrettable that the subject of “legal psychology” plays virtually no role in legal training, at least in Germany, not even in special forms such as the psychology of testimony. From the literature, see at least Effer-Uhe/Mohnert, Psychologie für Juristen; specifically on the psychology of testimony cf. Jansen, Zeugen- und Aussagepsychologie. From the Anglo-American literature cf. Tyler, Advanced Introduction to Law and Psychology. 30 For a judicial perspective cf. Schneider, in: Verein Deutscher Verwaltungsgerichtstag e.V. (ed.), 19. Deutscher Verwaltungsgerichtstag Darmstadt 2019, pp. 323 – 359. 31 On the status of the judge in Anglo-American legal systems cf., Friedman, Law in America: A Short History, p. 9: “crucial and important figures.” 32 In Germany, Section 39 of the Judges Act (DRiG) requires: “Judges shall conduct themselves within and outside their office, including political activities, in such a way that confidence in their independence is not jeopardized”. In addition, in probably all legal systems there is a special judicial ethos, which is also expressed in a pronounced community spirit of judges.

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greatest possible extent in the shortest possible time. A delayed attainment of justice is often as bad, often more pernicious, than a loss of justice in good time.”33

This means that the court should not only decide questions of law and thus establish legal peace but should and must also consider the aspects of speed and efficiency. The court should bring its decisions to the attention of the public as quickly as possible. It is obvious that this is not only in line with the aims of legal acceptance and the creation of legal peace, but that these aims even require efficiency and speed in judicial decision making. It speaks for itself that the applicable law already prescribes speedy legal decisions.34 This means that courts must make use of such means which, without compromising the quality of their decisions, help to make decisions quickly and bring them to the attention of the public in an appropriate manner. Today, this means above all: the use of digital methods. Digital methods, including artificial intelligence, are therefore not merely pleasant add-ons, “nice to have”; rather courts must use modern technological means if they enable them to perform their assigned tasks more quickly and effectively. One can thus also derive an obligation to keep up to date with relevant new technologies and to be open to their use. This is all the truer in view of the fact that the matters to be judged by judges are becoming increasingly complex.35 However, to reiterate it, we are talking here about supporting the work of judges, not about final decision-making by AI systems.

III. AI Use to Compensate for Human Weaknesses AI could have a supporting effect insofar as it can help to neutralize certain sources of error typical of human decision-makers.36 Modern decision psychology has revealed that human decision-makers, and thus judges as well, are subject to a variety of emotional and cognitive biases that a human being can hardly escape, even if he or she is aware of the problem factors. This obviously poses significant problems for the judiciary. It should be noted that Anglo-American and European legal systems differ significantly in several respects, especially regarding the way decisions are made,

33

The High Dignity of the Office of Judge (supra note. 1), p. 227. Feuerbach goes on to say: “But all order of law is perverted if the second duty is not limited by the first. It is the duty of a judge not to hesitate, but just as certainly not to hurry; for hurry makes haste, and a hasty legal decision is very often only a hasty injustice” (loc. cit.) (translation by the author). 34 The acceleration requirement, also known as the principle of acceleration, is discussed mainly for criminal proceedings (cf. Art. 6 (1) sentence 1 ECHR, Art. 20 III GG), but applies beyond that in all areas of law. For more details, see Beulke/Swoboda, Strafprozessrecht, no. 56 et seq. 35 Posner, Reflections on Judging, p. 54 et seq. 36 Cf. Nink, Justiz und Algorithmen. Über die Schwächen menschlicher Entscheidungsfindung und die Möglichkeiten neuer Technologien in der Rechtsprechung, pp. 45 – 76.

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such as the position of the judge and the involvement of a jury.37 Nevertheless, the results of decision psychology can be applied mutatis mutandis to both legal systems. Only a few aspects can be addressed here: The problem of “framing” is understood as the effect in which one and the same piece of information can elicit different reactions in human subjects depending on their previous experience with the specific issue.38 Those who know the corresponding psychological mechanisms are therefore able to manipulate judges and, even more so, juries. AI, on the other hand, is likely to be insensitive to forms of “framing” designed for humans. Probably AI can be influenced by (other) forms of “framing”. This means that, maybe, collaboration between a human judge and a machine could help to overcome at least some of the problems of “framing” at courts. Another phenomenon that has been discussed, at least in Germany, for some time is the so-called “anchor effect”.39 It has been found that decision-makers tend to base their decisions on “anchors” that have previously been brought to their attention, for example, when determining certain numerical values (such as the amount of a fine). Thus, it may happen that for one and the same set of facts, completely different penalty levels are set, depending on the penalty level (anchor) proposed by the prosecution. With an AI, on the other hand, it should be possible to exclude anchor effects by means of appropriate technological safeguards. Another much-discussed source of error is called “confirmation bias”.40 This refers to the empirically verifiable phenomenon “that people are more likely to perceive information and evaluate it as important if it fits their own expectations and thus supports their own point of view. This results in the tendency to give priority to information that confirms one’s own theories and forecasts, even in decision-making processes.”41 The importance of confirmation bias, e. g., for judicial evidentiary proceedings in civil or criminal cases, is obvious. An AI system, on the other hand, would not be subject to confirmation bias – at least not if that issue is addressed when setting up the system. In these and many other cases, AI could be used to generate a “second opinion.” It could also inform human decision-makers about specific problem factors, warn them and possibly train them. If it is true that the problems outlined do not occur using AI, or at any rate can be prevented technologically, this means that it is precisely a merging of human decision-making with machine support that could help to avoid many rationality deficits in judicial decisions. The future therefore belongs neither to the 37

For more details, see below IV. Section 4. evaluation of evidence. Effer-Uhe/Mohnert, Psychologie für Juristen, p. 112 et seq.; for a fundamental treatment, cf. Tversky/Kahnemann, Science 211 (1981), p. 453 et seq. 39 Effer-Uhe/Mohnert, Psychologie für Juristen, p. 55 et seq. 40 Effer-Uhe/Mohnert, Psychologie für Juristen, p. 126 et seq. 41 Nink, Justiz und Algorithmen, Über die Schwächen menschlicher Entscheidungsfindung und die Möglichkeiten neuer Technologien in der Rechtsprechung, p. 63. 38

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“human only” nor to the “machine only” model, but to collaboration between humans and machines.

IV. Competency-Enhancing Uses of AI In addition to the function of AI in the judiciary outlined above, which could be described as neutralizing and compensating for sources of error, the possibilities for judicial action are being expanded. AI can help to make the judiciary even more efficient than before, increase the acceptance of law and bring it closer to the people. In this section, we will take a closer look at some important possible applications of this kind. 1. Database Analysis A first and particularly obvious use of artificial intelligence to support judicial decision-making is in the preparation of relevant decisions and literature42 and the search for specific topics in case law and literature databases. This can involve leading decisions, but also literature on specific topics, which can de independently structured and presented by AI. Thus, AI can be used to support sentencing decisions. In addition, sentencing decisions can be digitally recorded in full text without much effort and are thus available as a benchmark for comparison. Given the volume of decisions that arise, a human would be completely overwhelmed with the task of picking out similar decisions and identifying relevant sentencing factors. The situation is different with regard to artificial intelligence, which can analyze enormous amounts of data in a very short period of time and make specific sentencing suggestions to the judge on that basis.43 2. Prognoses AI is not only very good at recognizing patterns, but it can also derive regularities from those patterns and make forecasts based on them.44 This also and especially applies to predictions about human behavior. In the USA, COMPAS forecasting soft42

The development of legal informatics began with this task, see for example Jones (ed.), Law and Electronics; Simitis, Rechtliche Anwendungsmöglichkeiten kybernetischer Systeme. 43 Kohn, Künstliche Intelligenz und Strafzumessung: Wie der Einsatz technischer Hilfsmittel für eine gerechtere Sanktionspraxis im digitalen Zeitalter sorgen könnte. 44 A different perspective is taken by Gless/Wohlers, in: Böse/Schumann/Toepel (eds.), Festschrift für Urs Kindhäuser zum 70. Geburtstag, pp. 147 – 165; who, however, mix up “prognoses” with “valuations”: A prognoses is based on an empirical regularity that is extended into the future. Prognoses can be made without evaluating what will happen in the future. In contrast, a “valuation” presupposes an element of personal opinion as “good” or “bad”, “beautiful” or “ugly” and can accordingly not be given value-free.

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ware has long been used to assess the probability of recidivism. The system has been heavily criticized because of the suspicion that it may foster prejudice against Black male offenders. However, the Minnesota Supreme Court has ruled that the system may continue to be used.45 In law, too, AI could be used for forecasting purposes, not only in the context of predictive policing, but also to deal with judicial tasks. For example, one could think of using artificial intelligence to support decisions about the expected consequences of punishment in the case of specific individual offenders. In civil law, the court could instruct an AI to create personality profiles, based on which decisions can be made that are particularly effective because they are acceptable to the parties concerned and can promote peace. The examples show that procedural law may have to be adapted to these new possibilities. However, they also make it very clear that the new technologies are highly sensitive to fundamental rights and that their use requires first a very careful analysis of the risks they might pose.46 Ultimately, the aim is to make considerations explicit that judges have previously made unconsciously, and to use AI to convert those considerations into rule knowledge that can then be used for explanatory and predictive purposes. Deep learning technologies could be useful for this, since they do not require that rule formation be performed by humans, but rather that the algorithm itself works out the rules. 3. Writing Text In early 2023, ChatGPT speech software attracted enormous media attention. Developed by Open AI, this artificial intelligence makes it possible to generate highquality texts simply by asking appropriate questions. The system is so good that texts generated by it cannot be easily distinguished from human texts. The fact that it was apparently possible to pass legal exams using AI-generated texts attracted particular attention.47 The system has also been tested for its usability in legal work. Even though it does not seem to be possible so far to produce convincing legal opinions using ChatGPT, the system can still provide information on legal issues at a high level and quite appropriately in terms of content. Especially for university exams this presents a significant challenge. It has become very easy to write seminar papers or to have them written, which hardly differ from texts written by a human being.

45 See https://harvardlawreview.org/2017/03/state-v-loomis (accessed at 28. 3. 2023); for more detail, cf. Hilgendorf, in: Fischer (ed.), Beweis, p. 241 et seq. 46 The legislator can and should take a comparative legal approach here because the technological standards are unlikely to differ significantly internationally. 47 Choi/Hickman/Monahan/Schwarcz, ChatGPT Goes to Law School, Minnesota Legal Studies Research Paper No. 23 – 03.

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The use of prefabricated text in the judiciary, for example in prosecutorial work, is not new. From there, it is no longer a big step to the use of text-generating AI. What tasks can be performed in the judiciary by ChatGPT remains to be seen. It is very likely that the public will soon have legal information generated over the Internet. This could mean that lawyers will face new competitive pressures. In addition, judges and public prosecutors will increasingly have to deal with the first or second opinions of “Judge Chat”.48 Since adjudication in civil matters does not necessarily have to be conducted before a state court, this could lead to conflicts of interest no longer being decided before state courts, but before privately operated arbitration courts online according to rules generated or at least interpreted by algorithms.49 It is obvious that US tech giants in particular come into question as possible providers. In my opinion, much depends on embedding the new technology in the established procedural culture quickly so that essential legal requirements can be preserved and defended. Passivity and disregard for the new technological possibilities, coupled with naive trust in the traditional methods, could very quickly take revenge, for example in the way that parties to conflicts, at least in civil disputes, forgo human legal assistance and submit directly to the decision of the AI judge. In any case, the judiciary as we know it will change significantly – the only question is whether it will move forward in a self-determined manner or be driven and thereby weakened.50 4. Evaluation of Evidence A possible use of AI in legal proceedings that has not yet been sufficiently appreciated is its use in the context of fact-finding, evidence gathering, and the assessment of evidence.51 For example, AI is already being used to identify individual patterns in account transactions. Striking deviations indicate irregularities that may be the result of criminal activity. The use of artificial intelligence in predictive policing has already been mentioned. The importance of “electronic evidence,” such as cell phone data, is increasing. No human can analyze the wealth and complexity of information collected in this process as quickly and efficiently as AI. It could also be used to compare the probabilities of different potential interpretations of facts, for example by simulating different sequences of events. With the help of virtual reality, these sequences could even be visualized so that a court or, in the Anglo-American legal world, a jury could examine them.

48

Something similar is already happening in medicine today with “Doctor Google”. A precursor of this is online-only dispute resolution, which is already prevalent in the ecommerce sector today. 50 Hartung et al., The Future of Digital Justice, https://legaltechcenter.de/en/studies.html (accessed at 15. 4. 2023). 51 Hilgendorf, in: Hilgendorf/Valerius/Kudlich (eds.), Handbuch des Strafrechts, Band 8: Das strafprozessuale Regelverfahren in erster Instanz, § 54 no. 199 et seq. 49

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It becomes questionable in such cases whether a court or jury should have the authority to reject factual findings of a well-established AI. Machine DNA evaluations today have very high probative value.52 Assuming an AI achieved similar performance, should courts or juries still have the power to depart from it? At least for civil law litigation one may doubt it.53 With regard to juries, the question arises whether legal laypersons have the professional skills to deal with e-evidence on their own. It is more likely that whether a jury believes it or not depends to a large extent on the rhetorical skills and manner of the experts trying to convince them. The well-known weaknesses of the jury system are thus again evident here. 5. Communication Another possibility for using AI in the context of the judiciary to relieve the burden on judges is to improve communication between the court and parties, for example through the use of chatbots. Counseling sessions, as well as witness hearings, often pose problems because the people being counseled or questioned do not speak the language of the court or because specific cultural barriers make it difficult for them to access the legal system.54 Artificial intelligence may be able to overcome these access barriers. A chatbot, i. e., a language-capable software, could be designed in such a way that it would be able to adapt to the specific cultural characteristics of its human interlocutor. For example, systems could be designed that would appear familiar to people from the Arab world and create a harmonious conversational atmosphere conducive to establishing the truth. Under certain circumstances, this would make interviews much easier. The system may (only) be visible on the screen, but it could also be made more “realistic” via virtual reality. Computer scientists have been working for some time on similar systems, which could be used not only in the judiciary but also in many other areas.55 Of course, the possibilities for abuse cannot be dismissed as out of hand; it is all the more important to examine possible scenarios for use in detail at an early stage and to create a legal framework that protects the fundamental rights of all those affected.

52

Ackermann/Klages/Roll, Handbuch der Kriminalistik. Kriminalistik für Praxis und Ausbildung, p. 507. However, they warn against overestimating the evidentiary value of DNA analysis. 53 Hilgendorf, in: Hilgendorf/Valerius/Kudlich (eds.), Handbuch des Strafrechts, Band 8: Das strafprozessuale Regelverfahren in erster Instanz, § 54 no. 199 et seq. 54 On questions of “access to the legal system,” cf., for example, Reiser, Grundlagen der Rechtssoziologie, p. 321 et seq.; in general, on the possibilities of “mobilizing law”, cf. Baer, Rechtssoziologie, § 7. 55 Lugrin/Pelachaud/Traum (eds.), The Handbook on Socially Interactive Agents: 20 Years Research on Embodied Conversational Agents, Intelligent Virtual Agents, and Social Robots. Vol 1: Methods, Behavior, Cognition.

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6. Virtual Space with Virtual Agents One possible use of artificial intelligence in the judiciary, which still seems like science fiction today, is to carry out court instructions, witness interviews or entire main hearings in virtual space. Civil law proceedings in particular could be conducted not only online, but could be transferred to a virtual environment in which the actors appear in the form of avatars, i. e., as embodiments of natural persons.56 The corresponding technology has been in preparation for a long time; but only recently it has attracted much public attention.57 For example, a witness in virtual space could meet directly with the (likeably designed) embodiment of a judge and be questioned there. However, such AI applications still require intensive technical, psychological, and legal preparation. It must be clarified how the virtual environment affects litigants, and based on that, a legal framework must be created to enable proceedings to be conducted properly and in accordance with the law, on the one hand, and to safeguard the fundamental rights of those affected, on the other. The pandemic has made it clear what considerable advantages the digitization of legal proceedings can bring, and the use of virtual reality should by no means be ruled out from the outset. 7. Final Decision-Making by AI? Our overview of the possibilities of using AI to support the judiciary would not be complete without concluding with a look at the concept of a true “AI judge”, i. e., a system that can decide legal disputes independently and with legal force. The idea of a final judicial decision by AI sounds revolutionary, but it has been under discussion for quite some time. One only must think of the automation in production and administration that has been discussed since the 1960s.58 In tax and fine proceedings in particular, AI is already being used today to make independent decisions that can, of course, be appealed. One could speak of a limited, as opposed to an unlimited, final decision-making competence; the former is present if appeals against the machine’s decision are still possible, i. e., if human control remains guaranteed. Procedures with limited machine decision-making power can bring considerable gains in efficiency. They simplify administration and adjudication and enable judges to concentrate on complex tasks requiring human participation. It would therefore be wrong to rule out such AI procedures from the outset. However, it is necessary that those affected by an AI decision know that it is not a human but an AI that made the decision (cf. Art. 22 GDPR, which in principle excludes fully automated decisions). 56

Virtual agents, which are controlled by artificial intelligence, are to be distinguished from this. In principle, intermediate forms are also possible. 57 Ball, The Metaverse and how it will revolutionize everything; Lorenz, Metaversum. 58 Overview in Froomkin, in: Sills (ed.), International Encyclopedia of the Social Sciences, pp. 480 – 489.

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The procedure must therefore be transparent. The introduction of AI decisions should also be preceded by parliamentary measures in each individual application and should be prescribed by law. Finally, legal remedies against AI decisions must be possible, ensuring that final decisions are made by humans.

V. Problems in the Use of AI in the Judiciary If one reviews the possibilities mentioned above for supporting judicial work by means of AI, impressive perspectives open up that this technology could help provide support to the judiciary in fulfilling its tasks and then expand that support further. Nevertheless, the risks involved should not be underestimated. 1. General Problems One problem that always arises when algorithms are used is that it must be ensured that the systems function as error-free as possible.59 This is particularly true in an area as sensitive to fundamental rights as the application of law. It follows that not only must programming errors be avoided as far as possible, and adequate methods used to neutralize them, but cyberattacks on the systems must also be countered. The digitization of justice stands and falls with cybersecurity.60 A second problem regarding the use of artificial intelligence is that such systems are only as good as the data with which they have been trained or have developed themselves. In computer science, this is often summed up using the phrase: “junk in, junk out.” That means that social problem situations, e. g., admission practices to certain professions that are perceived as discriminatory, could easily be perpetuated by AI. The problem area of prejudiced AI addressed here has already been dealt with intensively in the literature.61 A third basic problem is that the transition from merely supporting AI to self-deciding AI is driven by a whole range of psychological factors that need to be recognized to at least be able to mitigate their effects. One of these is human convenience, which makes it seem not only obvious but also preferable to simply adopt machine suggestions, on sentencing for example. This is all the easier the more the algorithm has proven itself in practice. If one has only had good experiences with a system, that

59 There will hardly ever be 100 % security. In areas as sensitive to fundamental rights such as the judiciary, however, a particularly high level of security must be strived for, which must also be improved dynamically in light of new technological developments. 60 The German Federal Office for Information Security (bsi) provides up-to-date information on threats in Germany; see https://www.bsi.bund.de/DE/Home/home_node.html. For Internet criminal law, see Hilgendorf/Kusche/Valerius, Computer- und Internetstrafrecht. 61 See only Coeckelberg, AI Ethic, p. 125 et seq.

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could very easily lead in practice to almost blind trust in the suggestions made by the machine (so-called “machine bias”). Closely connected with the possibility of an unintended shift of real decisionmaking power, away from humans to machines, is the danger of a loss of decision-making ability and courage on the part of humans who are called upon to make decisions. It has been known for a long time that the use of technology has repercussions for people who use technology, and that these repercussions can include the loss of certain abilities.62 If, for example, a calculator is able to perform arithmetic tasks much faster and more reliably than a human being, it is obvious that people will no longer use their arithmetic ability at all, and will lose it sooner or later. This is exactly what happened after the introduction and use of pocket calculators in schools from the seventies onwards. Such processes are not to be evaluated negatively from the outset but should be consciously perceived and reflected upon. Judges, as has been made clear several times above, should remain the legal authorities with whom final decisions rest.63 It can be assumed that the use of AI will incur high costs at first, while subsequent expansions, and the modularized development of new services can be carried out within the framework of normal budgets. To avoid technological dead ends, it may be helpful to look beyond national borders to countries that have already made more progress in digitizing their justice systems. These do not necessarily have to be countries in the traditionally technologically superior West; rather, the digital transformation makes it possible for countries that have tended to lag behind in technological development to take on leading roles.64 Finally, acceptance problems must not be ignored.65 The use of artificial intelligence in such a sensitive field as judicial decision-making will be carefully noticed and evaluated by the justice-seeking public. And precisely because the law depends on the acceptance of the population for its effectiveness, it is of the utmost importance to eliminate acceptance problems, insofar as they are unjustified, by means of education and good arguments. In some cases, however, lack of acceptance will also be based on genuine problems. In such cases – especially in a democracy – technology must adapt to humans and not vice versa. This can be interpreted as a manifestation of “digital humanism”.66

62

The loss of human ability is vividly depicted in the movie “Wall-E,” where humans eventually even lose the ability to move on their own two feet because of robotic overcare. 63 See above Section 2. Specific legal challenges. 64 Hartung et al., The Future of Digital Justice, https://legaltechcenter.de/en/studies.html (accessed at 28. 3. 2023). 65 Hidalgo, How Humans Judge Machines. 66 Fundamental to digital humanism is an orientation toward human dignity.

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2. Specific Legal Challenges A basic problem that has been too little addressed so far, and which is closely related to the prejudice problem, is that the use of self-learning artificial intelligence entails the danger of unreflected structural judicial conservatism. If algorithms learn only based on older decisions and propose new decisions solely based on the older case material, the innovative element that distinguishes good judges and good justice is missing. If that happens, new values and changes in social morality are not considered by the algorithms. It cannot be ruled out that technology will one day succeed in solving this problem, for example by specifically incorporating new values into algorithm-based decision development. But as long as that is not yet practically possible, judges must always check whether the decision proposal developed on the basis of older case law and older views in the literature is actually acceptable in the present. This, too, is an argument for leaving the final decision-making to human beings, and not to machines. Another fundamental problem lies in the fact that the way in which AI systems arrive at their decision proposals is ultimately unclear.67 The human decisionmaker is guided, at least in civil law systems, by statutory provisions which are to be interpreted according to their wording, considering the intention of the legislature, statutory systematics, and their “objective sense”. This so-called “teleological method of interpretation” de facto consists of consequential considerations.68 What intellectual steps judges take to arrive at their decisions, however, is more of a psychological issue. We should therefore differentiate the production of judicial decisions from their presentation.69 In Anglo-American legal systems, the binding force of written norms is less important. Instead, judicial decisions are guided by precedents, i. e., past legal decisions.70 At first glance, this seems to be more in line with the use of AI, which also makes its decisions more based on older legal decisions, than on an orientation to written law. However, a closer look reveals that the use of AI also raises problems in the context of case law: A new legal rule can no more be derived from a single court decision than from a series of decisions. What is always required is an abstraction and the establishment of 67

Hilgendorf, in: Fischer (ed.), Beweis, p. 249 et seq. Cf. Möllers, Juristische Methoden, § 5 no. 10. In contrast, he understands consequenceoriented argumentation as an “extension” of teleological argumentation. This can be agreed with, at least to the extent that a “teleological” interpretation can conceptually and factually also be understood as other forms of interpretation than only the consideration and evaluation of the expected empirical consequences of certain variants of interpretation. 69 Greco, RW 2020, p. 44, refers to the distinction between “context of discovery” and “context of justification” that is also common in the philosophy of science. 70 One often speaks of “reasoning from case to case,” such as Levi, An Introduction to Legal Reasoning, p. 1. 68

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a rule based on that abstraction: from the precedent or precedents, those factors F1 – Fn are established which support the decision. The rule based on that is then: Whenever the factors F1 – Fn are present, the decision must be the same. If this method is followed, the differences between the decision-making procedures in Anglo-American law and continental law are less pronounced than is generally assumed: In civil law, the decision-making rule is taken from written law; in case law, it is established by the court itself based on precedents. Both procedures have their advantages, but also their disadvantages. Rule formation by AI is also based on cases or case decisions and thus resembles the method of the case law judge. In contrast, the internal processes in AI are unlikely to be similar to those of an Anglo-American judge who renders a decision on the basis of specific precedents. The problem of non-human decision-making71 thus also arises here. Does the party have a right that the judgment was reached by means of traditional “human-based” legal methods, or is it sufficient that the result could also have been reached by a human judge without violating the law, i. e., that it appears to be “compatible” with previous legal practice? Since we are also insufficiently informed about the “internal processes” of human judges, there is much to be said for allowing compatibility of the decisions to suffice.72 A final serious problem lies in the danger that the same monopolies will emerge in judicial software that can already be observed for software in general. Nearly all the software solutions used world-wide originate from the USA and many of them belong to a few large companies.73 If alternative offerings emerge, whether in the USA or outside it, they are quickly bought up and either incorporated into the companies’ own portfolios or not developed further. The formation of monopolies therefore does not promote innovation, but rather inhibits it. In the context of court software, there is also the fact that a sovereign community itself must be able to ensure that judicial tasks are carried out on its territory. It is a public task that citizens have a right to expect to be fulfilled. Extensive dependence of the judiciary on large foreign corporations, which would be free to decide whether to extend or modify existing contracts, would hardly be compatible with the state’s duty to guarantee a functioning judiciary, and would therefore probably be unconstitutional.

71

See above V. Section 2. Specific legal challenges. See also Greco, RW 2020, p. 42 et seq. 73 The problem is now being addressed by both the U.S. and the European antitrust authorities, so far without resounding success. European digital policy has had a certain effect, attempting to ensure responsibility and break monopoly positions, for example, through the General Data Protection Regulation, but also through newer regulations such as the Digital Services Act or the Data Act. 72

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VI. Summary and Outlook For the time being, it is not possible to replace judges and courts with artificial intelligence. Even if it were technically possible, it would not be wise. The tasks of the courts go far beyond producing legal information and applying the law in individual cases. They are also responsible for creating acceptance, on the one hand for individual legal decisions, and on the other hand for the state and its legal system in general. The independent judiciary plays a central political role in the structure of the state based on the separation of powers. AI cannot take over these tasks. However, that does not mean that AI cannot be fruitfully applied in the judicial branch. To begin with, it can help compensate for cognitive deficits among decision-makers. Furthermore, it may soon enable additional news, services for citizens, such as specific online offers on legal issues, individualized and even culturally sympathetic advice, or concrete suggestions for dispute resolution in specific cases. Depending on the circumstances, however, humans can and should also be involved there. The future belongs to new forms of cooperation between man and machine, which compensates for their respective weaknesses and enhances their strengths. In the medium term, individual activities of the judiciary, including actual court hearings, could be shifted step by step into virtual space where the litigants are present only in the form of their avatars. Simple and subordinate decisions could well be made there by artificial intelligence. In all essential questions, however, the final decision should remain with human beings to preserve the humanistic orientation of our legal system. Bibliography Ackermann, Rolf/Klages, Horst/Roll, Holger: Handbuch der Kriminalistik. Kriminalistik für Praxis und Ausbildung, 6th edition, Stuttgart 2022. Baer, Susanne: Rechtssoziologie: Eine Einführung in die interdisziplinäre Rechtsforschung, 5th edition, Baden-Baden 2023. Ball, Matthew: The Metaverse and how it will revolutionize everything, New York 2022. Barak, Aharon: The Judge in a Democracy, Princeton/Oxford 2006. Bendel, Oliver (ed.): Handbuch Maschinenethik, Wiesbaden 2019. Beulke, Werner/Swoboda, Sabine: Strafprozessrecht, 16th edition, Heidelberg 2022. Boden, Margaret, A.: AI: Its Nature and Future, Oxford 2016. Breidenbach, Stephan/Gatz, Florian (eds.): Rechtshandbuch Legal Tech, Munich 2018. Breyer, Stephen: The Authority of the Court and the Peril of Politics, Cambridge/Mass. 2021. Broome, John: Weighing Lives, Oxford 2006. Choi, Jonathan H./Hickman, Kristin E./Monahan, Amy/Schwarcz, Daniel: ChatGPT Goes to Law School, Minnesota Legal Studies Research Paper No. 23 – 03, Januar 2023.

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Coeckelbergh, Mark: AI Ethics, Cambridge/Mass. 2020. Dignum, Virginia: Responsible Artificial Intelligence, Cham 2019. DiMatteo, Larry A./Janssen, André/Ortolani, Pietro (eds.): The Cambridge Handbook of Lawyering in the Digital Age, Cambridge 2021. Dreier, Horst (ed.): Grundgesetz – Kommentar, Vol. 3, 3rd edition, Tübingen 2018. Effer-Uhe, Daniel/Mohnert, Alicia: Psychologie für Juristen, Baden-Baden 2019. Ethical Guidelines for Trustworthy AI, https://digital-strategy.ec.europa.eu/en/library/ethicsguidelines-trustworthy-ai (accessed at 25. 4. 2023). Feigenson, Neal/Spiesel Christina: Law on Display: The Digital Transformation of Legal Persuasion and Judgement, New York/London 2009. Feuerbach, Paul Johann Anselm: Naturrecht und positives Recht – Ausgewählte Texte, edited and with an appendix by Haney, Gerhard, Freiburg u. a. 1993. Friedman, Lawrence M.: Law in America: A Short History, New York 2002. Froomkin, Joseph N.: Automation, in: Sills, David L. (ed.), International Encyclopedia of the Social Sciences, Vol. 1, New York 1968, pp. 480 – 489. Gless, Sabine/Wohlers, Wolfgang: Subsumtionsautomat 2.0. – Künstliche Intelligenz statt menschlicher Richter?, in: Böse, Martin/Schumann, Kay H./Toepel, Friedrich (eds.), Festschrift für Urs Kindhäuser zum 70. Geburtstag, Baden-Baden 2019, pp. 147 – 165. Greco, Luis: Richterliche Macht ohne richterliche Verantwortung: Warum es den RoboterRichter nicht geben darf, Rechtswissenschaft (RW) 1/2020, pp. 29 – 62. Hartung, Dirk et al.: The Future of Digital Justice, Hamburg 2022, https://legaltechcenter.de/en/ studies.html (accessed at 15. 4. 2023). Hartung, Markus/Bues, Micha-Manuel/Halbleib, Gernot (eds.): Legal Tech: The Digitalization of the Legal Market, Munich 2018. Hidalgo, César A.: How Humans Judge Machines, Cambridge/Mass. 2019. Hilgendorf, Eric: “Die Schuld ist immer zweifellos”. Offene Fragen bei Tatsachenfeststellung und Beweis mit Hilfe “intelligenter” Maschinen, in: Fischer, Thomas (ed.), Beweis, BadenBaden 2019, pp. 229 – 251. Hilgendorf, Eric: Gesetzlichkeit als Instrument der Freiheitssicherung – Zur Grundlegung des Gesetzlichkeitsprinzips in der französischen Aufklärungsphilosophie und bei Beccaria, in: Kudlich, Hans/Montiel, Juan Pablo/Schuhr, Jan C. (eds.), Gesetzlichkeit und Strafrecht, Berlin 2012, pp. 17 – 33. Hilgendorf, Eric: Grundlagen der Beweiswürdigung und der Grundsatz in dubio pro reo, in: Hilgendorf, Eric/Valerius, Brian/Kudlich, Hans (eds.), Handbuch des Strafrechts, Band 8: Das strafprozessuale Regelverfahren in erster Instanz, Heidelberg 2022, pp. 1471 – 1533 (§ 54). Hilgendorf, Eric: Legal Logic, in: Knauff, Markus/Spohn, Wolfgang (eds.), The Handbook of Rationality, Cambridge/Mass. 2021, pp. 659 – 667. Hilgendorf, Eric: Straßenverkehrsrecht der Zukunft, JuristenZeitung (JZ) 2021, pp. 444 – 451.

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Hilgendorf, Eric/Kusche, Carsten/Valerius, Brian: Computer- und Internetstrafrecht, 3rd edition, Berlin 2023. Jansen, Gabriele: Zeugen- und Aussagepsychologie, 3rd edition, Heidelberg 2022. Jestaedt, Matthias/Lepsius, Oliver/Möllers, Christoph/Schöneberger, Christoph/Allert, Tilman (eds.): Das entgrenzte Gericht: Eine kritische Bilanz nach 60 Jahren Bundesverfassungsgericht, Frankfurt a. M. 2011. Jones, Edgar A. (ed.): Law and Electronics, Albany, New York 1962. Jones, Emma/Ryan, Francine/Thanaraj, Ann/Wong, Terry: Digital Lawyering: Technology and Legal Practice in the 21st Century, New York 2022. Kohn, Benedikt: Künstliche Intelligenz und Strafzumessung: Wie der Einsatz technischer Hilfsmittel für eine gerechtere Sanktionspraxis im digitalen Zeitalter sorgen könnte, Baden-Baden 2021. Kowalski, Mitchell: Avoiding Extinction: Reimagining Legal Services for the 21st Century, Bloomington 2012. Larenz, Karl: Methodenlehre der Rechtswissenschaft, 6th edition, Berlin 1991. Levi, Edward H.: An Introduction to Legal Reasoning, Chicago 1949. Lorenz, Caius: Metaversum, Bamberg 2022. Losch, Bernhard: Kulturfaktor Recht, Grundwerte, Leitbilder, Normen, Cologne 2006. Lugrin, Birgit/Pelachaud, Catherine/Traum, David (eds.): The Handbook on Socially Interactive Agents: 20 Years Research on Embodied Conversational Agents, Intelligent Virtual Agents, and Social Robots. Vol. 1: Methods, Behavior, Cognition, o.O., San Rafael 2021. Mayer, Martin: The Lawyers, New York 1966. Mayrhofer, Michael/Parycek, Peter: Digitalisierung des Rechts – Herausforderungen und Voraussetzungen, Vienna 2022. Möllers, Thomas M.: Juristische Methodenlehre, 5th edition, Munich 2023. Nink, David: Justiz und Algorithmen, Über die Schwächen menschlicher Entscheidungsfindung und die Möglichkeiten neuer Technologien in der Rechtsprechung, Berlin 2021. O’Brien, David M. (ed.): Judges on Judging: Views from the Bench, 5th edition, London 2017. Posner, Richard A.: Reflections on Judging, Cambridge/Mass. 2013. Radbruch, Gustav: Gesamtausgabe, ed. by Kaufmann, Arthur (ed.), Vol. 6, edited by Haney, Gerhard, Heidelberg 1997. Reiser, Thomas: Grundlagen der Rechtssoziologie, 6th edition, Tubingen 2013. Roellecke, Gerd (ed.): Zur Problematik der höchstrichterlichen Entscheidung, Darmstadt 1982. Russell, Stuart/Norvig, Peter: Artificial Intelligence: A Modern Approach, 4th edition, Harlow 2021. Schneider, Udo: “Good judging” – Maßstäbe für richterliches Arbeiten, in: Verein Deutscher Verwaltungsgerichtstag e.V. (ed.), 19. Deutscher Verwaltungsgerichtstag Darmstadt 2019, Stuttgart 2020, pp. 323 – 359.

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Schumacher, Albert (ed.): Der Richter: Aus Beiträgen der Deutschen Richterzeitung 1909 – 1963. Festgabe für die Teilnehmer des Deutschen Richtertages 1963, Cologne et al. 1963. Schwinge, Erich: Der Jurist und sein Beruf. Eine Einführung in die Rechtswissenschaft, Hamburg 1960. Simitis, Spiros: Rechtliche Anwendungsmöglichkeiten kybernetischer Systeme, 1964, reprinted Frankfurt a. M. 1966. Sourdin, Tania: Judges, Technology and Artificial Intelligence, Cheltenham 2021. Susskind, Richard: Online Courts and the Future of Justice, Oxford 2019. Susskind, Richard: Tomorrows Lawyers: An Introduction to Your Future, 2nd edition, Oxford 2017. Tevis, Walter: Mockingbird, London 1980. Tversky, Amos/Kahnemann, Daniel: The Framing of Decisions and the Psychology of Choice, Science, New Series Vol. 211, 1981, pp. 453 – 458. Tyler, Tom R.: Advanced Introduction to Law and Psychology, Cheltenham 2022. Wagner, Albrecht: Der Richter: Geschichte, Aktuelle Fragen, Reformprobleme, Heidelberg 1959. Wagner, Jens: Legal Tech und Legal Robots: The Transformation of the Legal Market through New Technologies and Artificial Intelligence, Wiesbaden 2018. Wassermann, Rudolf: Der politische Richter, Munich 1972.

Platform Crime as a Challenge for Criminal Law Doctrine and (Criminal) Law Policy By Carsten Kusche*

I. Problem Outline The increased importance of online platforms as a medium of exchange creates many advantages as well as many new challenges for the law. In this contribution, the term “platform” is to be understood as online services that primarily convey content produced by third parties. This is done, for example, by Google, social networks such as Facebook, video portals such as Tiktok or commercial intermediaries, but also messengers such as Telegram and small online forums. The “brutalization” of the culture of discussion on the internet, socio-political influence through the spread of disinformation, and illegal online commerce are currently receiving a great deal of attention from the public and politicians. The first legal reforms at national and European level point to further increases in the duties of the individual internet users, but also to consider changes in legal policy with regard to the increased responsibility of online platforms for the content published on them. Platform regulation is also a issue for the criminal law, because criminal activities sometimes take place there. That ranges from drugs and weapons trafficking, criminal copyright infringement, and the dissemination of child pornography all the way to the dissemination of partly criminal “hate speech” and “fake news”. The challenges involved lie at the interface between criminal law doctrine and criminal law policy. Criminal law scholarship is faced with the task of determining whether the phenomenon of platform crime could prove to be the beginning of a – certainly moderate – further development of criminal law principles. On the other hand, the need, the possibilities, and the limits of extending criminal law access to users and, above all, strengthened platform regulation, must be explored. The basic condition for dealing appropriately with platform crime, first of all, is that the complexity of its individual manifestations is explored and it is determined to what extent a structural aggravation of the danger situation emanates from online * Prof. Dr. Carsten Kusche is a Junior-Professor at the University of Mannheim and is completing his second PhD (Habilitation) at the Julius-Maximilians-University, Würzburg.

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platforms. In doing so, it can be assumed that differences can be found depending on the type of offence and the type of platform – and it is to be hoped that this can then play a supporting role in ameliorating the regulation of intermediary services. Another task, which should not be underestimated, is opening up the legal framework in which criminal law exists. Civil liability, for example, can eliminate the need for criminal law, and constitutional law can restrict the scope for design. Moreover, non-criminal platform regulation is currently in a state of flux in Europe. Without claiming to be exhaustive, or that an end is in sight, the following law reforms are just a few examples from the recent past: from the German legislature – the new Media State Treaty and the Network Enforcement Act – which oblige social networks to delete criminal postings – as well as at the European level, the new Copyright Directive already implemented by the Copyright Service Providers Act, and, in particular, the Digital Markets Act and the Digital Services Act.1 The Digital Services Act, in particular, will partially modify the responsibility of platforms for the content created by their users in the EU from 2024. In essence, criminal law scholarship and politics will have to deal with doctrinal and legal policy challenges that the phenomenon of platform crime poses for the criminal law. In this respect, there is a need for discussion in many areas of both the general and special parts of German criminal law. This will not be discussed at length here only with regard to the criminal liability of platform users. Systematic shifts could arise here, for example, with regard to the system of legal goods affected by defamation offences. As fake news and hate speech at least potentially endanger individual freedom of expression and information, and in sum also democratic discourse, and because hate speech seems to be capable of pushing (not only) those affected to withdraw from social media, it has recently been advocated that defamation offences should, in addition to honour, also be directed towards the protection of freedom of expression, democratic opinion formation, and the integrity of public political discourse.2 The demand for the creation of a special offence of dissemination of disinformation is also very prominently gaining support.3 Two further topics should at least be touched upon, as they concern the responsibilities of intermediary services, which should be in the foreground of considerations on intensified platform regulation.

1 BayGVBl. 2020, p. 450; BGBl. I 2017, p. 3352; BGBl. I 2021, p. 1204; OJ L 130, p. 92 (2019); OJ L 265, p. 1 (2022); OJ L 277, p. 1 (2022). 2 Hoven/Witting, NJW 2021, p. 2399 et seq. 3 Fundamentally open, for example, cf. Hoven, ZStW 129 (2017), pp. 718 – 744; Schünemann, GA 2019, pp. 620 – 640; rejecting Valerius, Wahlstrafrecht und soziale Medien, Festschrift für Urs Kindhäuser, p. 837 et seq.

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II. Softening the Distinction between Perpetration and Participation One concerns a possible tendency to soften the elementary distinction between perpetration and participation under §§ 25 – 27 of the German Criminal Code (StGB). At least in some areas, an independence of the liability of platform operators seems to be emerging in Europe. This becomes very clear in relation to online criminal comerce. For a year now, § 127 StGB has made the operation of criminal trading platforms on the internet an offence. Anyone who operates a trading platform on the internet whose purpose is to enable or promote the commission of specific unlawful acts is subject to sanctions. Thus, already in the runup to the possible commission of a criminal offence by the users, the operator is elevated to the status of an offender if it carries out informed participation. Among other things, this causes considerable problems in the construction of a viable reason for criminalizing this activity and places the onus on academia to contribute to a restrictive interpretation of the provision. The influence of the Copyright Service Providers Act, which is the German implementation the European DSM Directive, entered into force six months ago, regarding the structure of perpetration and participation in German copyright law, is largely unresolved. According to § 106 (1) of the German Copyright Act, anyone who publicly reproduces a work without the consent of the rightsholder in cases other than those permitted by law has committed an offence. § 1 Copyright Service Providers Act now stipulates that a service provider, for sharing online content – especially video sharing platforms – publicly reproduces the works itself if it “provides the public with access to copyrighted works uploaded by users of the service.” A criminal law dogmatic embedding of this blanket regulation suggesting perpetration is naturally still pending. Discussion about forms of participation also concerns user liability, for example in relation to “likes” and “shares” of already published materials. Because this is not new,4 this aspect should only serve as a point of transition.

III. Participation after Completion of the Offence? Perpetuation of Violations of Legal Interests as a Characteristic of Platform Crime The classification of likes and shares as perpetrative participation in the sense of § 25 StGB or only as participation in the sense of § 27 StGB is closely connected to the question of whether the phenomenon of platform crime requires modifications of the principles of the ability to participate in an already completed offence. One of the essential structural features of platform crime is likely to be the perpetuation of vio4 On the controversial issue, see for example Krischker, JA 2013, pp. 488 – 493; Reinbacher, JZ 2020, pp. 558 – 563.

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lations of legal interests through the further dissemination of criminal content. The question of how such continuing breaches another person’s right can be prosecuted under the criminal law not only concerns the liability of users for likes and shares. It can also be important for the criminal liability of platform operators. In German criminal law doctrine, a criminal accusation against a platform operator could possibly be based on the fact that he did not delete a criminal posting. We will have to come back to this. At this point, it is sufficient to state that by omission, within the meaning of § 13 StGB, the operator contributes to the fact that criminal content is available to other persons and is further disseminated by them. The fact that criminal law classifications of wrongdoing can cause problems, and this has to do with the distinction between perpetration and participation, has so far been discussed in Germany primarily for insult under § 185 StGB. If liking, sharing or – from the operator’s point of view – not deleting insulting posts is an expression of one’s own disrespect, things would be manageable and a “new” perpetrator of an insult could be constructed – if necessary by omission. However, if one only assumes aiding and abetting in this highly personal offence of expression under § 27 StGB, the controversial problem area of participation after completion or termination opens up. While numerous voices reject the idea participation from the moment of completion for fundamental reasons,5 Reinbacher has created the idea of continuing commission of the offence – i. e. continuing due to ever new knowledge – specifically for insult under § 185 StGB, which allows participation even after the offending action is past.6 It must be examined whether these considerations can be generalised in view of the diverse manifestations of platform crime. In that case, in addition to solutions on the basis of current German law, an independent category of criminal liability for maintaining illegal content in the platform environment could also be discussed, as it is already known in Germany in the case of facilitation under § 257 StGB. This idea does not only concern platform users, but also involves a potential tightening up the liability of intermediary services.

IV. Provider Liability in Particular The focus of efforts by criminal law scholars, and politicians, should be on resolving the difficulties of appropriately determining the liability of platform operators, who, after all, enable the criminal activities of their users in the first place by providing the medium for the offence. If, for example, Facebook blocks 30,000 pieces of content in 6 months, only in Germany, and only in the area either of defamation offences and incitement of masses,7 this raises the question of whether the liability for a 5

Instead of many, Zieschang, GA 2020, p. 68 et seq. with further references. Reinbacher, JZ 2020, p. 559 et seq. 7 Facebook’s NetzDG transparency reports are available at https://de-de.face-book.com/ help/1057152381103922 (accessed at 24. 4. 2023). 6

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user posting per se lies solely with the author – or whether intermediary services do also have legal coliability. A distinction can be made between systemic responsibility for minimising risk and direct liability for individual content. 1. Almost No Direct Liability under Current Law Direct criminal liability of platform operators for criminal content is hardly possible, at least under current German law. Systematically, it would be possible. Despite certain tendencies towards making operator liability independent, as a rule the liability that might arise would probably be aiding and abetting the user’s offence under § 27 dStGB. The first connecting factor of “aiding” is then the provision of storage space for the user as an active act. In addition, an accusation could – secondly – be based on the fact that the operator did not filter out criminal content before it was published – and thirdly, based on the fact that he did not delete criminal content that had already been made public. In most of these cases, however, criminal liability is already excluded by European regulations on liability privileges for internet intermediary services. The liability law for platform operators that was still in force until the Digital Services Act came into force dates back in large part to the early 2000s. At that time, legal policy was still concerned with establishing communication structures on the net and promoting them through extensive freedom from regulation. The so-called e-commerce directive8 and the German implementation – the Telemedia Act – therefore largely exempted all online services that store information for third parties from liability among other things for the illegal content of users. At least in principle, online platforms also fall into this category of so-called host providers. Host providers are not obliged under § 7 (2) Telemedia Act (TMG) to monitor the information they store or to investigate circumstances that indicate illegal activity. Furthermore, § 10 (1) TMG states that these service providers are not responsible for thirdparty information they store for a user as long as they have no knowledge of its illegal contents. The decisive factor is therefore that the content is not the platform’s own, but that of a third party. These provisions apply to all areas of law, i. e. to civil law as well as criminal law and public law. The blanket exemption from liability of host providers was justified by the fact that they merely acted as technological, passive “intermediaries” and had no control over the information they stored.9 However, privilege is waived if the provider has a particular proximity to an illegal content. Categories such as “active role”

8 9

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000. Recital 42 of Directive 2000/31/EC.

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or “making one’s own” have emerged for this purpose.10 However, the definition varies from one area of law to another and does not exactly create legal clarity. Online platforms are, according to a hitherto hardly questioned view, precisely such host providers in the sense of the E-Commerce Directive and TMG, i. e. they do not provide their own content but host that of others.11 Therefore, they do not have to independently check user content either before or after publication. They are only liable if they are aware of illegal content and then do not delete it. At least in criminal law, actual knowledge is required. Contingent intent is therefore not sufficient.12 Even under European law, liability for actively operating the platform and also for failing to filter out criminal content before it is published is thus excluded. This is because the operators might expect to contribute to the uploading of such content. But they do not have to check this. And if storage of content is then automated, they only gain positive knowledge when the posting is already online. Therefore, the only conceivable liability is usually criminal liability by omission for not deleting published posts after becoming aware of them. On the one hand, however, this presupposes a guarantor’s position, which has so far been generally denied.13 On the other hand, it has previously been explained that the main offence of users is already completed and – for example in the case of § 185 – possibly also already finished. In this case, the provider would not be liable for participation in the offence, at least not according to the well-known patterns. In this respect, the criminal law risks for intermediary services are currently extraordinarily low. Furthermore, according to the basic idea of the E-Commerce Directive, intermediaries should not bear any joint responsibility for criminal user behavior. The law – as of the beginning of 2023 – also provides for hardly any duties at the structural level – for example, to pay attention to minimising risks that could promote the dissemination of illegal content. 2. The Structural Dangers of Modern Online Platforms? All that was said above is still considered correct today. However, the thesis of the host provider as a neutral, merely technical intermediary seems to be in need of review, at least in its generality. This is illustrated by the impairment of socio-political discourse through the spread of disinformation and hate speech: In this area, the use of online platforms is unanimously regarded as a particularly effective means of committing the 10 See, for example, BT-Drucks. 13/7385, P. 19; 14/6098, P. 23; BGH MMR 2010, 556 (557). 11 For social networks, cf. ECJ GRUR 2012, 382. 12 For more details see Hilgendorf/Kusche/Valerius, Computer- und Internetstrafrecht, § 2 para. 84 et seq. 13 Thus, for example, Heghmanns, in: Achenbach/Ransiek/Rönnau (eds.), Handbuch Wirtschaftsstrafrecht, part 6 para. 48; for the rule case see also Zieschang, GA 2020, p. 65.

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crime. This is supported by the fact that there is no factual control of content before publication. In addition, there is the special functional logic of online platforms and especially social networks. Content reaches a wider audience through commenting, sharing a post or simply liking it. These functions are very often used casually – e. g. without a linked article being read in full.14 Platform design thus favours the spread of disparaging content and disinformation. This also applies to the algorithm-driven and highly personalised display of content. Such feedback of user interests is suspected of promoting filter bubbles and echo chambers – and thus of reinforcing prejudices and contributing to misconceptions about the social importance of topics or the credibility of information. The prioritisation of the content display is also often based on the extent of the interaction caused. However, emotional posts seem to cause particularly intense user reactions, which promotes their increased presentation. In combination, all this is said to massively promote the dissemination of defamatory posts. 3. Systemic Aggravation of Liability in the Digital Services Act This can be exploited on two levels: one concerns a possible tightening of the direct, also criminal, responsibility of platforms for publication or failure to delete illegal user content – the other is a systemic one, on which the suitability of platforms for the dissemination of illegal content can be reduced. At the structural level, an increased duty on the part of platforms is already becoming apparent. Today, this concerns the deletion obligations in the Network Enforcement Act and, from 2024, in particular the EU’s Digital Services Act. DSA contains, for example, duties on transparency in the use of recommendation systems, the establishment of a notification procedure through which content deemed to be unlawful can be reported, as well as the suspension of service for users who frequently provide unlawful content (Art. 15 ff., 23 f. DSA). “Very large” online platforms must also “identify, analyse and assess any systemic risks arising from the design or operation of their services” (Art. 34 DSA). The European Commission understands this to include the dissemination of illegal content and other impairments to the exercise of freedom of expression and information, “social debate”, “electoral processes” and public safety (Art. 34 para. 2 DSA). If large platforms have identified such risks, they must take measures to mitigate those risks (Art. 35 DSA). That may even involve modifying the functioning of the service (Art. 35 (1) DSA). They must also create the position of compliance officer to monitor compliance with DSA’s obligations (Art. 41 DSA). Violations of DSA must be sanctioned by the Member States (Art. 52 DSA). The European Commission can also impose fines on large platforms (Art. 74 DSA). These legal innovations are a 14 Halvani et al., in: Steinebach/Bader/Rinsdorf/Krämer/Roßnagel (eds.), Desinformation aufdecken und bekämpfen, p. 133; Sängerlaub/Meier/Rühl, Fakten statt Fakes, p. 53.

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milestone in the fight against platform crime. In detail, however, the regulatory content of DSA must of course still be developed and remaining gaps in protection identified and filled. 4. Tort- and Platform-Specific Differentiation of the Duty Model? However, DSA implementation does not necessarily end the discussion about platform responsibility. What is decisive at this point is how one assesses the fact that DSA continues the path taken by the E-Commerce Directive of basic uniform regulation of all intermediary services – and only takes sector-specific peculiarities into account in exceptional cases, and only with regard to systemic responsibility. The liability privileges for host providers remain untouched under DSA, which continues to treat all intermediary services equally. a) Abandonment of Blanket Indemnity? This raises the question of whether more suitable alternatives can be found. It is possible that the model of obligations could also be differentiated with regard to direct liability and focus on the respective structural features and the concrete, offencespecific risks of platforms. This would be accompanied by a moderate intensification of the criminal law risks of platform operation. That the horizontal approach does not have to be irrevocable is shown by the amendment of copyright law. In that area, operators of user-generated upload platforms will no longer be regarded as “neutral” intermediaries. For there – as shown – it is now envisaged that they themselves perform an act of communication to the public or making available, when they provide the public with access to works uploaded by their users. This sounds more like own content than third party content in the liability privilege system. Because liability exclusions provided for in the new Copyright Directive are very similar to those in the E-Commerce Directive, it is debatable whether they have really been undermined in copyright law. However, it was necessary to exclude the direct applicability of the requirement of positive knowledge – § 10 TMG (Art. 17(3) Directive [EU] 2019/790; § 1 Copyright Services Providers Act). Science and politics should find out whether such a differentiation can be generalised. On the one hand, current liability privileges appear for the most part appropriate. The prohibition of general monitoring obligations and the limitation of liability to positive knowledge seem obvious because filtering out all illegal content seems almost impossible due to huge amounts of data. On the other hand, this argumentation is likely to be more powerful in the area of hate speech and fake news than pornography, terrorist propaganda or copyright law, because illegality within the scope of freedom of expression is particularly difficult to determine. In contrast, AI tools are making great progress, for example, in the detec-

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tion of violence and pornography. This is a potential argument for distinctions, especially since preventive filtering primarily in the area of hate speech and fake news also carries the danger of pre-censorship. The thesis that all host providers are merely neutral, technological intermediaries of the content created by their users now appears to be very sweeping, and not only for copyright law. DSA now also considers it very possible that online platforms significantly control the communication process – hence possible future obligations to take risk mitigating measures. If numerous intermediary services – such as social networks – do influence what happens on platforms, they are structurally more likely to stand between the posting user and a strictly content-neutral service provider, who really only offers storage space. In view of the increased importance of platforms for socio-political discourse, a look at German press criminal law in comparison to general criminal law also casts doubt on the usefulness of blanket exemptions from liability. There, a different regulation can be found, which does not limit the criminal liability of persons only indirectly involved in the publication of printed works, but rather extends it. We will have to come back to this. If one advocates a differentiation of liability, one could create legal intermediate categories in the privilege system or – at least from a criminal law perspective, it is possible – end the liability privilege for host providers altogether. For criminal law, it seems preferable to look for boundaries in the positive liability prerequisites of the respective norms instead of having cross-sectional blanket regulation. b) Moderate Tightening of Liability An extension of criminal liability for the mere operation of platforms – as participation in criminal offences committed by users – would then probably be very moderate. For even if it was no longer necessary to examine whether the operator, through the design of the platform, makes the user content “his own” with the consequence of the loss of privileges, the still controversial problem area of neutral aiding and abetting would first open up.15 The activity of most platform operators is socially adequate at the starting point. This can be located at the level of the objective elements of the offence and there in the creation of an unlawful risk, or in the case of intentional offences in the subjective elements of the offence, one can raise the requirements for the recognisability of the main offender’s propensity to commit the offence for the platform operator. With an objectified delimitation, it could be argued, at least in the case of compliance with the new due diligence obligations in DSA, that platform operation does not exceed the limits of permissible risk. Conversely, not every violation of systemic 15 For example Heine/Weißer, in: Schönke/Schröder, StGB, § 27 para. 9; Joecks/Scheinfeld, in: Erb/Schäfer (eds.), Münchener Kommentar StGB, § 27 marginal no. 54 et seq.; Kudlich, in: von Heintschel-Heinegg (ed.), Beck’scher Online-Kommentar StGB, § 27 para. 11 et seq.

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duties of care would lead to the attribution of a principal offence, because the protective purpose of the individual due diligence standard does not always have to lie in the avoidance of individual breaches of the law. The line could generally be drawn where the objectively recognisable design of the platform promotes offences.16 For this, however, one would have to demand specified sales areas for online trade or the establishment of corresponding subject areas with titles such as “weapons” and “narcotics” and notices such as “no control” for online forums.17 In the case of offences of expression, the boundary would be crossed, for example, when users’ posts are activated.18 However, algorithm-controlled influence on the communication process alone is not enough. In addition, case law – also independent of neutral aiding and abetting – places quite high demands on the necessary concretisation of the intent of aiders and abettors. Aiders and abettors must know the essential characteristics of the wrongfulness and the direction of the attack of the principal offence.19 A mere general awareness of the promotion of other people’s crimes is not sufficient, so that the extensions of liability associated with removal of the requirement of positive knowledge in § 10 TMG would be moderate. A modification of the liability system with regard to active platform operation would therefore be significant mainly in the case of criminal liability for negligence, which has so far been completely excluded both due to the lack of a duty to verify as well as the requirement of positive knowledge. The current law only recognises a few offences in this regard. However, in the area of online criminal trading, it would be possible to assume negligent trafficking under the Narcotics or Weapons Acts, which already exists when brokering the sale of illegal goods. In addition, a violation of § 23 Interstate Treaty on the Protection of Minors in the Media, which criminalises negligently making available content that is harmful to minors and incites hatred, could be considered. Insofar as proactive filtering out of individual contents before publication is at issue, significant restraint is probably called for. Constructible would be an offence of omission under § 13 StGB. However, according to criminal law principles, liability for omission presupposes the reasonableness of taking the required action, such as blocking the user or the automated prescreening of content. Due to immense amounts of data, the reasonableness of these measures can be rejected – at least if there are no indications of imminent criminal behaviour on the part of users. Proactive criminal 16

Greco, ZIS 2019, p. 442. See, for example, LG Karlsruhe BeckRS 2018, 40013 para. 9; Kriminalpolitischer Kreis Stellungnahme zu § 126a StGB-E, p. 5. 18 From the perspective of telemedia law, cf. BGH MMR 2010, 556; (critically) Altenhain, in: Erb/Schäfer (eds.), Münchener Kommentar StGB – Nebenstrafrecht II, Pre § 7 margin no. 23 et seq., 27. 19 Kudlich, in: von Heintschel-Heinegg (ed.), Beck’scher Online-Kommentar StGB, § 27 para. 19 et seq.; Joecks/Scheinfeld, in: Erb/Schäfer (eds.), Münchener Kommentar StGB, § 27 para. 104 et seq. 17

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monitoring obligations should be ruled out at least until the automated detection of criminal content is completely error-proof. In contrast to the civil law, there has been little discussion in the criminal law as to whether, at least in the case of prior unlawful user behaviour, liability for failure to filter out contents prior to publication comes into question. Here, §§ 7 and 10 Telemedia Act (TMG) at least have the effect of clarifying matters. Article 23 DSA will require in the future that providers of online platforms temporarily suspend the provision of their services to users who “frequently and obviously provide illegal content”. Those who violate this could be in a position of guarantor due to endangering, unlawful prior conduct. Then, due to the concretisation of monitoring obligations to individual users, the argument of lack of reasonableness would no longer be irrebuttable. This does not apply to offences that fall within the scope of freedom of expression, but it does apply if filtering out is already technologically quite reliable, as it is probably the case for terrorism, other violence and possibly also child pornography and copyright violations. In the case of failure to filter out content for special reasons, a knowledge requirement as in § 10 Telemedia Act does not seem to be mandatory. In cases of failure to subsequently delete already published contributions, a more offence- and platform-specific view of the existence of a guarantor’s position would be appropriate than has been the case up to now. In these cases, without a previous history, there is no question of an obligation to act as a guarantor, but only a guarantor position arising from control of a source of danger. In the literature, the social adequacy of platform operation and the principle of the users’ personal responsibility usually lead to a blanket rejection of guarantor status for all service providers.20 If there are votes against, the position of guarantor is also generally based on the fact that platform operators are the only ones capable of remedying unlawful situations and can therefore be expected to do so.21 If one applies the general principles from control of sources of danger to the position of guarantor, a differentiated view seems to be appropriate. The standard is then whether it is “obvious” that the creation of a source of danger will lead to damage of legal interests.22 This can only be answered by a platform- and offence-specific consideration. Social networks, for example, do not typically raise the danger that child pornographic content will be disseminated on them. The function of two-way communication that characterises them is not important for the offence. In the case of punishable fake news and hate speech, one could see things differently if one assumes a structural contribution of platform functionality to the brutalisation and distortion of discourse. A guarantor position of social networks for the deletion of posts that raise the issue of criminal liability, e. g. for pretending to have committed a crime or for insulting someone, could therefore be constructed. The fact that this does not also have to apply to child pornography is the 20

See above supra note. 13. Bosch, in: Schönke/Schröder, StGB, § 13 para. 44; Ceffinato, JuS 2017, p. 404. 22 Zieschang, GA 2020, p. 65; generally Gaede, in: Kindhäuser/Neumann/Paeffgen (eds.), NK-StGB, § 13 para. 46. 21

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consequence of the separation of the actual possibility of action and the legal attribution of responsibility. Otherwise, two preconditions for the criminal liability for omission would be obscured: One is the physically real possibility of avoiding damage – the guarantor position is the other.23 Depending on the platform structure, the result could be different and guarantor status could exist for pornography or copyright offences, for example, but not for insults. A guarantor position that refers to the deletion of all punishable content would have to be laid down in law. In this case of criminal liability, only due to inactivity after publication, and without prior criminal user action, then the requirement of positive knowledge in § 10 Telemedia Act (TMG) seems in principle to be appropriate. In these cases, however, the objective requirement for criminal liability of the reasonableness of the deletion is missing. In all of this, there is the danger of overblocking, i. e. filtering out or deleting content that is legal. In any case, one can naturally think that platform operators do not exceed the threshold for criminal liability. 5. Supervisor Responsibility? a) Imbalance of Advantage and Responsibility A very large fundamental problem in terms of criminal law also lies in the fact that in the case of large platforms demands for criminal responsibility, one primarily encounters content auditors to whom guarantor positions are delegated. Responsibility for the dangers of the business model is thus delegated downwards, while the benefits remain at a higher level, usually with the company itself. It should therefore also be discussed whether management levels should not also be held responsible in cases of platform crime. b) Breach of Duty of the Company Organisation as a Connecting Factor Due to the principle of culpability, this would at least require that the company organisation has been designed negligently so that criminal offences by employees are encouraged. c) Inappropriateness of the Instruments of the General Part in the Case of Negligence The imbalance of advantage and responsibility in the operation of online platforms would be almost impossible to deal with, at least under current German crim23 Similarly, Zieschang, GA 2020, p. 63, with regard to the requirement of justification of the provider’s possible authorship that goes beyond a mere reference to the possibility of deletion.

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inal law. Indirect perpetration by means of organisational dominance, for example, makes it possible for the person behind the scenes to be held responsible even without criminal liability deficit on the part of the front man.24 However, it presupposes that the latter has given at least implied instructions with regard to the offences committed.25 Even if the company organisation may promote criminal offences, superiors will usually not show sufficiently definite intent with regard to individual contents.26 For this reason, even employer’s liability as a special form of injunctive criminal liability only rarely offers a way out. In this respect, one could think above all of the criminal liability of the compliance officers required by the DSA in the future as participants in the actions of the content reviewers. However, because participation also requires intent, it does not apply if managers only negligently violate organisational duties.27 One can leave it at that with the reference to lower criminal liability for negligent actions. In the special part of the criminal law, however, there are certainly areas of offences in which even the negligent promotion of criminal offences by subordinates incurs criminal liability. d) Fit of the Principles of Press Criminal Law and (Largely) Independent Liability for Organisational Deficiencies? § 41 Wehrstrafgesetz, for example, punishes the superior for at least a reckless violation of a supervisory duty if this negligently causes serious consequences. The press criminal law of the Federal States goes beyond this. According to § 20 (2)(2) of the Baden-Württemberg Press Act, a publisher is already liable if he breaches his duty of supervision through simple negligence and, based on that, an unlawful act is committed by means of printed matter. A possible transfer of the idea of the organisational violation as a criminal law connecting factor for superior responsibility in the area of platform operation seems problematic, on the one hand, because due to the brisk activity of the European legislator, over-regulation could threaten there at some point anyway. With regard to the principle of personal responsibility, one should also not disregard the fact that the content examiners can decide in favour of the law. The management level, for its part, is likely to be so far removed from the violation of legal interests that an individual attribution of liability, which is also necessary in the case of negligence offences, is often ruled out.

24

On this legal concept, see for example Heine/Weißer, in: Schönke/Schröder, StGB, § 25 marginal no. 36; Joecks/Scheinfeld, in: Erb/Schäfer (eds.), Münchener Kommentar StGB, § 25 para. 141. 25 Bülte, Vorgesetztenverantwortlichkeit im Strafrecht, p. 126 et seq. 26 Bülte, Vorgesetztenverantwortlichkeit im Strafrecht, p. 95 et seq. 27 Bülte, Vorgesetztenverantwortlichkeit im Strafrecht, p. 41.

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Press criminal law shows that one can nevertheless examine a special superior responsibility in platform operation. This is because there the offence of reference committed by means of printed matter is usually only designed as an objective condition of criminal liability. The editor or publisher does not even have to have acted negligently with regard to the offence made possible by his negligent breach of duty. This is remarkable because press criminal law is still most similar to platform crime in the area of extended superior responsibility. The massive expansion of criminal law is based on the dangerousness of the commission of the offence of reference by means of the dissemination of a printed materials. According to Kühl, the modern press has a “tremendous intellectual impact”.28 Through its broad impact, it profoundly influences public opinion. This power to shape opinion is accompanied by such a considerable potential danger that special treatment under criminal law is necessary.29 The reason for liability there is therefore the possible potentiation of the unlawful content. At least with regard to the commission of communication offences, the situation is similar for online platforms. This is countered in press law only by indirect superior liability: the superior is not liable for the individual offence, but for his or her own breach of duty.30 Such liability for deficiencies in one’s own organisation in platform operation could also be embedded in the idea that the mere classification of user content as proprietary or foreign for the host provider is possibly too sweeping. This does not rule out the possibility that differences will prevail in the end. For even a possible criminal liability of content reviewers first requires criminal conduct on the part of the platform user. In this respect, one is even dealing with double indirectness of a possible breaches of due diligence by executives for unlawful actions. If one were to reject the responsibility of superiors, one would either have to look for a solution in the discussion about the criminal law of associations or realise that the law of administrative offences, with the option of fining legal persons, also provides a sharp sword. However, all of this at least shows that the legal design of an appropriate way of dealing with platform crime continues to be a challenge on which criminal law should also take a stand.

Bibliography Achenbach, Hans/Ransiek, Andreas/Rönnau, Thomas (eds.): Handbuch Wirtschaftsstrafrecht, 5th edition, Heidelberg 2019. Bülte, Jens: Vorgesetztenverantwortlichkeit im Strafrecht, Baden-Baden 2015. 28

Kühl, in: Sedelmeier/Burkhardt (eds.), LPG, § 20 para. 1 et seq. Kühl, in: Sedelmeier/Burkhardt (eds.), LPG, § 20 para. 1 et seq. 30 Kühl, in: Sedelmeier/Burkhardt (eds.), LPG, § 20 para. 1 et seq. 29

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Ceffinato, Tobias: Die strafrechtliche Verantwortlichkeit von Internetplattformbetreibern, JuS 2017, pp. 403 – 408. Erb, Volker/Schäfer, Jürgen (eds.): Münchener Kommentar zum Strafgesetzbuch, Bd. 1: §§ 1 – 37, 4th edition, Munich 2020. Erb, Volker/Schäfer, Jürgen (eds.): Münchener Kommentar zum Strafgesetzbuch, Bd. 7 (future Bd. 8) Nebenstrafrecht II, 3rd edition, Munich 2019. Greco, Luis: Strafbarkeit des Unterhaltens einer Handels- und Diskussionsplattform insbesondere im sog. Darknet, ZIS 2019, pp. 435 – 450. Heintschel-Heinegg, Bernd von (ed.): Beck’scher Online-Kommentar StGB, 56th edition, Munich 2023. Hilgendorf, Eric/Kusche, Carsten/Valerius, Brian: Computer- und Internetstrafrecht, 3rd edition, Berlin 2023. Hoven, Elisa: Zur Strafbarkeit von Fake News – de lege lata und de lege ferenda, ZStW 129, 2017, pp. 718 – 744. Hoven, Elisa/Witting, Alexandra: Das Beleidigungsunrecht im digitalen Zeitalter, NJW 2021, pp. 2397 – 2401. Kindhäuser, Urs/Neumann, Ulfrid/Paeffgen, Hans-Ullrich (eds.): Strafgesetzbuch, Bd. 1: §§ 1 – 79b, 5th edition, Baden-Baden 2017. Krischker, Sven: “Gefällt mir”, “Geteilt”, “Beleidigt”? – Die Internetbeleidigung in sozialen Netzwerken, JA 2013, pp. 488 – 493. Kühl, Kristian: § 20 LPG Strafrechtliche Verantwortlichkeit. Presse-Inhaltsdelikte, in: Sedelmeier, Klaus/Burkhardt, Emanuel H. (eds.), Presserecht, 6th edition, Munich 2015. Reinbacher, Tobias: Die “Weiterverbreitung” von Hate Speech in sozialen Medien – Fragen der Beteiligung an einer gemäß § 185 StGB strafbaren Beleidigung, JZ 2020, pp. 558 – 563. Sängerlaub, Alexander/Meier, Miriam/Rühl, Wolf-Dieter: Fakten statt Fakes, Berlin 2018. Schönke, Adolf/Schröder, Horst: Strafgesetzbuch Kommentar, 30th edition, Munich 2019. Schünemann, Bernd: Gefährden Fake News die Demokratie, wächst aber im Strafrecht das Rettende auch?, GA 2019, pp. 620 – 640. Steinebach, Martin/Bader, Katharina/Rinsdorf, Lars/Krämer, Nicole/Roßnagel, Alexander (eds.): Desinformation aufdecken und bekämpfen, Baden-Baden 2020. Valerius, Brian: Wahlstrafrecht und soziale Medien, Festschrift für Urs Kindhäuser, BadenBaden 2019, pp. 827 – 840. Zieschang, Frank: Zur strafrechtlichen Verantwortlichkeit eines Host-Providers für rechtswidrige Inhalte, GA 2020, pp. 57 – 69.

Towards Methodological Experimentalism in Digital Transformation Research By David Roth-Isigkeit*

I. The Dynamics of Digital Transformation Digital transformation will pose a monumental political challenge for the present decade and decades to come. The extent of this social change is often underestimated in public debate. It is already evident that increasing interaction with information technologies and the dependency that arises from that interaction is shifting lines of social conflict and thus paving the way for rapid social transformation. Current examples like the capacity explosion of the AI-chatbot ChatGPT show that in such a complex political setting, with the emergence of new technological developments, it is not easy to address these challenges from an academic perspective. What role can academic knowledge, with its lengthy cycles of reception, play in the adverse setting of an ever-accelerating transformation? And how do research agendas need to be adapted when knowledge about what is technologically possible becomes unreliable? In this short contribution, that should neither be taken as an academic article nor as a political intervention, I would like to share some observations with the hope that they might be of interest for the readers. 1. Digital Transformation What is the process commonly described as digital transformation? First, “transformation” processes, as such, are not an extraordinary but rather a normal state within society. Society is in a constant state of flux, with technology taking a determining role. To find out what is so special about the current transformation, we would need to look for overarching paradigms which represent this change. If we speak of globalisation, for example, as a transformation process in world society, we identify the increasing integration of the world through trade and the associated decrease in the political importance of nation states and their borders. This reduction to a specific paradigm allows for a simplification of the description of change in a complex system such as society. In this context, by speaking of digital transformation, we attempt to * Prof. Dr. David Roth-Isigkeit holds the Chair of Public Law, in particular the Law of Digitalization at the University of Speyer.

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describe and isolate the influence that the capacity expansion of information technologies has on processes of social change. However, a description of the historical development isolating technological factors remains incomplete. The industrial revolution in the second half of the 18th century, which continued over the course of the 19th century, was not triggered by the development of the mechanical loom and the steam engine in isolation, but rather was integrated into a complex macroclimate of societal preconditions such as the ideological erosion of the agrarian system of economic production.1 Similarly, during the process of digital transformation, the seeds of technological development fall on the fertile soil of the global political (dis-)order. The success of digital companies is taking root in a global political climate characterised by social inequality and a weakening of international politics caused by great power thinking. The in-between of political and economic frames that becomes apparent in the absence of a unified frame of taxation and redistribution offers private actors unprecedented opportunities to accumulate wealth. Yet, this incorporation into the general climate of world society should not distract from the fact that technological development is a decisive factor in the current transformation. Information technologies, i. e. the ability to transfer, store and process data, are changing essential elements of our social coexistence in various areas. Crucial factors in that change include the development of machine intelligence, the collection and use of big data, and global networking, which serve as basic technologies much like the steam engine which could be used almost universally by adapting it to various social subtasks. In this universality of development of a new technological platform, and its explosive adaptation to new possibilities of use, and hence also possibilities of added value, lies the depth of the current dynamic of social change. In its focus on artificial intelligence, social discussion is misguided. Advances in the area of machine learning cannot necessarily be considered ‘intelligent’, i. e. as having independent problem-solving capacities. They rely on the combination of large volumes of data with high computing power. By constantly regrouping the underlying data, machine learning methods are capable of recognising small patterns which are otherwise incomprehensible to the human observer. Using this analysis technique, for example, under certain conditions a radiologically generated image can be read by algorithms more precisely and completely than by a radiologist. The boom in artificial intelligence can be explained, among other things, by the fact that both raw data collection and the computing capacity required for analysis have experienced exponential growth in recent years. The interaction of these factors also creates important synergy effects. Through global networking, and, in particular the widespread connection of large parts of the world’s population to the Internet, significant volumes of raw data on human behaviour can now be collected. This 1 Braudel, Sozialgeschichte des 15. – 18. Jahrhunderts. Aufbruch zur Weltwirtschaft, p. 630.

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has led to the creation of a new concept: big data refers to huge amounts of data which can no longer be meaningfully analysed and systemised manually but can only be processed automatically. The computing capacity required for algorithmic processing is provided, among other things, by exponentially increasing computer power. The decisive factor there is not that the computing speed of integrated circuits doubles every one to two years, according to Moore’s law,2 which has been empirically confirmed for about 60 years, but rather that the real transformative effect goes hand in hand with falling prices for the general availability of computing capacity.3 The performance of super computers costing millions of dollars a few years ago can now be found in simple smartphones. The associated changes possess a transformative (and for the nation state eroding) effect as they spread over the entire breadth of global society, crossing territorial borders. Access to the Internet, and thus also to large computing capacity via cloud computing, is possible almost everywhere via the spread of mobile Internet. In 2019, for the first time, more than 4 billion people, i. e. more than half the world’s population, used the Internet.4 In terms of social impact, the successful connection of people to the stream of digitalisation seems even more important than the development of advanced artificial intelligence. Only the widespread use of technology makes possible the profound changes in social life described here. In the service sector, as one of the most digitalised commercial areas, we witness a process that might be described using Polanyi’s term of profound global “commodification”.5 For example, the crowdfunding marketplace MTurk (Mechanical Turk), launched by Amazon, is a platform on which individuals worldwide can perform certain standardised tasks (microtasks) such as data verification or classification for very small amounts of money.6 Digital transformation, in the sense of the approach proposed here, describes the type of social change that is triggered by the increasing interaction of humans with information technologies. This development triggers a transformative effect on society rather than an adaptive one, because it changes the lines along which social conflict develops. The individual, whose integrity was protected by involvement in participatory systems and the guarantee of privacy, is turned from a political actor into a mere user of the digital infrastructure. What in the traditional nation state order were previously conflicts over natural resources are now conflicts over data. Traditional warfare is being replaced by cyber war. Territorial sovereignty is becoming conflict 2

Moore, Cramming more components onto integrated circuits, Electronics 38 (1965). Exponential Growth of Computing for 110 Years, https://www.kurzweilai.net/exponen tial-growth-of-computing#!prettyPhot (accessed at 27. 3. 2023). 4 World internet usage and population statistics 2019 mid-year estimates, https://www. internetworldstats.com/stats.htm (accessed at 27. 3. 2023). 5 Polanyi, The Great Transformation: The Political and Economic Origins of Our Time, p. 71 et seq. 6 Amazon Mechanical Turk, https://www.mturk.com (accessed at 27. 3. 2023). 3

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over bandwidth and infrastructure. It is by no means certain that nation states are still the most powerful players in these conflicts, but rather that those entities prevail, which have the best access and information in the global data network. 2. Technological Transformation as an Acceleration Process The transformation of the traditional order is taking place at a faster rate than one could conclude from mere observation. A crucial feature in social change determined by technology is that it inherently accelerates. This acceleration is responsible for the centrifugal forces that act on the current regulatory structures and could lead to their erosion. If, as stated above, digitalisation and globalisation are the drivers of social change, then the acceleration of social change can be extrapolated from exponential increases in technological progress. Crucial for rapid growth is the function that Ray Kurzweil referred to as the law of accelerating returns.7 Technological development forms the basis for enabling further technological development. In the field of the development of computational processing speed, this hypothesis is reflected in Moore’s law referred to above. The associated exponential growth in the computing capacity of processors forms the basis of digital transformation. Essential to Moore’s law is the falling marginal cost of computing power. Statistically speaking, the number of arithmetic operations to be performed for one dollar has increased tenfold over a period of four years. These decreasing costs, in particular, have contributed to the increased general availability of technology. At the same time, the availability of computing speed, the number of network participants, and thus the potentially availability network connections has grown exponentially. As the Oxford philosopher Floridi suggested, standardisation of the information medium also means that frictions in communication between agents on the network is disappearing: “digits communicate effortlessly with digits”.8 Network effects also contribute to the depth of digital change. If we accept this hypothesis of the increasing influence of technology, it becomes clear that, from a macro perspective, processes of social change will accelerate. If we look back at the early history of Homo sapiens and compare it with the last 2000 years of human development, this exponential development becomes particularly clear. If we were able to travel 500 years back in a time machine, we would find it very difficult to get around in the world in which we arrived, which was shaped in 1519 by the Spanish occupation of Mexico by Cortés and Magellan’s departure from Portugal to circumnavigate the world. If a person who was born a few centuries BCE travelled 500 years further back in time, the experience of the world would marginally change but the essential living conditions of agricultural society would mostly have seemed unchanged. 7 8

Kurzweil, The Law of Accelerating Returns. Floridi, The Fourth Revolution: How the Infosphere is Reshaping Human Reality, p. 42.

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Innovation plays a crucial role in progress. Upon closer inspection, however, it does not take place linearly but rather on the basis of key innovations that allow technological leaps (akin to so-called technology nodes in the semiconductor industry).9 It is thus often suggested that the time of the traditional transistor processor has passed. The speed of Moore’s law can no longer be maintained as such since speed improvements are now largely achieved by parallelisation, that is, processors with multiple cores. Even the development of computer technology requires basic innovation, which is to be achieved with progress, for example in the field of quantum computers.10 This basic innovation can then provide technological leaps that are necessary for the transformation process. At the end of 2019, Google introduced the 72-bit quantum computer called Bristlecone, a first functional model that is so superior to conventional computers in performing certain tasks in such a way that quantum supremacy in application development was seen to have been achieved.11 Conversely, this basic innovation will again result in unpredictable leaps in development in terms of cost and the application of the technology. The decisive factor in this development is whether the basic technology can be used for social integration. Particularly due to the technical complexity of the quantum computer, it remains to be seen when this level of development will be reached. 3. Dynamics, Trans-Nationalisation and Uncontrollability: Reasons for the Loss of Social Control For a large number of reasons, increases in technological development go hand in hand with the loss of social control. Effective legislation first of all requires that the object and technology to be regulated can be described with sufficient accuracy. Due to the speed of technological advancement, isolated functional descriptions hardly seem possible. Metaphorically speaking, this means that while previous regulation was directed against static targets, we are now attempting to regulate moving targets, which are much more difficult to hit. This is particularly due to the merging of short and long term developmental processes. If we talk about the development of autonomous vehicles, increasing automation in the labour market or the use of intelligent algorithms in medical technology, by the time the legislature addresses ethical and legal guidelines for their use, the wheel of technological progress has meanwhile moved on. If we debate the use of primitive 9 Used for example in the field of information technology, cf. Koh/Magee, A functional approach for studying technological progress: Application to information technology, Technological Forecasting and Social Change 73 (2006), available at: https://www.sciencedirect. com/science/article/abs/pii/S0040162506001181?via%3Dihub (accessed at 21. 3. 2023). 10 For further details see Grumbling/Horowitz, Quantum Computing: Progress and Prospects, National Academies of Sciences, Engineering, and Medicine, available at: https://doi. org/10.17226/25196 (accessed at 21. 3. 2023). 11 Google AI Quantum, https://quantumai.google (accessed at 27. 3. 2023).

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communication robots in nursing by which dementia patients could be helped to maintain their intellectual abilities through constant communication, and the legislature lays down guidelines, for example, on the possible content of such discussions and the usability of the data obtained, it can be assumed that technical development will overtake this regulatory process. In other words, whenever the law comes into effect, there is already a gap between the law and the new technological advances in the functioning of these robots achieved in the interim (i. e. the possibility of physical interaction) which in turn raises new ethical and legal questions. Not surprisingly, laws on digitalisation mostly work using a risk-based approach that leaves the regulatory content largely open. Yet, this makes a socio-democratic regulation of technology on the basis of planning and forward-looking action impossible. Ethical and legal decisions must be removed from the sluggish democratic process and handed to expert committees instead. Control by tech-savvy expert groups is, however, precisely the accompaniment of technical advancement which is not inclined to address the critical question: which developments do we accept and support as a society and which do we reject as potentially dehumanising? Especially with regards to the fact that the exponential growth of technology has no logical goal, this question cannot be ignored. We must get used to the idea that anything is potentially possible and feasible. In this world of unlimited possibilities, the race for more and more technological accompaniment of human existence has to give way to development based on sound judgement that keeps the basics of humanity in view.12 A second aspect threatening the loss of social controllability is the difficulty in holding actors responsible. Global technological issues have become transnational issues.13 On the one hand, these issues are characterised by the fact that they cannot be regulated within sovereign nation states. National lawmakers are not the appropriate legislators for the formulation of standards for Internet law. For technological developments that are linked to physical objects, national legislation can still be maintained, albeit with some difficulties, such as in standards for autonomous vehicles. However, if we leave the realm of developments that have no physical relationship with the end customer and can be operated via servers from anywhere in the world, national legislatures become toothless. Transnational issues are, however, characterised by the fact that private companies are becoming norm entrepreneurs. On the one hand, the commitment to selfset standards by multinational corporations sounds like progress. However, it must be taken into account that there is a democratic deficit lurking behind voluntary self-legislation. Private companies, which are the main drivers of technological innovation, can flexibly shape both the framework for technological development and determine their own tax burden by choosing the legal system they want to face. This 12 Nida-Rümelin/Weidenfeld, Digitaler Humanismus: Eine Ethik für das Zeitalter der Künstlichen Intelligenz. 13 Roth-Isigkeit, The Plurality Trilemma: A Geometry of Global Legal Thought.

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deliberate choice of the most advantageous jurisdiction is called forum shopping.14 Democratic communities are thus denied access to gains in prosperity and to control of technological development. This is particularly problematic as democratic (election) processes are themselves being threatened by technological advances, for example by the automated influence social networks have on election outcomes. Here too, it is important to take into account changed power and conflict constellations. This fluidity of transnational technology which increasingly eludes the traditional framework typically defined by inertia and national borders, risks entirely evading democratic communities. The potential for unrestricted panel selection poses a threat of a so-called regulatory race to the bottom, ultimately leading to the complete loss of democratic engagement. A central question must therefore be to find ways to strengthen the role of the community in order not to let democracy become impaired in the face of increasing private regulatory power. In 1995 Niklas Luhmann prophetically characterised that this nation state order was a historical anomaly.15 The dominant role of technology in society threatens to erode this frame. A final aspect of the lack of regulatory access to democratic communities are the largely unexplained risks of research and development in artificial intelligence. These risks are related to the inherent uncontrollability of the technology, which is reflected at the micro level by the so-called black box problem, and on the application level by the development of autonomous and no longer controllable weapon systems, and, finally, also from the perspective of the uncertain prospects of a possible general artificial intelligence that would exceed the level of human intelligence.16 In the long run, the costs of such risks would have to be passed on from democratic communities, at least internally, to those who benefit from the development.

II. Methodological Challenges The methodological challenge for the scientific and political support of digital transformation is first and foremost to correctly interpret the framework conditions of the dynamic and internal acceleration of technological change. The second step is to derive practical plans for action from these framework conditions in order for social actors to become proactive rather than remaining reactive. The academic environment has to adapt to these conditions in order to be able to provide meaningful knowledge.

14

Bell, Forum Shopping and Venue in Transnational Litigation. Luhmann, Das Recht der Gesellschaft, p. 586. 16 Bostrom, Superintelligence: Paths, Dangers, Strategies.

15

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1. The Time Factor: The Necessity of a Procedural Approach From a methodological point of view, the temporal perspective is most important for the legal support of the digital transformation. Traditional democratic legislative processes take at least a few years from conceptually defining issues and objectives to the drafting of legislation to be enacted by Parliament. If we try to deal with the regulatory problems raised here in the traditional way, regulatory objectives would not only be overlooked, but legal uncertainty would also be increased with regard to the actual complexity of the questions involved. On the question of how we should react societally to advances in the field of autonomous driving or medical technology, legal regimens enacted into legislation will become obsolete quickly due to advancements in technology. The pace of this process will continue to intensify due to the increasing speed of development. In order to reverse this imbalance in power and to enable society to act at least to a limited extent proactively, we need to make projections about medium and long term developments in technology. It is crucial to think about the effects of legislation before a technology is ultimately introduced. Proactive action thus requires a reversal of the traditional relationship between society and law. It shifts the time for developing regulatory models so that they run in parallel with technological development, even if new technologies are not yet being realised in practice. What is required is to devise scenarios for specific paths of technological development by means of a socio-technical approach of thinking. How will the development of the quantum computer affect technological advances that can impact on society? This depends on detailed questions about technological components, such as cost, practical usability and uptake. Which obstacles have to be overcome on the way to its universal adoption? How likely are the different paths of development? What effects will specific technologies have on societal processes (in the field of quantum computers, for example, the need to improve encryption technology)? What areas of application can be considered for super intelligent machines? Which kinds of legislation would need to be drafted for these different scenarios? Answering these questions requires an interdisciplinary approach with perspectives both from technology and society. 2. Clarification and Consolidation of Disciplinary Perspectives from the Natural and Social Sciences In order to realise this vision of technological processing and the extent of possible opportunities, the creation of interdisciplinary social thought is essential. Although knowledge formation in academic disciplines has the advantage of linguistic unity which enables them to sufficiently immerse themselves in specific technological questions, they ultimately fail to translate their findings into general social discourse. There is therefore a lack of a suitable scientific language which brings natural science and social science discourses together. This translates into an isolation of the socio-

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legal perspective from its technical feasibility, which has a devastating effect on the actual usability and realism of the literature. Discourse is either devoted to a distant utopian future, the occurrence of which, in the form specifically described, often seems highly improbable. Alternatively, at the time of publication, it runs the risk of lagging behind the wheel of progress which by then would have moved even further forward. If we ask ourselves, for example, whether and which rights intelligent machines should have, this of course cannot be isolated from the different paths of possible technological development. From a legal perspective, these fundamental questions can only be dealt with doctrinally in a second step. Primarily, both in terms of the technological components and the legal infrastructure, including its regulatory framework, a comprehensive fundamental understanding is required which does not distract attention from central social questions. 3. Legislation on Technology The goal of connecting technological development and social science is to regain the upper hand of society over technology within the context of protecting and supporting the democratic process. This ability to act politically (i. e. agency) is a necessary precondition for finding an effective community response to technology that is not limited to plugging the largest holes in a slowly sinking ship. The perception of a more active role for the public in responding to technological developments is therefore not only a political necessity, but also a democratic obligation. The government and its administration must be able to regain the capacity to act political against transnationally diffuse private entities. In the last 20 years, we have seen how public influence on global legislative processes has continued to wane.17 Prosperity gains have not been evenly distributed, as private actors have been successful in using the spaces and forums outside democratic statehood to ultimately play national states off against one another. This is where transnational companies have to be made responsible. In an increasingly denationalised world, this responsibility is not a matter of benevolence, but rather a political and legal obligation. Translated into legal analysis, this means drawing attention away from static hierarchical analysis of the legal system toward dynamic interaction with social processes. If we see the law as a static, society-shaping superstructure, it will not be possible to catch and cushion the impact of technological change. Doctrinally, this dynamic approach translates into interpreting constitutional frameworks as living instruments. Interpreted in this way, they would show structural openness to fundamental change, and, on the other hand, strongly advocate for the preservation of the communication-based conception of democratic politics. 17 See Habermas, Strukturwandel der Öffentlichkeit: Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft.

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What is therefore required is a new political model that can restore the balance of forces between public and private power. This form of political tactics and techniques, which is attributed to the teachings of Niccoló Machiavelli and Thomas Hobbes, recognises that system-transcending actions may be necessary to adapt the systemic configuration of world society to the new forms of political action. There appears to be little scope for political models beyond nation state decision making without challenging current power and wealth distribution patterns.

III. The Agenda of an Interdisciplinary Approach These considerations are reflected in the following observations, that constitute a sort of “agenda” for digital transformation research: 1. a proactive technology policy that sets for itself the task of indicating the direction of society at an early stage, 2. ensuring that decisions about technological progress, and its development, are linked to democratic processes, 3. a decidedly global approach that overcomes restrictions stemming from nation states in order to find solutions to digital questions. 1. Towards a Proactive Technology Policy It is important to use technology with foresight. Other examples of late regulatory intervention, such as those related to climate change or controlling of the spread of nuclear weapons, show that the dynamics of acceleration of certain technological developments reach points at which they can no longer be controlled by legislation. In the absence of legislation, similar risks are to be expected from the digital transformation, particularly from the widespread use of artificial intelligence methodologies. The questions associated with the use of digital technologies in society are explicitly political. The current discussion about the ‘ethics’ of artificial intelligence distracts from this question. If we talk about the ethics of artificial intelligence, we are looking for general principles that apply to the use of technology. These general principles are by no means natural constants, but rather are political questions as such. What defines successful human life during the process of digitalisation is a lead question for contemporary political thought. The implementation of social integration, on the other hand, is a legal question dealing with a redefinition of constitutional thought. How do our historical ideas fit together with new social situations? How can we adapt the constitutional framework without endangering the foundations of the democratic social order? Proactive politics in this sense require an increase in regulatory speed and reactivity in order to overcome the inertia of the democratic legislative process. Political communities should be aware of the scope they have at their disposal. At the same time, this kind of model also gives rise to responsibility not to leave the development of society to technocracy. We can and we must open the dialogue about what kind of society we want to live in.

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2. Democratisation of Technological Advancements The key term for regaining of social control is the democratisation of technological progress. Profound changes, such as those associated with digital transformation, require democratic control and decision making. The decoupling of social opinion making from technological self-determination or ‘digital sovereignty’, harbours the danger that the switchgear of the internal organisation will henceforth remain closed to social knowledge. Luciano Floridi compared this danger with the idea of a piano nobile in the Renaissance Italy, which had once been supposed to be the social centre of a house, but was in fact only used for representation purposes, while the actual functioning of the mechanisms in the servant’s ‘machine room’ remained hidden from the user.18 In the same way, the services we accept from privately developed algorithmic control may relieve us of tasks and simplify our everyday lives, precisely by releasing us of our understanding of how they work. In both cases, the resulting distorted perception of reality would pose a threat to democratic politics. Private actors are ready to provide services on tasks that have traditionally been assigned to the public sector. We see this in supposedly non-sensitive areas, such as the privatisation of municipal service providers, but also in the allocation of network infrastructures or the organisation of cyber security. Here too, we must recognise the superior know-how of service providers and disregard the loss of public function in some individual cases. In a democracy, however, the term ‘citizen’ refers to more than simply a user of an infrastructure. 3. A Global Approach The crisis of democratic self-determination with regard to new technologies is also due to the excessive demands placed on national politics, which is increasingly confronted with complexity in the global setting beyond its grasp. As a result of its global nature, technology policy can only be worked out on a national and global basis. Technology cannot be thought of as a phenomenon within national categories. Worldwide networking, in particular, is largely independent of territorial boundaries. At the same time, sovereignty continues to play a major role, for example, through the physical control of nodes and high-speed cables. The result is a hybrid space that partially and in certain aspects transcends territoriality, but in which historical carry overs of national sovereignty continue to have an impact. This also applies to the actors involved. Central regulatory authorities are public while the rules and agendas are set normatively by private actors, for example through corporate ethics or research and development programmes. In order for the democratisation of technological progress to succeed, strategies for dealing with this global patchwork are re-

18 Floridi, The Fourth Revolution: How the Infosphere is Reshaping Human Reality, pp. 37 – 42.

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quired. How can collective self-determination and universal and coherent decision making prevail under circumstances of plurality?

IV. Conclusion Digital transformation research poses significant challenges for academic knowledge. The relatively stable research environment of traditional academic disciplines is often not suited to generating the knowledge needed to support a democratic social transformation through digital means. Support for experimental methodologies that open up new ways of thinking about the digital transformation is therefore required. Bibliography Bell, Andrew S.: Forum Shopping and Venue in Transnational Litigation, Oxford Private International Law Series, 1st edition, Oxford 2003. Bostrom, Nick: “Superintelligence: Paths, Dangers, Strategies”, 1st edition, Oxford 2014. Braudel, Fernand: Sozialgeschichte des 15. – 18. Jahrhunderts. Aufbruch zur Weltwirtschaft, 3rd edition, Munich 1986. Floridi, Luciano: The Fourth Revolution: How the Infosphere is Reshaping Human Reality, 1st edition, Oxford 2014. Grumbling, Emily/Horowitz, Mark: Quantum Computing: Progress and Prospects. National Academies of Sciences, Engineering, and Medicine, Washington, D.C. 2019, available at: https://doi.org/10.17226/25196 (accessed at 27. 3. 2023). Habermas, Jürgen: Strukturwandel der Öffentlichkeit: Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft, Frankfurt a. M. 1962. Koh, Heebyung/Magee, Christopher L.: A functional approach for studying technological progress: Application to information technology, Technological Forecasting and Social Change Vol. 73 Issue 9, 2006, pp. 1061 – 1083, available at: https://www.sciencedirect.com/science/ article/abs/pii/S0040162506001181?via%3Dihub (accessed at 27. 3. 2023). Kurzweil, Raymond: The Law of Accelerating Returns, 2001, available at: https://www.kurzwei lai.net/the-law-of-accelerating-returns (accessed at 27. 3. 2023). Luhmann, Niklas: Das Recht der Gesellschaft, 1st edition, Frankfurt 1995. Moore, Gordon E.: Cramming more components onto integrated circuits, Electronics Vol. 38 No. 8, 1965, available at:https://www.intel.com/content/www/us/en/newsroom/home.html (accessed at 27. 3. 2023). Nida-Rümelin, Julian/Weidenfeld, Nathalie: Digitaler Humanismus: Eine Ethik fur das Zeitalter der Kunstlichen Intelligenz, 1st edition, Munich 2018. Polanyi, Karl: The Great Transformation: The Political and Economic Origins of Our Time, 3rd edition, Boston 2001, available at:https://inctpped.ie.ufrj.br/spiderweb/pdf_4/Great_ Transformation.pdf (accessed at 27. 3. 2023).

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Roth-Isigkeit, David: The Plurality Trilemma: A Geometry of Global Legal Thought, Basingstoke 2018.

The Sanctions Regime in EU Data Protection Law By Paul Vogel*

I. Introduction At the latest since the General Data Protection Regulation (GDPR) came into effect in May 2018, the topic of data protection has been on everyone’s lips. Due to more extensive organizational obligations on the part of data processors, strengthened rights of data subjects, and significantly higher sanctions for data protection violations, awareness of the protection of personal data has increasingly reached society in general and companies in particular. Most of all, the goal of fully harmonizing data protection law at the EU level has been achieved under GDPR, which has led to significantly more effective enforcement of data subjects’ rights. This has been achieved not only, but also, through a significantly tightened sanctions regime. It is unclear, however, whether this sanctions regime is at all suitable for effectively and efficiently enforcing the individual’s right to informational self-determination and his or her fundamental right to data protection guaranteed under primary law, or whether the new data protection law is not – as is sometimes claimed – a “paper tiger”.1 In this contribution, analysis is limited to sanctions in the narrow sense, i. e., administrative fines and criminal penalties2, and their suitability for enforcing fundamental individual (data protection) rights. Towards that end, the main principles of the new sanctions regime will first be outlined (section II.). I will then examine whether the GDPR sanctions regime is suitable for enforcing the right to informational self-determination, with particular reference to the sanctions practice to date of competent supervisory authorities (section III.). The article will conclude with a summary of the key findings (section IV.).

* Dr. Paul Vogel, LL.M. Eur. is a lawyer in Noerr’s Munich office and a member of the Data Tech & Telecom Practice Group. 1 For example, Körner, Papiertiger Datenschutzgrundverordnung, Tagesspiegel Background 27. 1. 2020; Schulzki-Haddouti, Papiertiger – Kaum Strafen für Verstöße gegen Datenschutzvorschriften, c’t 2016, p. 162. 2 For terminology, see also Wolff, in: Schantz/Wolff, Das neue Datenschutzrecht, para. 1107.

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II. The Sanctions Regimes in German and EU Data Protection Law The Data Protection Directive,3 the legal instrument preceding GDPR, already stipulated the obligation of Member States to legislate sanctions for violations of the rules laid down therein and to take all measures necessary for their implementation. Similarly, in Art. 84 GDPR, the EU primarily transferred responsibility for criminal sanctions to the Member States;4 GDPR itself only contains direct provisions on fines (Art. 83 GDPR).5 In German law, before GDPR came into effect, violations of the provisions of data protection law6 were punishable as administrative offenses or criminal offenses. § 43 of the Federal Data Protection Act (BDSG) (old version) contained a catalog of fines up to E300,000, which could be imposed. However, this range of fines was rarely exhausted: In the practice of the supervisory authorities, fines were regularly imposed in the four-digit range only.7 If specific violations were committed intentionally, or alternatively for remuneration, i. e. with the intention of enrichment, or with the intention of causing damage, a prison sentence of up to two years or a fine could be imposed under § 44 BDSG (old version). 1. Addressees of Data Protection Law The addressees of data protection obligations, according to Art. 5(2) and 24 et seq. GDPR, are primarily “data controllers”.8 Since fines and criminal offenses relate to the violation of data controllers’ obligations, they are also regularly the addressees of sanctions. According to the legal definition in Art. 4 (7) GDPR, a “data controller” is the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of processing of personal data.

3 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ 1995 L 281, pp. 31 – 50. 4 Frenzel, in: Paal/Pauly (eds.), DSGVO/BDSG, Art. 84 GDPR para. 1. 5 v. Lewinski/Rüpke/Eckhardt, Datenschutzrecht, § 24 para. 1. 6 In Germany, data protection law was regulated in the Federal Data Protection Act (BDSG). The BDSG was completely revised when GDPR came into force and since then only contains those areas that were left to the regulatory jurisdiction of the Member States by the fully harmonizing GDPR. 7 Roßnagel/Geminn, Evaluation der Datenschutz-Grundverordnung aus Verbrauchersicht, p. 53. 8 In addition, data protection obligations apply to “data processors” (Art. 4 (8) GDPR), i.e persons who process personal data on behalf of data controllers.

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In practice, legal entities, associations of persons, and public authorities are regularly the addressees of the regulation as the responsible parties.9 The open wording of the definition shows that the legislature was not concerned with the legal personality of the addressees of the obligation; rather, in addition to companies, non-legal entities or other associations can also be data controllers within the meaning of the GDPR.10 The characteristic of being able to decide on the means and purposes of processing data distinguishes data controllers from processors of data (Art. 4 (8) and Art. 28 GDPR), who merely process data on behalf of and follow the instructions of data controllers.11 Since data processors also have obligations under data protection law, they can also be addressees of the sanctions regime under data protection law. The fact that under GDPR companies and legal entities can also be sanction addressees causes conflict with traditional German criminal law. The fundamental possibility of imposing fines on public authorities would also involve a paradigm shift under the German legal tradition.12 The fact that fines against public authorities are not common in every Member State has been recognized by the legislature. Hence, in Art. 83(7) GDPR it is left to the national legislatures to decide whether and to what extent fines can be imposed on public authorities and public bodies. Unsurprisingly, the German legislature decided in § 43(3) BDSG (new version) that no fines may be imposed on these norm addressees. After all, in a legal system that is committed to the legality of administration and has a differentiated system of supervision and instructions, as well as providing for the idea of official liability for violations, there is no compelling need to impose fines on public bodies.13 With regard to the sanctioning of legal persons, there is no comparable conflict situation, at least in the area of fines under Art. 83 GDPR. The imposition of fines on legal persons and associations of persons is not alien to German administrative offences law. In contrast to EU law, however, German law presupposes that the obligations subject to a fine first affect natural persons acting on behalf of legal persons or associations of persons – under EU law, legal persons in civil law can themselves directly commit administrative offenses.14

9

v. Lewinski/Rüpke/Eckhardt, Datenschutzrecht, § 24 para. 37. Petri, in: Simitis/Hornung/Spiecker called Döhmann (eds.), Datenschutzrecht, Art. 4 (7) GDPR para. 16: “functional understanding”. 11 Petri, in: Simitis/Hornung/Spiecker called Döhmann (eds.), Datenschutzrecht, Art. 4 (7) GDPR para. 20. 12 Frenzel, in: Paal/Pauly (eds.), DSGVO/BDSG, Art. 83 GDPR para. 28; Wolff, in: Schantz/Wolff, Das neue Datenschutzrecht, para. 1112. 13 Frenzel, in: Paal/Pauly (eds.), DSGVO/BDSG, Art. 83 GDPR para. 27. 14 Wolff, in: Schantz/Wolff, Das neue Datenschutzrecht, para. 1132. 10

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Only legal entities and associations of persons are liable for offences, not individual employees.15 While the draft bill of the revised BDSG still provided for the liability of the employees themselves, this was not implemented in the final version.16 The situation is different with regard to criminal offenses under data protection law: Although the addressees of data protection obligations are predominantly legal entities and associations of persons, as well as public authorities (see above), the perpetrators of criminal offenses under § 42(1) and (2) BDSG (new version) can only be natural persons; German law does not (yet) provide for the criminal liability of associations.17 In the context of criminal sanctions, norms focus on the persons acting.18 2. Administrative Fines under GDPR One of the key concerns of the data protection reform in 2018 was the introduction of stronger sanctions. Whereas under the old legal regime comparatively small fines could be imposed depending on the national regulations of the Member States (in Germany a maximum of E300,000, cf. § 43(3) BDSG old version), with the introduction of GDPR, the fine provisions have undergone a drastic increase in the size of fines available. Under Art. 83(4) GDPR, fines of up to E10,000,000, or, in the case of undertakings (if this value is higher), up to two percent of the previous year’s turnover are now possible, and in cases under Art. 83(5) and (6) GDPR, even up to E20,000,000 or (if this value is higher) four percent of the previous year’s turnover. Such high fines and, in particular, the orientation towards turnover in the case of infringements by companies have been imposed in EU antitrust law for quite some time, cf. for example Art. 23 of Regulation (EC) 1/2003.19 Under this provision, fines in the hundreds of millions of Euros have been imposed in cases of infringement of EU competition law as laid down in Art. 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).20

15

See also Holländer, in: Wolff/Brink (eds.), BeckOK-Datenschutzrecht, Art. 83 GDPR para. 8. 16 v. Lewinski/Rüpke/Eckhardt, Datenschutzrecht, § 24 para. 38; Holländer, in: Wolff/ Brink (eds.), BeckOK-Datenschutzrecht, Art. 83 GDPR para. 20. 17 For an overview of the various reform efforts and the legal policy discussion, see Korte, NZWiSt 2018, p. 393 et seq. 18 Cf. v. Lewinski/Rüpke/Eckhardt, Datenschutzrecht, § 24 para. 63. 19 Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ EC 2003, L 1, p. 1 et seq. 20 Cf. Faust/Spittka/Wybitul, ZD 2016, p. 120.

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a) Fining Criteria Under Art. 83(1) GDPR, the key requirement for the imposition of fines by data protection supervisory authorities is that the sanctions are “effective, proportionate and dissuasive in each individual case”. This so-called “minimum triad” of effectiveness, proportionality and dissuasiveness used in Art. 83(1) GDPR is based on the case law of the European Court of Justice (CJEU), which regularly requires these criteria be fulfilled for sanctions under EU law.21 A fine is effective if it induces both the individual processing entity and the general public to comply with data protection obligations (in the form of positive special and general prevention).22 It is dissuasive if, on the one hand, it prevents controllers or processors of data, who violated the obligation, from committing the offense again and, on the other hand, if it prevents the general public from committing data protection violations (negative special and general prevention).23 The criterion of proportionality is to be understood in conformity with EU law as it is also meant to protect the recipient of the sanction.24 Conversely, however, it also forms a minimum level for sanctions: If an infringement violates significant EU interests, but is only punished with a small fine, such fines also violate the principle of proportionality.25 The specific amounts of fines to be imposed in individual cases is determined under Art. 83 (2) GDPR. The criteria include, above all, generally applicable factors such as the type, severity and duration of violations, cooperation with the competent supervisory authority in investigating the breach of duty, the existence of previous breaches, financial benefits gained as a result of the breach, and the degree of fault. The question of whether fault is a requirement at all is disputed, as Art. 83(2)(b) GDPR only mentions the distinction between intent and negligence as a criterion for assessing the amounts of fines, without explicitly stipulating a fault requirement.26 21 Cf. CJEU judgment of 21. 09. 1989, C-68/88, para. 24; cf. Boehm, in: Simitis/Hornung/ Spiecker called Döhmann, (eds.), Datenschutzrecht, Art. 83 GDPR para. 18. 22 Boehm, in: Simitis/Hornung/Spiecker called Döhmann, (eds.), Datenschutzrecht, Art. 83 GDPR para. 19. 23 Boehm, in: Simitis/Hornung/Spiecker called Döhmann (eds.), Datenschutzrecht, Art. 83 GDPR para. 19. Generally on relative criminal purpose theories, which are based on the same considerations Rengier, Strafrecht AT, § 3 paras. 14 et seq.; Hilgendorf/Valerius, Strafrecht Allgemeiner Teil, § 1 para. 11. 24 Golla, in: Auernhammer/Eßer/Kramer/von Lewinski (eds.), DSGVO/BDSG, Art. 83 GDPR para. 12. 25 Hecker, European Criminal Law, chapter 7, para. 52; Boehm, in: Simitis/Hornung/ Spiecker called Döhmann (eds.), Datenschutzrecht, Art. 83 GDPR para. 21. While Nemitz, in: Ehmann/Selmayr (eds.), DSGVO/BDSG, Art. 83 GDPR para. 39 advocates that a fine of at least one percent of the annual turnover of companies with an annual turnover of more than 2 billion euros is regularly to be taken as a basis, this view is not compatible with the proportionality requirement due to its flat-rate nature, cf. also Holländer, in: Wolff/Brink (eds.), BeckOK-Datenschutzrecht, Art. 83 GDPR para. 23.1. 26 Wolff, in: Schantz/Wolff, Das neue Datenschutzrecht, para. 1130.

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Against the backdrop of the principle of culpability, which is not only an essential element of German constitutional identity,27 but also a general legal principle of EU law,28 sanctioning below the threshold of negligence can hardly be in conformity with the law.29 As a result, the requirement of fault will have to be read into the term “fine” as an inherent concept.30 It is not immediately clear from a reading of Art. 83 GDPR which definition of undertaking the legislature has used as a basis when stipulating that the fines for infringements committed by undertakings are to be assessed on the basis of annual turnover (up to two or four percent). Looking at the German language version of the GDPR, it would be conceivable and obvious to use the legal definition in Art. 4 (18) GDPR, according to which an undertaking is a natural and legal person “engaged in an economic activity, irrespective of its legal form”, whereby the definition includes partnerships as well as associations regularly engaged in commercial activities. This definition would be a small-scale definition of undertaking, which would not take the entire structure of a group of companies into account.31 Such assessment also results from the legal definition of the expression “group of undertakings” in Art. 4 (19) GDPR, which states that no “groups of undertakings” can be included under the term “enterprise”. However, two considerations speak against this understanding of the term: Firstly, the term “enterprise” is used in the English language version of the GDPR for the legal definition of Art. 4 (18) GDPR, whereas the word “undertaking” is used in Art. 83 GDPR; the use of the legal definition to fill out the term is obviously not intended there.32 Secondly, it is the express intention of the legislature as stated in recital 150 (3) GDPR to interpret the term “undertaking” in the context of fines under Art. 83 GDPR in the sense of the antitrust provisions of Art. 101, 102 TFEU.33 Although the antitrust concept of an undertaking is not legally defined, it is to be understood according to the established case law of the CJEU as “any entity engaged in an economic activity, regardless of its legal form and the way in which it is

27 German Constitutional Court (Bundesverfassungsgericht), decision of 15 December 2015, 2 BvR 2735/14. 28 Esser, in: Sieber/Satzger/v. Heintschel-Heinegg (eds.), Europäisches Strafrecht, § 55 para. 62. The principle of culpability can be derived at EU level from Art. 48(1), 49(3) CFR, cf. Golla, in: Auernhammer/Eßer/Kramer/von Lewinski (eds.), DSGVO/BDSG, Art. 83 GDPR para. 17. 29 v. Lewinski/Rüpke/Eckhardt, Datenschutzrecht, § 24 para. 42. 30 Wolff, in: Schantz/Wolff, Das neue Datenschutzrecht, para. 1130. CJEU General Attorney Campos Sánchez-Bordona generally advocated against a “strict liability” which would not require fault. However, it remains to be seen how the CJEU will decide in the matter (Deutsche Wohnen SE ./. Staatsanwaltschaft Berlin, C-807/21). 31 Wolff, in: Schantz/Wolff, Das neue Datenschutzrecht, para. 1121. 32 Faust/Spittka/Wybitul, ZD 2016, p. 123. 33 Faust/Spittka/Wybitul, ZD 2016, p. 123.

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financed”.34 Furthermore, the term “undertaking” in that sense is to be understood as an economic unit, even if the undertaking is legally formed by several natural or legal persons.35 It follows from this that a group consisting of several legally independent subsidiaries regularly forms an economic unit and is thus considered an enterprise according to antitrust law’s understanding of the term.36 If this understanding of the term is used to calculate fines, the sums involved can quickly become immense and can have drastic consequences, especially for individual subsidiaries.37 Although there are good arguments in favor of applying the antitrust law or functional concept of undertaking and, above all, an orientation towards the higher group standard creates the desired deterrent effect,38 the German language version of the GDPR speaks against such an interpretation. Notwithstanding the fact that the English language version of GDPR speaks against the use of the legal definition in Art. 4 (18) GDPR, the French and Italian language versions of Art. 83 GDPR also refer to GDPR’s own definition.39 Moreover, a legally non-binding recital is not capable of overriding the wording of the enacting terms of the Regulation, which are (at least in some language versions) unambiguous in this respect.40 If the legislature had wanted to use the antitrust concept as a basis, it would have had to explicitly apply this understanding in the binding text (i. e., in the articles of GDPR). Against the background of these considerations, there are good arguments in favor of not basing the calculation of fines for companies on the antitrust law concept of undertaking, but rather on that of Art. 4 (18) GDPR. The reference point for the relevant previous year’s turnover would thus be the respective economic unit, but not a potentially existing parent company.41 However, it cannot be ignored that the European Data Protection Board (EDPB), on the other hand, advocates the application of the (functional) concept of undertaking as used in antitrust law42 and that the practice of the supervisory authorities will be guided by that approach. 34 Cf. CJEU judgment of 14 December 2006, C-217/05, para. 40; CJEU judgment of 10 September 2009, C-97/08, para. 54. 35 CJEU judgment of 10 September 2009, C-97/08, para. 55. 36 Grünwald/Hackl, ZD 2017, p. 558. 37 Boehm, in: Simitis/Hornung/Spiecker called Döhmann (eds.), Datenschutzrecht, Art. 83 GDPR para. 40. 38 Boehm, in: Simitis/Hornung/Spiecker called Döhmann (eds.), Datenschutzrecht, Art. 83 GDPR para. 43. 39 Frenzel, in: Paal/Pauly (eds.), DSGVO/BDSG, Art. 83 GDPR para. 20; Eckhardt/Menz, DuD 2018, p. 141. 40 Faust/Spittka/Wybitul, ZD 2016, p. 124. 41 For a contrary view, cf. Boehm, in: Simitis/Hornung/Spiecker called Döhmann (eds.), Datenschutzrecht, Art. 83 GDPR para. 43. 42 European Data Protection Board, Guidelines 04/2022 on the calculation of administrative fines under the GDPR, paras. 118 et seq.

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b) Fines under Art. 83(4) – (6) GDPR The fines set out in Art. 83(4) – (6) GDPR punish violations of almost 50 different provisions of GDPR with sanctions.43 Violations under Art. 83(4) GDPR are punishable by the “lower” fine frame of up to E10,000,000 or, in the case of undertakings, up to two percent of the previous year’s turnover. The offenses listed there relate primarily to violations of organizational obligations of data controllers and processors under Chapter IV GDPR (Art. 24 et seq.).44 Among others, violations of the principles of privacy by design and privacy by default under Art. 25(1) and (2) GDPR are covered. Also sanctionable under Art. 83(4) GDPR are, inter alia, violations of the obligations to appoint a data protection officer under Art. 37 GDPR, to conduct a data protection impact assessment if mandated by Art. 35 GDPR, to cooperate with the data protection supervisory authority (Art. 31 GDPR) and – very relevant for practice45 – to ensure the security of data processing (Art. 32 GDPR). Violations of the obligations listed in Art. 83(5) and (6) GDPR can be sanctioned with the higher fine frame of up to E20,000,000 or four percent of the previous year’s turnover. In contrast to the catalog of fines in Art. 83(4), which tends to be oriented towards data controllers and processors, the sanctions under Art. 83(5) primarily concern special risks to the personal data of data subjects, i. e. they are more oriented towards the data subject.46 Of particular importance are the requirements in Art. 83(5)(a) and (b) GDPR. The former penalizes violations of the processing principles under Art. 5 and the central standard on the lawfulness of data processing under Art. 6, while the latter sanctions violations of data subjects’ rights under Art. 12 to 22 GDPR. Any processing of personal data without a sufficient legal basis is thus subject to the higher fine frame without restrictions. Compared to the previous law (§ 43(2)(1) BDSG old version), unlawful processing of personal data is therefore now subject to sanctions even if that data was generally accessible.47 In this regard, collisions with the principle of certainty are apparent: the result of the balancing of interests pursuant to Art. 6(1)(f) GDPR, as the legal basis for processing, is typically not sufficiently foreseeable in borderline cases for data controllers, the extent to which such a high 43

Golla, in: Auernhammer/Eßer/Kramer/von Lewinski (eds.), DSGVO/BDSG, Art. 83 GDPR para. 23. 44 According to Spindler, DB 2016, p. 947, these are “rather administrative duties”. 45 The first fine in Germany under the GDPR was imposed in 2018 in the amount of E20,000 on the operator of a chat platform that stored the data of its users in an unencrypted form, which was readily accessible after a hacker attack, see also Brink, ZD 2019, p. 141 et seq. and below. 46 Frenzel, in: Paal/Pauly (eds.), DSGVO/BDSG, Art. 83 GDPR paras. 22, 23. 47 Cf. Golla, in: Auernhammer/Eßer/Kramer/von Lewinski (eds.), DSGVO/BDSG, Art. 83 GDPR para. 30.

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potential for sanctions is justified under these circumstances appears questionable.48 In particular, the broadly understood reference to the principle of lawfulness of processing laid down in Art. 5(1)(a) GDPR is questionable. The restriction in Art. 83(2) GDPR (“effective, dissuasive and proportionate”) requires a sense of proportion on the part of the sanctioning data protection supervisory authorities, if the fines are not to be considered unconstitutional.49 Lastly, Art. 83(6) GDPR allows fines to be imposed for non-compliance with orders issued by supervisory authorities (Art. 58(2) GDPR). This is a sanctioning of administrative disobedience.50 Since the same misconduct of data controllers can already be sanctioned under Art. 83(5)(e) GDPR, Art. 83(6) GDPR is considered partly redundant.51 c) Interim Conclusion In light of all of the above, it is clear that the fines set forth in Art. 83 GDPR pose problems in a number of respects. Particularly precarious, on the one hand, is the contradiction in GDPR with regard to the definition of an undertaking, which is relevant for the calculation of fines. While the recitals explicitly refer to the definition of understanding under antitrust law, the wording of the enacting terms requires the use of the legal definition of the GDPR as the limit of interpretation. On the other hand, it seems to be difficult to reconcile several elements of fining with the principle of certainty under the criminal law. If a controller or processor cannot be certain which conduct is subject to a fine due to insufficiently defined legal terms, and (as yet) interpretative guidance from case law or supervisory authorities has not been forthcoming, fines based on these terms are open to challenge. In some cases, it is even thought that some of these indeterminate facts are unconstitutional. Since both sets of problems are of great importance for sanctioned companies, prompt clarification by the CJEU is desirable and, in view of the numerous fines imposed (see below), can be expected in the foreseeable future.

48 Golla, in: Auernhammer/Eßer/Kramer/von Lewinski (eds.), DSGVO/BDSG, Art. 83 GDPR para. 30. 49 Also in part Frenzel, in: Paal/Pauly (eds.), DSGVO/BDSG, Art. 83 GDPR para. 24. 50 Popp, in: Sydow/Marsch (eds.), DSGVO/BDSG, Art. 83 para. 10; cf. also Frenzel, in: Paal/Pauly (eds.), DSGVO/BDSG, Art. 83 GDPR para. 25. 51 Golla, in: Auernhammer/Eßer/Kramer/von Lewinski (eds.), DSGVO/BDSG, Art. 83 GDPR para. 35; for a restrictive approach, cf. Frenzel, in: Paal/Pauly (eds.), DSGVO/BDSG, Art. 83 GDPR para. 25.

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III. Effectiveness of the Sanctions Regime as a Means of Protection of Individual Rights One of the main focuses of this contribution is the question of whether and to what extent the sanctions regime of the new German and EU data protection law explained under section II above is suitable for enforcing the right to informational self-determination and the EU fundamental right to data protection (Art. 8 of the Charter of Fundamental Rights of the European Union – CFR). In particular, it is necessary to examine how intensively violations of GDPR have been sanctioned in the course of the (so far not very long) period in force of the new data protection law and what conclusions can be drawn from that with regard to the effectiveness of the sanctions. 1. Sanctions Deficits in Data Protection Law Even under the previous law, there was debate about the effectiveness of data protection law against the backdrop of its potentially insufficient enforceability; sanctions deficits were identified in several places in the BDSG (old version).52 Sanctions deficits may result from the fact that there are insufficient possibilities for sanctioning, or that sanctions, where they exist, are in practice not used.53 That cannot be said about the sanctions regime under GDPR. There is sufficient scope for sanctioning data protection violations due to the extensive range of fines having potentially extremely high upper limits. Rather, the latter issue is problematic: Under the old data protection law, in practical terms hardly any sanctions were imposed.54 Police crime statistics regularly only recorded annual case numbers in the mid three-digit range. Even under the new law, the same is likely to apply to the criminal offenses under § 42(1) and (2) BDSG (new version), which are not directly prescribed by the European legislature, but whose regulation and structuring was left to national lawmakers. There are probably two main reasons for problems in enforcement at these levels: A lack of interest in prosecution, on the one hand, and the vagueness of the affected standards, on the other. It is true that since GDPR came into force in 2018, with the ensuing associated media presence, the protection of personal data has increasingly become part of the general awareness of the population. Nevertheless, the past shows that even when major data protection violations became known, which sometimes affected large numbers of individuals, there was no particular interest in criminal prosecution for those offenses.55 52

See, for example, Lindhorst, Sanktionsdefizite im Datenschutzrecht, p. 35 et seq. and passim; Golla, Die Straf- und Bußgeldtatbestände der Datenschutzgesetze, p. 209 et seq. 53 Data Protection Conference, Ein modernes Datenschutzrecht für das 21. Jahrhundert, p. 31. 54 Golla, Die Straf- und Bußgeldtatbestände der Datenschutzgesetze, p. 213. 55 Golla, Die Straf- und Bußgeldtatbestände der Datenschutzgesetze, p. 213.

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There was sometimes an impression of “rational apathy,”56 which is probably also due to the fact that violations of the right to informational self-determination, unlike violations of other individual legal interests, are not regularly felt by the victims.57 At least in German data protection law, this is also due to the absolute requirement of the victims filing a criminal complaint, which was already the case under the old law and has continued under the new § 42(3) BDSG, and which – if the data subject is even aware of the existence of a criminal offense – is considered to be too high a hurdle for criminal prosecution, simply because of the effort involved.58 Due to its absolute nature, the criminal complaint requirement stands in the way of effective prosecution.59 It therefore seems more sensible to design the offense as a relative application offense, which would at least allow the public prosecutor’s office to intervene and take up investigations in the event of major data protection violations involving a large number of data subjects, whereby a public interest in criminal prosecution can undoubtedly be assumed.60 A sanctions deficit could also be justified in the future by the lack of clarity in respect of the elements of the offense. This conflicts with the principle of certainty under German criminal law, which requires a restrictive interpretation of the respective provisions.61 However, due to the low practical relevance of the criminal offenses even under the old law, there has been a lack of sufficient empirical data as to whether a sanctions deficit in the area of data protection criminal law is caused by the lack of clarity in respect of the criminal offenses.62 After all, the extensive fines provided for in Art. 83 GDPR, which are also subject to the criticism that they are insufficiently clear, but the enforcement of which is not primarily dependent on the participation of data subjects, can in practice achieve effective enforcement of European data protection law and thus of the right to informational self-determination. Nevertheless, in view of the unusually high range of fines, from one to twenty million Euros (and even more in the case of undertakings), there is a high degree of legal uncertainty as to which sanctions can be expected for which data protection violations. This lack of clarity is exacerbated by the legal concepts of effectiveness, dissuasiveness and proportionality, which need to be further interpret-

56

v. Lewinski, PinG 2013, p. 12 and passim. v. Lewinski/Rüpke/Eckhardt, Datenschutzrecht, § 13 para. 51; Golla, Die Straf- und Bußgeldtatbestände der Datenschutzgesetze, p. 213. 58 v. Lewinski, PinG 2013, p. 14; Golla, Die Straf- und Bußgeldtatbestände der Datenschutzgesetze, p. 213. 59 Golla, in: Auernhammer/Eßer/Kramer/von Lewinski (eds.), DSGVO/BDSG, § 42 BDSG para. 25. 60 Likewise Golla, in: Auernhammer/Eßer/Kramer/von Lewinski (eds.), DSGVO/BDSG, § 42 BDSG para. 25; Data Protection Conference, Ein modernes Datenschutzrecht für das 21. Jahrhundert, p. 33. 61 Golla, Die Straf- und Bußgeldtatbestände der Datenschutzgesetze, p. 220. 62 Golla, Die Straf- und Bußgeldtatbestände der Datenschutzgesetze, p. 221. 57

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ed, and for which an examination must be carried out individually for every fine imposed under Art. 83(1) GDPR. In this respect, it is not only desirable for the supervisory authorities and the courts to specify what constitutes a fine, but rather it is absolutely necessary to do so in order to create legal clarity. After all, it is the supervisory authorities that ultimately decide on whether and to what extent a fine will be imposed. Subsequently, it is the courts that have to review such official decisions in the event of challenges. 2. Enforcement of Sanctions by Data Protection Supervisory Authorities In general, data protection supervisory authorities are responsible for monitoring the application of GDPR under Art. 51(1) GDPR. According to Art. 58(2)(i) GDPR, this includes the power to impose fines within the meaning of Art. 83 GDPR for violations of the provisions of GDPR. a) The System of Supervisory Authorities In Germany, there is currently one federal supervisory authority (the Federal Commissioner for Data Protection and Freedom of Information) and 17 independent supervisory authorities at state level (Länder).63 According to Art. 52(1) GDPR, the supervisory authorities in the Member States must be “fully independent” in exercising their powers, which primarily means that they must be completely detached from the government in order to minimize the risk of political influence.64 Since – as the German example impressively shows – the Member States are free to establish more than one supervisory authority, and the total number of national authorities, each with its own institutional independence, can quickly reach a three-digit figure for 30 EU and EEA Member States, there is a need for coordination of data protection supervision at the supranational level. While there is no single data protection supervisory body at the EU level responsible for the entire EU,65 an institutional system of data protection supervision also exists at this level, namely in the form of the European Data Protection Supervisor (EDPS) and the European Data Protection Board (EDPB).66 The EDPS is primarily responsible for monitoring compliance with data protection law by EU institutions and bodies. Of particular importance for the uniform application of data protection law throughout the EU is the EDPB, cf. in this respect also Art. 70(1) GDPR. The 63

Each federal state has its own data protection supervisory authority. In Bavaria, however, there are separate authorities for the public (BayLfD) and private sectors (BayLDA). 64 CJEU judgment of 9 March 2010, C-518/07, para. 32 et seq.; Cf. v. Lewinski/Rüpke/ Eckhardt, Datenschutzrecht, § 22 para. 45. 65 Cf. v. Lewinski/Rüpke/Eckhardt, Datenschutzrecht, § 22 para. 4. 66 Cf. v. Lewinski, NVwZ 2017, p. 1483 et seq.

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body, which has its own legal personality, replaces the so-called Article 29 Working Party and takes its place in functional terms.67 Pursuant to Art. 68(3) GDPR, the EDPB is staffed with one head of a national supervisory authority per Member State, in addition to the European Data Protection Supervisor. This means that countries such as Germany, which have several national supervisory authorities (18 for Germany, see above), can only send a single representative to the committee.68 A central instrument of the EDPB is the issuance of guidelines on all questions of interpretation and implementation of GDPR (cf. Art. 70(1)(k) GDPR),69 which is particularly important with regard to the issuance of fines under Art. 83 GDPR: Although national data protection supervisory authorities have discretionary powers with regard to the sanctioning of data protection violations, they must take into account the general legal principles of the EU, which also include the principle of equal treatment.70 In this respect, the EDPB ensures uniform guidelines to prevent a specific data protection violation from being punished much more severely in one Member State than in another. Even before GDPR came into force, the Article 29 Working Party had issued guidelines regarding the sanctioning of data protection violations. b) Guidelines of the Article 29 Working Party In 2017, the Article 29 Working Party, as the predecessor of the EDPB, issued a guideline on the imposition of fines under GDPR (which was not yet applicable at that time).71 This guideline primarily explained the criteria relevant for the imposition of fines and the amounts of fines under Art. 83(2) GDPR in order to achieve the most uniform possible interpretation in the Member States of the criteria mentioned therein.72 The practice of the national supervisory authorities in imposing fines after GDPR came into effect showed, however, that there had not yet been any comprehensive standardization, particularly with regard to the amounts of the fines imposed. The Article 29 Working Party also recognized that the “consistent application of fines in the European Union […] is still an evolving process” that requires a high level of cooperation between the Member States and the EU institutions.73

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Wolff, in: Schantz/Wolff, Das neue Datenschutzrecht, paras. 965, 967. Wolff, in: Schantz/Wolff, Das neue Datenschutzrecht, paras. 969 et seq. 69 Wolff, in: Schantz/Wolff, Das neue Datenschutzrecht, para. 980. 70 Brink, ZD 2019, p. 142. 71 Article 29 Working Party, Guidelines on the application and setting of administrative fines for the purpose of the Regulation (EU) 2016/679, WP 253. 72 Article 29 Working Party, Guidelines on the application and setting of administrative fines for the purpose of the Regulation (EU) 2016/679, WP 253, p. 9 et seq. 73 Article 29 Working Party, Guidelines on the application and setting of administrative fines for the purpose of the Regulation (EU) 2016/679, WP 253, p. 18. 68

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c) Practice of Imposing Fines under GDPR in Germany and Other Member States The first fines for violations under Art. 83(4) to (6) GDPR were not long in coming after the GDPR becoming applicable. Probably the first fine imposed by a German data protection supervisory authority under GDPR in November 2018 amounted to E20,000 and was directed against the operator of a chat platform. The operator had stored customer data in plain text so that it was freely accessible on the Internet after a cyber-attack.74 Probably due to outstanding cooperation with the competent supervisory authority, the fine was comparatively low, despite the serious breach of data security rules (see Art. 32 GDPR).75 Meanwhile, in January 2019, the French data protection regulator CNIL had already imposed a (at the time record) fine of E50 million on Google for failing to adequately comply with the transparency and information obligations as set forth in the GDPR.76 In the UK, which at the time was still an EU Member State, the CNIL record fine was broken by the Information Commissioner’s Officer who imposed fines of £183.39m on an airline and £99.2m on a hotel chain.77 Higher fines for data protection violations were also imposed in Germany from the second half of 2019. In August 2019, for example, a Berlin platform operator had to pay a fine of E195,407 for not deleting customer data and violating data subjects’ rights.78 The highest fine to date under GDPR by a German data protection supervisory authority was imposed on a fashion retailer in the fall of 2020, which was fined over E35m for breaches of employee data protection.79 Several circumstances are striking about these developments: First, the fines imposed significantly increased over time. Secondly, at least in Germany, from around the second half of 2019, the fines were no longer merely round amounts, but were apparently calculated to the Euro. And thirdly, it is noticeable over the entire period that some authorities imposed significantly higher fines than others.

74 Conrad, in: Auer-Reinsdorff/Conrad (eds.), Handbuch IT- und Datenschutzrecht, § 34 para. 693. 75 Cf. https://www.heise.de/newsticker/meldung/Passwoerter-im-Klartext-20-000-EuroBussgeld-nach-DSGVO-gegen-Knuddels-de-4229798.html (accessed at 26. 3. 2023). 76 Cf. https://www.zeit.de/digital/datenschutz/2019-01/frankreich-datenschutzbehoerde-cnilgoogle-strafe-dsgvo (26. 03. 2023). 77 Cf. https://www.heise.de/newsticker/meldung/DSGVO-Strafe-110-Millionen-Euro-Buss geld-fuer-Hotelkette-Marriott-angesetzt-4466555.html (accessed at 26. 3. 2023). 78 Cf. https://www.heise.de/newsticker/meldung/Datenschutzverstoesse-Essenszusteller-Del ivery-Hero-muss-200-000-Euro-zahlen-4533862.html (accessed at 26. 3. 2023). 79 Cf. https://www.heise.de/news/DSGVO-Deutsche-Rekordbusse-von-35-3-Millionen-Eu ro-gegen-H-M-4917437.html (accessed at 26. 3. 2023).

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d) Guidelines Used by the Supervisory Authorities to Calculate Fines The risk of inconsistent fines practices is already high among 18 German data protection supervisory authorities. At EU level, this risk is multiplied accordingly. In order to address this problem, at least at the national level, the German Data Protection Conference (Datenschutzkonferenz), as the central body bringing together the independent data protection authorities of the federal and state governments, published guidelines in fall 2019 for the uniform imposition of fines in proceedings against companies. That explains why (i) higher and (ii) more precise fines were imposed in Germany from the second half of 2019 than in the previous months (see above). The German Data Protection Conference emphasized in its guidelines that they apply exclusively to proceedings against companies, in particular, and are not applicable to fines imposed on associations or natural persons outside their economic activities.80 Moreover, they are expressly applicable only until the European Data Protection Board has issued its own final guidelines on the setting of fines.81 Since this has now been done (see below), the German model has lost its relevance. According to those guidelines, the fines to be imposed was assessed in five steps. First, the company concerned was classified into one of 20 groups depending on its annual turnover, ranging from micro-enterprises with a turnover to E2m up to large companies with an annual turnover of over E500m. In doing so, the German data protection supervisory authorities used the antitrust concept of undertaking on the basis of recital 150 GDPR,82 although several arguments speak against this interpretation (see above). Secondly, the average annual revenue of the subgroup in which the company was classified was determined. For that purpose, the data protection conference had prepared a table from which the relevant subgroup could be read. For that purpose, the average value was calculated from the turnover range used for classification in the specific subgroup. Two examples: for a micro company with an annual turnover between E700,000 and E1.4m, the mean turnover was E1.05m; for a large company with an annual turnover between E200m and E300m, the mean turnover was E250m. Only in the case of large companies with annual sales of more than E500m was it not the average value that had to be taken into account, but the actual annual turnover of the specific company.83 80 Data Protection Conference, Konzept der unabhängigen Datenschutzaufsichtsbehörden des Bundes und der Länder zur Bußgeldzumessung in Verfahren gegen Unternehmen, p. 1. 81 Data Protection Conference, Konzept der unabhängigen Datenschutzaufsichtsbehörden des Bundes und der Länder zur Bußgeldzumessung in Verfahren gegen Unternehmen, p. 2. 82 Data Protection Conference, Konzept der unabhängigen Datenschutzaufsichtsbehörden des Bundes und der Länder zur Bußgeldzumessung in Verfahren gegen Unternehmen, p. 3. 83 Data Protection Conference, Konzept der unabhängigen Datenschutzaufsichtsbehörden des Bundes und der Länder zur Bußgeldzumessung in Verfahren gegen Unternehmen, p. 6.

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In a third step, a daily rate was determined from the average annual turnover by dividing the former by 360. The calculated amount was rounded up to the pre-decimal place. This resulted in a concrete daily rate for each of the 20 subgroups, i. e. in daily rates of between E972 and E1.25m, depending on the company’s turnover, provided that E500m was not exceeded. Fourthly, the daily rate determined was multiplied by a factor to calculate a basic value for the fine. The factor used depended on the severity of the infringement and had to take into account all circumstances of the individual case in accordance with Art. 83(2) GDPR. For this purpose, the fining guidelines differentiate between formal infringements under Art. 83(4) GDPR and material infringements under Art. 83(5) and (6) GDPR, whereby a factor of between one and six could be used for the former, with a factor of over six possible in cases of very serious infringements. For the latter, a factor of at least one was also to be used for minor infringements, but very serious infringements could be assigned a factor of over twelve. When selecting a multiplier in the area of very serious infringements, it was mandatory to ensure that the respective maximum limit of Art. 83(4) (two percent) or respectively Art. 83 (5) and (6) GDPR (four percent of annual turnover) was not exceeded.84 Finally, in a fifth step, the basic amount calculated by multiplication was adjusted on the basis of all other circumstances that speak for and against the sanctioning party, insofar as these could not already be taken into account in the selection of the multiplier. In addition to the criteria of Art. 83 (2) GDPR, the guidelines mentioned, for example, long duration of proceedings or imminent insolvency of the company concerned, as reasons for an adjustment of the final fine amount.85 In May 2022, the European Data Protection Board published its long-awaited guidelines on the calculation of fines under Art. 83 GDPR.86 Like the guidelines issued by the German Data Protection Conference, the guidelines primarily apply to companies. Fines against natural persons not acting as companies are not covered by these guidelines.87 Like the German supervisory authorities’ approach to fines, the European Data Protection Board’s guidelines follow a five-step approach.88

84

Data Protection Conference, Konzept der unabhängigen Datenschutzaufsichtsbehörden des Bundes und der Länder zur Bußgeldzumessung in Verfahren gegen Unternehmen, p. 8. 85 Data Protection Conference, Konzept der unabhängigen Datenschutzaufsichtsbehörden des Bundes und der Länder zur Bußgeldzumessung in Verfahren gegen Unternehmen, p. 8. 86 European Data Protection Board, Guidelines 04/2022 on the calculation of administrative fines under the GDPR. 87 European Data Protection Board, Guidelines 04/2022 on the calculation of administrative fines under the GDPR, para. 10. 88 European Data Protection Board, Guidelines 04/2022 on the calculation of administrative fines under the GDPR, para. 17.

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In a first step, the processing activities objected to are identified. In application of Art. 83(3) GDPR, it is also examined whether there are concurrences, i. e. whether the data controller or processor has violated several provisions of GDPR and therefore a limitation of the fine may be necessary. Then, in a second step, the starting point for the further fine calculation is determined. For this purpose, the following must be taken into account: (i) the classification of the infringement in Art. 83(4), (5) or (6) GDPR (see above), (ii) the gravity of the infringement according to the criteria of Art. 83(2)(a), (b) and (g) GDPR89, and (iii) the turnover of the company as a criterion for determining an effective, dissuasive and proportionate fine.90 On the basis of the starting point determined in this way, aggravating and mitigating circumstances of the individual case are then taken into account in a third step, whereby the guidelines refer in this respect to the criteria of Art. 83(2)(c) – (f) and (h) – (k) GDPR. In the fourth step, it is examined whether the fine determined in this way exceeds the maximum limits of Art. 83(4) – (6) GDPR. Finally, in a fifth step, an assessment is made as to whether the fine then determined meets the basic requirements of Art. 83(1) GDPR, i. e. whether it is effective, dissuasive and proportionate. Depending on the result of this analysis, the amount can be reduced or increased accordingly. Under no circumstances should the guidelines be used by companies to “price in” the risks of fines, as this circumstance can be considered a serious form of intentional commission of the data protection breach if it becomes known (Art. 83(2)(b) GDPR) and could thus lead to significantly higher fines. At first glance, it is to be welcomed that the data protection supervisory authorities have developed guidelines that are intended to ensure the uniform application of the very large fines framework of Art. 83 GDPR. The right to informational self-determination could thus be enforced effectively and, above all, by fair means in the form of fines. However, there are significant concerns in several respects speaking against these guidelines. The biggest point of criticism of the guidelines for fines relates to the comparatively narrow orientation towards the turnover of the companies to be sanctioned. In Art. 83(2), GDPR explicitly includes various criteria that are to be “duly” taken into

89 This concerns the nature, gravity and duration of breaches, taking into account the purpose of the processing in question, as well as the number of data subjects and the extent of the damage they have suffered (lit. a); intention or negligence of breaches (lit. b) and the categories of personal data concerned (lit. g). 90 The method for determining the starting amount of fines is described in detail in the guidelines; a complete reproduction would go too far here. Reference is made, for example, to Weber/Rotter, ZD 2022, p. 416 et seq.

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account when deciding on the imposition of fines and the amounts of those fines; turnover of the company is not among them.91 Annual turnover as the basis for calculating fines cannot be derived from Art. 83(2)(k) GDPR either, which stipulates the “financial benefits obtained directly or indirectly as a result of the infringement” as the basis for calculating fines. Although the advantages obtained as a result of infringements ultimately have an impact on annual turnover, this circumstance, which is mentioned by way of example in the general clause of Art. 83(2)(k) GDPR, does not speak in favor of using (the not expressly mentioned) annual turnover as the central criterion for assessing fines.92 In addition, the intentions of the legislature must be sufficiently taken into account in that circumstances that were not explicitly mentioned in Art. 83(2) GDPR should only taken into account to a subordinate extent.93 In addition, not even the Article 29 Working Party, which, in its working paper, dealt with all the criteria of Art. 83(2) GDPR, mentioned company turnover as the (main) basis for the assessment of fines.94 It must be conceded that the new guidelines will regularly fulfill the guiding criteria of effectiveness and dissuasiveness by way of the higher fines for data protection violations that are possible as a result. However, it must be critically questioned whether the third criterion of Art. 83(1) GDPR, namely that of proportionality, is also met. The principle of proportionality requires the fines imposed be proportionate to the offences and the culpability involved.95 In particular, a comparison with antitrust law, which was explicitly the model for the data protection fine regime,96 shows that this criterion is unlikely to be met if the entire annual turnover is used. In antitrust law, only the “affected turnover” is used to calculate fines, i. e., the turnover that the company generated with goods or services whose sales benefited from the infringement.97 A fine for a data protection infringement therefore – as Art. 83(2)(k) GDPR stipulates – should be assessed solely on the basis of the company’s turnover if turnover was generated or expenses were saved as a result of the infringement.98 It would make more sense to use the company’s profit as the basis for calculating fines – which is indisputably necessary to create a uniform fining practice – instead of turnover. A fine is all the more dissuasive the more it affects the profit margin.99 How91

The situation is different, for example, in § 81(4a) German Act Against Restraints of Competition (GWB) with regard to antitrust violations, see Timner/Radlanski/Eisenfeld, CR 2019, p. 783; see also Thüsing/Kudlich, Die Rechnung geht nicht auf, FAZ Einspruch of 29. 1. 2020. 92 Also Timner/Radlanski/Eisenfeld, CR 2019, p. 783. 93 Bergt, in: Kühling/Buchner (eds.), Art. 83 GDPR para. 52. 94 Cf. Timner/Radlanski/Eisenfeld, CR 2019, p. 783. 95 ZD-Interview mit Barbara Thiel und Tim Wybitul, ZD 2020, p. 4. 96 Cf. recital 150 (3) GDPR. 97 ZD-Interview mit Barbara Thiel und Tim Wybitul, ZD 2020, p. 4 et seq. 98 ZD-Interview mit Barbara Thiel und Tim Wybitul, ZD 2020, p. 5. 99 Thüsing/Kudlich, Die Rechnung geht nicht auf, FAZ Einspruch of 29. 1. 2020.

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ever, it is only proportionate if it follows fair standards. A company that generates a lot of profit with little sales should ultimately be in no better a position than a company that generates huge sales but only has a small profit margin.100 Regulators should therefore base their approach to fines more on profit margin and less on absolute sales. And even if the orientation towards the annual turnover of the company is already laid down in the form of percentage limits in Art. 83(4) – (6) GDPR, it must nevertheless be taken into account that these limits are merely the upper limits of potential fines to be set, not, however, the main component of the calculation method for determining those fines.101 The caps serve primarily to ensure the economic survival of the sanctioned company and thus to maintain the proportionality of fines.102 As a result, the circumstances that, firstly, the model uses company turnover as the guiding assessment criterion and, secondly, the determination of annual turnover is based on the entire group and not the individual entity (antitrust or functional company concept), although the better arguments speak against this understanding,103 speak against the guidelines of both the European Data Protection Board and the German supervisory authorities.

IV. Conclusion The right to informational self-determination, as well as the right to data protection, are enshrined in the German constitution and the European Charter of Fundamental Rights. In order to enforce the right of every individual to protection of his or her personal data, data protection law – which already existed under EU law before GDPR came into force – has a sanctions regime that can impose fines or penalties on entities processing personal data for violations of the formal and material requirements of data protection law. With the full harmonization of EU data protection law achieved in GDPR, the sanctions regime has been significantly expanded. The addressees of sanctions can be all data controllers and processors, i. e., those entities that directly handle personal data. However, since data processing by natural persons is in many cases not subject to the material scope of GDPR, and public bodies can neither be punished nor fined under German law, data protection sanctions are regularly directed against companies. National data protection supervisory authorities, of which there are a total of 18 in Germany (one at the federal level and 17 at state level), can issue fines of up to E20m 100

Thüsing/Kudlich, Die Rechnung geht nicht auf, FAZ Einspruch of 29. 1. 2020, comparing large law firms with retailers: The former sometimes aim for profit margins of up to 50 percent, the latter regularly calculate with less than five percent. 101 Timner/Radlanski/Eisenfeld, CR 2019, p. 783. 102 For a convincing treatment, cf. Timner/Radlanski/Eisenfeld, CR 2019, p. 783. 103 See above.

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under Art. 83 GDPR; if a company is to be sanctioned, the upper fine limit is up to four percent of the previous year’s turnover if that value is higher than E20m. Both formal and material data protection violations can be punished. The vagueness of some of the provisions relating to fines is particularly problematic, as it is not always possible for those subject to the law to determine whether or not their (planned) conduct is subject to a fine simply by reading GDPR due to the numerous references to standards and vague legal terms. GDPR does not directly regulate the penalty provisions available; rather, the creation of relevant offences was left to the national legislatures. Germany has implemented this regulatory mandate by creating § 42 of the German Data Protection Act (BDSG), which in particular penalizes unauthorized data trading for profit. It is questionable to what extent the sanctions regime is suitable for the appropriate enforcement of the right to informational self-determination. The fines provided for in Art. 83(4) – (6) GDPR, which can be used to effectively sanction data protection violations without the involvement of the data subject due to the possibility of high fines, are significantly more effective and more relevant in practice than under the previous law. At first glance, the guidelines of fines developed by the German data protection supervisory authorities and by the European Data Protection Board are to be welcomed, as they are intended to achieve comparable standards in determining the amounts of fines that are appropriate depending on the culpability of specific violations. This can prevent data controllers from carrying out critical processing operations in Members States that are known for imposing lower fines than others (socalled forum shopping). However, according to the opinion expressed here, the guidelines are not optimal. On the one hand, they predominantly base the calculation of fines to be imposed on the turnover of the companies concerned, although this approach has no corresponding basis in GDPR. In addition, supervisory authorities do not use the turnover of the specific company to determine turnover, but rather that of the entire group of companies (the so-called antitrust or functional company concept), which leads to significantly higher fines. Such an interpretation – although implied in GDPR’s recitals – may with good arguments be viewed as contrary to the express wording of the enacting text of GDPR. As a result, however, data protection violations can be effectively sanctioned via the instrument of fines under Art. 83 GDPR. The immensely high risks of fines associated with infringements have also led to greater awareness of personal data protection in society in general, but also among companies in particular. Consequently, the new sanctions regime is by no means a “paper tiger”. It remains to be seen, however, whether the new guidelines of the European Data Protection Board will result in a uniform implementation of the fine framework throughout the EU and thus – precisely because of the sometimes drastic amounts of the fines – contribute to an im-

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provement in the protection of personal data. In this respect, further developments will be followed with interest. Bibliography Auernhammer, Herbert (founder), Eßer, Martin/Kramer, Philipp/Lewinski, Kai von (eds.): DSGVO/BDSG, Datenschutz-Grundverordnung, Bundesdatenschutzgesetz und Nebengesetze, 7th edition, Cologne 2020. Auer-Reinsdorff, Astrid/Conrad, Isabell (eds.): Handbuch IT- und Datenschutzrecht, 3rd edition, Munich 2019. Brink, Stefan: Bußgeldrahmen nach der DS-GVO: “Mit Zuckerbrot und Peitsche”, ZD 2019, pp. 141 – 142. Eckhardt, Jens/Menz, Konrad: Bußgeldsanktionen der DS-GVO, DuD 2018, pp. 139 – 144. Ehmann, Eugen/Selmayr, Martin (eds.): Datenschutz-Grundverordnung. Kommentar, 2nd edition, Munich 2018. Faust, Sebastian/Spittka, Jan/Wybitul, Tim: Milliardenbußgelder nach der DS-GVO? Ein Überblick über die neuen Sanktionen bei Verstößen gegen den Datenschutz, ZD 2016, pp. 120 – 125. Golla, Sebastian J.: Die Straf- und Bußgeldtatbestände der Datenschutzgesetze als Teil des Schutzes des informationellen Selbstbestimmungsrechts, Berlin 2015. Grünwald, Andreas/Hackl, Jens: Das neue umsatzbezogene Sanktionsregime der DS-GVO. Bußgeldbemessung nach kartellrechtlichen Maßstäben?, ZD 2017, pp. 556 – 560. Hecker, Bernd: Europäisches Strafrecht, 6th edition, Berlin, Heidelberg 2021. Hilgendorf, Eric/Valerius, Brian: Strafrecht Allgemeiner Teil, 3rd edition, Munich 2022. Körner, Moritz: Papiertiger Datenschutzgrundverordnung, Tagesspiegel Background, 27. 01. 2020, available at https://background.tagesspiegel.de/digitalisierung/papiertiger-datenschutz grundverordnung (accessed at 26. 3. 2023). Korte, Matthias: Verbandsstrafrecht zwischen Wissenschaft und Politik, NZWiSt 2018, pp. 393 – 398. Kühling, Jürgen/Buchner, Benedikt (eds.): Datenschutz-Grundverordnung, Bundesdatenschutzgesetz, 3rd edition, Munich 2020. Lewinski, Kai von: Datenschutzaufsicht in Europa als Netzwerk, NVwZ 2017, pp. 1483 – 1490. Lewinski, Kai von: Zwischen rationaler Apathie und rationaler Hysterie. Die Durchsetzung des Datenschutzes, PinG 2013, pp. 12 – 17. Lewinski, Kai von/Rüpke, Giselher/Eckhardt, Jens: Datenschutzrecht. Grundlagen und europarechtliche Neugestaltung, 2nd edition, Munich 2022. Lindhorst, Matthias: Sanktionsdefizite im Datenschutzrecht, Frankfurt am Main 2010. Paal, Boris P./Pauly, Daniel A. (eds.): Datenschutz-Grundverordnung – Bundesdatenschutzgesetz, 3rd edition, Munich 2021. Rengier, Rudolf: Strafrecht Allgemeiner Teil, 14th edition, Munich 2022.

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Roßnagel, Alexander/Geminn, Christian: Evaluation der Datenschutz-Grundverordnung aus Verbrauchersicht. Gutachten im Auftrag des Verbraucherzentrale Bundesverbands e.V. (vzbv), 2019, available at https://www.vzbv.de/sites/default/files/downloads/2019/12/04/1911-26_gutachten_evaluation_dsgvo.pdf (accessed at 26. 3. 2023). Schantz, Peter/Wolff, Heinrich-Amadeus: Das neue Datenschutzrecht. Datenschutz-Grundverordnung und Bundesdatenschutzgesetz in der Praxis, Munich 2017. Schulzki-Haddouti, Christiane: Papiertiger – Kaum Strafen für Verstöße gegen Datenschutzvorschriften, c’t 10/2016, pp. 162 – 164. Sieber, Ulrich/Satzger, Helmut/Heintschel-Heinegg, Bernd v. (eds.): Europäisches Strafrecht, 2nd edition, Baden-Baden 2014. Simitis, Spiros/Hornung, Gerrit/Spiecker called Döhmann, Indra (eds.): Datenschutzrecht. DSGVO mit BDSG, Baden-Baden 2019. Spindler, Gerald: Die neue EU-Datenschutz-Grundverordnung, DB 2016, pp. 937 – 947. Sydow, Gernot/Marsch, Nikolaus (eds.): Datenschutz-Grundverordnung, Bundesdatenschutzgesetz. Handkommentar, 3rd edition, Baden-Baden 2022. Thüsing, Gregor/Kudlich, Hans: Die Rechnung geht nicht auf, in: FAZ Einspruch of 29. 01. 2020, available at https://www.faz.net/einspruch/einspruch-exklusiv-die-rechnung-gehtnicht-auf-16606457.html?premium (accessed at 26. 3. 2023). Timner, Hanno/Radlanski, Philip/Eisenfeld, Alexander: Die Bußgeldbemessung bei DSGVOVerstößen. Warum das Bußgeldkonzept der Datenschutzkonferenz europa- und verfassungsrechtlich bedenklich ist, CR 2019, pp. 782 – 788. Weber, Marc Philipp/Rotter, Daniel: Einheitliche Bußgeldfestsetzung im Europäischen Wirtschaftsraum. Die neuen Leitlinien des EDSA zur Berechnung von Bußgeldern, ZD 2022, pp. 415 – 422. Wolff, Heinrich Amadeus/Brink, Stefan (eds.): Beck’scher Online-Kommentar zum Datenschutzrecht, 43rd edition (as of 01. 02. 2023), Munich 2023. ZD-Interview mit Barbara Thiel und Tim Wybitul: Bußgelder wegen Datenschutzverstößen – aus Sicht von Aufsichtsbehörden und Unternehmen, ZD 2020, pp. 3 – 7.

Digitalisation and the Right to the Lawful Judge – Human Being or “Automated Judging Machine”? By Bernd Weiß*

I. Problem Definition and Problem Awareness Digital judges will one day replace human judges? Nonsense is what (almost) every lawyer would think at first when confronted with such a scenario for the future. It’s impossible for constitutional reasons alone. And on top of that, it’s not even technologically conceivable, let alone feasible. Really? If you test the idea with an unbiased, legally uneducated audience and introduce it with the words: “Think about it, a computer judge is much more neutral than a human being, everyone is treated equally, regardless of the emotions and world views of the person who has to judge and regardless of the personal characteristics of the person being judged, such as skin colour, sexual orientation, education and purse”, in two out of three cases the response is: “Great idea, that’s the direction things should go in, it must be possible nowadays.” One remembers the constantly recurring demand to exclude gender, skin colour, age, etc. in job application procedures in order to avoid discrimination. The remaining applicant data is then fed exclusively into a computer which has never had such difficult demands really placed on it, as far as I know. But this example shows how distrust of institutions run by human beings is growing and how people are only too happy place themselves at the mercy of machines in order to exclude “human imperfections” when it comes to making important decisions. In this case, too, only one candidate can get the advertised post. But it is quite conceivable that getting rejected by a computer is more likely to be accepted than the same decision would be were it made by a human being or a committee of human beings. At any rate, at the beginning of the Corona pandemic, the desire for a strong state seemed to be growing again, including confidence in hands-on politicians. But that didn’t last. Of course, the whole thing still has a touch of science fiction about it. In order that this paper does not drift completely into the theoretical or even fictional, we must first look at what is technologically possible – now and in the foreseeable future. However, not in great depth and breadth. I am not an engineer, and the things I discuss in the first two sections of this article would certainly be discussed in much greater * Dr. Bernd Weiß is a notary in Schweinfurt, Member of the Bavarian Constitutional Court.

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depth by engineers. I am probably not telling them much new. However, before exploring the legal limits on the complete replacement of human judges, one should be clear about the two ways in which that could happen – I call them the Adrian way and the Datzer way, after my two protagonists in the first two sections. In the legal context, digitisation and artificial intelligence are currently still primarily viewed from the perspective of whether they can simplify traditional work methods. Will this approach continue long term in our digitalisation-obsessed times, when forecasts are constantly being published about how many highly qualified professions will be eliminated, in how many years at the latest, and which ones will be replaced by artificial intelligence? Where are the firewalls of human freedom that independent (human) courts are supposed to protect and that cannot be torn down by digital disruption? And will they stand? I will try to work out which questions will arise in the medium term, which ones are already foreseeable today, and which, in my opinion, we must try to steer today, before the free democratic order drowns in a flood of big data because it did not learn to swim in time. To do this, I will first follow the essay by Prof. Adrian quoted below. In the second part, I will mirror his findings with an interview I conducted with a successful software entrepreneur, Michael Datzer. This will be followed by an interim conclusion. After that, I will look for existing guidelines in our constitution – or rather, let’s call them “footbridges” in the flood of data, on which one can keep one’s feet dry and one’s head clear. Finally, I will end up with questions that the constitutional state – perhaps even freedom as such – must face and for which we must be prepared. And being prepared for questions is only the prelude to being able to give answers. So I will have to ask myself: what can technology do, what can it be entrusted with, and do we want that?

II. Automated Judges According to Axel Adrian Prof. Dr. Axel Adrian, a notary in Nuremberg, caught the attention of interested experts with his essay “Der Richterautomat ist möglich – Semantik ist nur eine Illusion”, published by Duncker & Humblot in 2017. In his essay, he explored the question of whether legal thinking could be simulated by machines. He first went into great depth to find a simulatable core of legal thinking, not without mentioning that to do so, one would actually have to intertwine legal science as a minimum with the disciplines of philosophy, linguistics, neuroscience, computer science, mathematics, physics, etc., which would hardly be manageable for a legal scientist alone. His idea was as follows: provide a philosophical concept for explaining linguistic meaning in order to develop a corresponding programme architecture for a “lawbot”. Adrian distinguished – in ascending order – between already existing digital applications that simply support lawyers in their work, such as literature research, machines that simulate legal thinking as comprehensively as possible (this would

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probably be the automated judge that imagined as support for his judges) and finally, in the future, computers that will completely replace judges. Adrian first posed the question of how legal thinking works. Regardless of the major schools of legal thought (Anglo-American case law, continental European codified law), he noted a broad consensus regarding the main tasks of legal thinking and legal method(teaching) as: “interpreting or construeing legal texts in a specific way in order to determine their meaning in a legally correct manner. As a result, lawyers are supposed to ensure that the meaning of the text as established by the legislature is decisive for the judicial decision and not the personal opinion of the judge. According to a general definition, interpretation in the humanities, and thus also in legal science, means “the artful, rule-governed, methodically derived understanding of the meaning of a text”, which specifically involves determining the “‘semantics of content’ (…) of the text.” Already the major premise (Obersatz) in Adrian’s subsumption seems to me to be chosen in such a way that it will not stand in the way of automated judges, because it avoids an important point – the interpretation of the law. Adrian goes into great detail below on the “extraction” of the semantic meaning of a text by the judge – it is not yet the application of the law. And if, for example in criminal proceedings, the judge has to weigh the extent of an offender’s personal culpability in reaching his judgment, that is more than “semantic” textual interpretation, i. e. beyond Adrian’s considerations. That is because the questions that are raised at the end of this paper seem far away as a result. However, Michael Datzer, with whom I conducted the interview that will be the subject of the next part, has an amazingly – not to say frighteningly – simple solution to bridge this gap. Adrian spent a very long time examining the question of whether humans are at all capable of linking the factual features and meanings of the applicable legal norms, each formulated in natural language, with a formal syntax that can be read by machines. Only then would machines be able to simulate formal logical thinking using axiomatic-deductive processes. Ultimately, no human being can know whether or not he or she has been understood by another individual, even if they both speak the same language. This is a fundamental problem because there is no compelling combination of words and signified objects, because each person is caught up in his or her own unique, personal understanding of the world or holistic web.1 I interpret it like this: because people ultimately don’t really “understand” each other either, it makes no real difference who reconstructs what is already misunderstood and gives a reaction to what is said, the input. Because we often have problems understanding what exactly our counterpart means, or because that is not even possible, it does not matter whether a human being processes this input or a computer according to formally similar structures, because it then does not matter that the com1

Adrian, Rechtstheorie 48 (2017), p. 91.

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puter (also) does not understand the input. Adrian’s considerations start with this difference between semantics and syntax. In my opinion, Adrian would not necessarily need an in-depth study of the theory of human understanding. Above all, he avoids the accusation that a machine that cuts up texts and puts the building blocks or “quanta” back together again is not at all comparable to a human lawyer. But which judge has never had a lawyer’s brief on the table in which leading sentences from the Juris database file were strung together more or less incoherently and without reference to the concrete case, because they somehow seemed to fit? Perhaps Adrian is not entirely wrong in thinking that his machine can do that better. One has to describe Adrian’s approach, which in itself is thought through, in such detail, not only to understand his own conclusions from it. The interview in the next section will show that the digital world is developing in exactly this direction even without linguistic foundations and legal theory insights – and apparently faster than Adrian foresees. His comment in section VI. 4.: “At this point, it should also be noted that, in my opinion, the principle of democracy and the rule of law, according to which the law should apply equally to all, is likely to be better implemented if the major premise of law, i. e. the law, is ‘constructed’ by a machine and not by a human judge. Because then, in the assessment of a legal case, as many legal opinions as possible of all lawyers involved in the concrete legal problem will automatically be included by the machine according to their respective roles and authority in state law”,2. In light of what Datzer sees in the future, there rather develops the dystopia that was the reason for me to deal with the topic. After Adrian has worked out that semantics is only an illusion, he sets about a “quasi-quantum theory of legal language”. Adrian does not want to use the semantic meaning (which cannot be determined anyway), but the syntactic structure of the legal language to “teach” the machine how to think legally. Humans are able to recognise individual signs from an infinite amount of data, the “stream of signs”, which impinge on them. A human being would also have to filter these out from the stream of signs. Words, sentences, text modules, books would result from quanta of signs and language. Humans, too, could only ever process natural language in “quanta”. Therefore, in order to simulate legal thinking, we would only have to process a finite quantity of language quanta, i. e. legal books, judgments and texts, which he calls “finite character spaces”. And machines could do that too. Adrian concludes that a machine could also “fish” for meaningful chains of language quanta from this finite sign space and put them into a syntactically correct sequence without worrying about the semantic meaning. So, roughly speaking: by chopping up legal sources, filtering them and comparing sequences and prioritising them according to source (supreme court/

2

Adrian, Rechtstheorie 48 (2017), p. 112.

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lower court) or frequency (minority opinion), according to Adrian, a computer should already be able to create legally meaningful texts itself, given sufficient data. At this point, I would like to leave it at that with Adrian’s basic research, because here is the point of intersection with the interview I did with Michael Datzer, which shows that not only the opportunities but also the dangers that lie in Adrian’s theoretical approach are in practice already at our doorstep. Just this much: Adrian is of the opinion that his machine cannot replace human lawyers, especially in the respective (official) professions, as administrative officials, judges, notaries, lawyers, etc., but can only provide them with decision-making aids, and that at best the jobs of socalled “paralegals” will be eliminated, since his theory only enables the simulation, but not the substitution, of (officially active) legal decision-makers.3 I think that the problem combined with the “automated judge” will arise much earlier, because the simulation – or from a human point of view rather the illusion – of an independent answer from the machine is often enough for humans to believe that they are actually communicating with this machine. Thank you Alexa! Adrian believes that his project could fail4 because either no sufficient digital database is available or can be generated, or too few criteria are available to define the qualities of character sets or language quanta and their specific chains in a formalised way. In his opinion, the procurement of formalised data, e. g. by way of “crowdsourcing”, would probably fail because the quality of the speech quanta depends crucially on the source, and thus the legal authority, being reputable and determinable. Moreover, the machine’s strength lies in the clarification of legal questions and not in the creation (determination!?) of the legally relevant facts.5 What Adrian works out in his concept of a syntax-based automated judge, however, is ultimately not that different from how the “learning” algorithms of the big data platforms work, which is why the problems he addresses are still rooted more in legal-semantic thinking and are not simply problems for the software engineer. And this is where Michael Datzer comes in.

III. Where Will the Disruption Take Place? In order to mirror Adrian’ findings, who, despite all his openness and obvious enthusiasm for the new technology and its possibilities, takes a legal approach, I conducted a detailed interview with a software entrepreneur. Like Adrian, I am legally pre-educated – I don’t want to say “blinded” – and not technical, and no matter how detailed the interview, you don’t have to be a real expert in the technical field. Also, of course, I did not have the opportunity to interview a large number of engineers, but 3

Adrian, Rechtstheorie 48 (2017), p. 104 et seq. Adrian, Rechtstheorie 48 (2017), p. 111. 5 Adrian, Rechtstheorie 48 (2017), p. 112. 4

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have to rely on the assessment of my interlocutor. But this is informative and should open many eyes for the legal observer. Michael Datzer is a software entrepreneur and was highly successful in the market for corporate clients for many years with his Schweinfurt-based company VINTIN GmbH. He had around 200 employees until his retirement in 2021. He says of himself that at the beginning of his entrepreneurial activity he earned his money mainly by selling networks to his customers. Today, everything is “cloud and platform”. You can assume that he knows what he is talking about when you talk to him about the future of digitalisation and AI. When I introduced him to the topic of our conversation, raising the traditional legal question of whether it is conceivable that an AI will eventually replace human judges, he interrupted me by saying: “That’s the wrong question. The right one is: where does the disruption take place? In the application process or already in the facts?” This is how the software developer thinks, who in his work is not professionally bound to categories such as constitutional tradition or hierarchy of norms – especially since these categories also differ nationally and are completely alien to the way of thinking of people who work in global networks who themselves know very little about law. Datzer assumes that the digital disruption in the legal field, as in many others before it, will not take place in the scope of application, but in the facts of life. And this is called “state order” in our legal terminology. Why, according to Datzer’s approach, should a software developer bother with having laws passed by parliaments interpreted and applied by his software? These are auxiliary services, better office programmes. Someone dealing with AI would be more interested in things like the “social credit points” in China, where all human actions are monitored, good behaviour is rewarded and bad behaviour punished, immediately and without a trial. “The receipt follows on the heels, in many ways through sanctions or rewards, which is much more effective than traditional court proceedings,” says Datzer. Without a penalty order or fine, without a judgment, without an appeal, without a judge. It is not really important whether such a system is imposed on people by a repressive state like China, or whether people submit to it themselves, like they initially did to Google and Facebook, by voluntarily handing over their data to make their lives seem easier. China is currently going one step further and is consistently using the web and AI for control. In the end, however, it will come down to a few people setting the “moral standards”, because we have placed ourselves at their mercy. Then it won’t matter whether the supreme leader is called Xi or Zuckerberg or Bezos. Datzer is describing how global networking is progressing faster and faster. At the moment, everything has digital “identities”, both things and people. Everything that is important about a person is stored there – just think of the digital health record and the problems that have already arisen with data security. Enders states in his essay

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“Using Artificial Intelligence in Legal Decision Making”6: “Amazon’s Kindle Reader knows what we read; Youtube and the game console know what we watch; Siri and Alexa listen to our conversations; Apple and IBM improve our health; the robot vacuum cleaner reports the measurements of our flat; the smart TV watches us while we watch TV; search engines, apps, cookies and browser extensions evaluate our internet activities. Our car is a data octopus. Facebook draws our attention, influences our feelings, decisions and behaviour. Slowly but surely, our freedoms, human rights and opportunities to participate are dwindling.” Hope for the irreplaceability of humans is attached to the fact that AI has no emotions. However, it does not seem certain that this will continue to be the case in the future. Datzer believes it is quite conceivable that an algorithm will at some point declare a person legally competent or even legally incompetent on the basis of their stored health data – possibly in combination with other data – and even assign them a guardian. Ultimately, according to Datzer, the state could be completely replaced as the guarantor of law, property, currency, etc. through the networking of our data and complete surveillance. Platform technology is already laying the foundation for such a development. The platform companies (Amazon, Google, Facebook, Microsoft, everything that collects data) no longer earn their money with the original customer-related application, but rather by selling the data obtained and by making space available in their clouds for third-party users. He gave the example of one of his customers, a toy manufacturer, who wanted new software for production planning and inventory management. Datzer sold him an application from Amazon, according to which this group can predict very precisely, through the wealth of its data, which toys will be in demand at which time of year and how often. Cheaper than their own software, and also more effective. But conversely, this customer also delivers his data back to Amazon, where it is further processed. A perpetuum mobile of data acquisition. The clouds are cheaper, faster and simpler, and the data can all be networked – whether it’s our shopping data, health data, or images from surveillance cameras in public places or police body cams, or even court records. Datzer shows the three steps in the development of AI: The first step is the collection of vast amounts of data. This was the beginning of the digital age, where completely new possibilities arose to collect, store and process computer-assisted data in a small space. The second step is to concentrate all this data on a few platforms. This process is currently underway, as described. In addition to the data that will be newly collected on these platforms, all the “old” data will also be digitised, starting with libraries (legal decision collections), images, etc.

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The third and final step will be the networking of all these platforms. On the one hand, this would then be a more than sufficient data platform for Adrian’s deductive procedure, but also the starting point for far more unpleasant possibilities. Doesn’t this suddenly sound frighteningly familiar? Not only in the online marketplace, but also in the evaluation, monitoring and subjugation of people, there is no need to look to Chinese social credit points. The statistical evaluation of data and their “schematic” linking, with legal consequences for people, has not been foreign to us for a long time. We already judge, observe and punish people in this way in many places, and that means we judge them. In response to my question whether he believed that human self-subjugation really went so far that people blindly trusted the algorithm, Datzer replied that in real life people were becoming more and more accustomed to having the computer make their decisions for them. We only have to look at ourselves to see how much and how uncritically we rely on and follow the instructions of the navigation system in the car. At some point, our children will find it quite normal when the computer tells them in the morning what to eat for breakfast, what to wear, what to take to school. I also asked whether research on a quantum computer would have any influence on this development, or whether it could accelerate it. Datzer said that the quantum computer would initially “only” bring progress in terms of faster computing power and more memory in a small space. The key to development lies in the software, algorithms, platform technology and the networking of data. Then, through “identity” (by networking all of a person’s data) and “loyalty” (social credit points!), state guarantee functions – including the duty to safeguard rights – could be made superfluous or replaced by “crowding”. The problem is still the execution of sanctions for violations, as long as those sanctions are not themselves network-based – an AI can also automatically debit a fine from my credit balance, which is only available digitally. But some things still have to be done “manually”, and Datzer believes that if the state can find such helping hands (law enforcement officers), then they will also be found for a new order. I am reluctant to call such a new order “state”. Let’s call it “community”. And what Datzer describes as “loyalty” and “identity” would perhaps be best captured in conventional legal terminology as the emerging “common law of the internet”. Datzer believes that development can go that way. When I asked him if he thought that was desirable, he replied: “Humans love technology. In the Stone Age, we tried fire and burnt our fingers on it if we weren’t careful. Today it’s AI.” If you believe Harvard economist Shoshana Zuboff and the theses in her book “The Age of Surveillance Capitalism”, we already have quite a few burn blisters. Datzer is of the opinion that digital disruptions are much more radical than those affected by them – in this case us lawyers – imagine. To the point of being completely superfluous.

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Now, all this does not have to happen so radically (although some of Datzer’s references to human nature should give us food for thought). But we should note after the two sections that data collection and networking is advancing and it need not be long before an algorithm can fish out the quanta of language described by Adrian from the mass of legal data collected on platforms and reassemble them.

IV. Interim Result: The Automated Judge is Possible – in One Way or Another Let us note as an interim result, which should make it clear to us that we urgently need to think about this, that according to Datzer, the amounts of data that Adrian would need for his automated judges will soon be readily available, and that according to Datzer, digital disruption could make not only judges superfluous, but also automated judges, altogether a good part of the traditional legal world. Adrian thinks that his project could fail because there are too few data and/or too few criteria for determining the qualities of character sets or language quanta and their specific chains in a formalised way, and that a procurement of formalised data, e. g. by way of “crowdsourcing”, could fail because it is crucial for the quality of his “language quanta” that the source, and thus the legal authority, can be reliably determined.7 He is quite a lawyer and thinks in terms of hierarchies of norms and courts, whereas Datzer’s approach does without a data hierarchy, more along the lines of “mass instead of class”. The approach of the disruptive software developer. While Adrian is trying to “recreate” a traditional human judge and use him in the traditional system of the administration of justice (with or without final human control), Datzer thinks that the administration of justice as a whole could be replaced bit by bit by another system of social control – an idea that is not so easy to dismiss. Where Adrian “shocks” the science of law with the realisation: “Because humans, for their part, only simulate exchanging semantic meaning, machines must also be able to simulate this”.8 Datzer would probably see this differently. The algorithm itself “learns”. It merely lacks the consciousness to do so. The computer no longer has to “think” about the issue of “being correctly understood”, at the latest when it is a single large networked platform, because it is a single, large, all-embracing holistic network in itself. The problem of being properly understood therefore probably only arises with “beings” that have “consciousness” of themselves and others. When Adrian states that a holistic human network contains all the personal experiences an individual has had in the course of his or her life from his or her individual perspective, which are essentially linked and stored associatively,9 then this is prob7

Adrian, Rechtstheorie 48 (2017), p. 111. Adrian, Rechtstheorie 48 (2017), p. 91. 9 Adrian, Rechtstheorie 48 (2017), p. 106. 8

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ably precisely what makes the all-encompassing platform seemingly more “neutral”, because it can store and link infinitely more data than a human being with all the experiences of a long life ever could. And when he states that neither a human nor a machine can grasp and process an infinite stream of signs, but only a finite set of signs or strings,10 the large-scale platform is nevertheless light years ahead of us in this processing – “fishing” for meaningful chains of language quanta” is what Adrian calls it.11 Where Datzer and Adrian meet: Through this fishing for data, methodologically everything is equally accepted as linguistic practice “if it has only been written down and published in text form”. Thus, there is also no clear separation between fact-finding and legal norm concretisation, or the like. Conversely, however, this has the advantage that the machine would then have to be usable in both continental European and common law jurisdictions, since a mixture of all legal practices of all jurists, including case comparison, can be processed”.12 As said, Datzer does not see the lack of a data basis, which Adrian sees as the reason for the failure of his project. The two diverge where Adrian sees his machine as an aid to the courts of this “world legal order” in the making, and Datzer replaces the courts and legislation at the same time. If below we examine the question of whether there are constitutional limits to the transfer of adjudication to machines – or whether they should be drawn as soon as possible – then this applies equally to both possible developments. For one must first consider that the algorithm could “learn” what the human judge currently does. And one must consider that it may not have to learn this at all, because it will soon be able to set and enforce its own “law” and thus replace the courts and the legislature at the same time. Both are challenges for our legal system.

V. How “Resilient” is the “Traditional Statutory Judge”? To start with: no one will deny that humans – or, as the lawyer would put it, “natural persons” – are meant when Article 92 GG speaks of the judicial power being entrusted to “judges”. Enders, in his previously cited essay “Einsatz künstlicher Intelligenz bei juristischer Entscheidungsfindung”13 (Use of Artificial Intelligence in Legal Decision-Making), therefore only briefly addresses the question of whether AI is conceivable “in a judicial function” with the remark: “In contrast, there is no doubt about the inadmissibility of the use of AI for decision-making by a judicial corpus, i. e. instead of the judge as a natural person. According to Article 101 (1) (2)

10

Adrian, Rechtstheorie 48 (2017), p. 98. Adrian, Rechtstheorie 48 (2017), p. 102. 12 Adrian, Rechtstheorie 48 (2017), p. 110 et seq. 13 Enders, JA 2018, p. 723. 11

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GG, no one may be deprived of his or her legal judge. It is clear that a legal judge within the meaning of this norm is a natural person”.14 But let’s be honest: no one has yet given much thought to whether the “legal judge” has to be a human one. It is commonly thought that this all somehow follows from the principle of the rule of law, which is encompassed by the “eternity guarantee” of Article 79 (3) GG. Is that really so? It is not as “completely self-evident” as Enders presents it in that citation – at least not for eternity. So let’s assume it were technically possible: How “resilient” would the “traditional”, or rather the “traditional” statutory human judge be in the face of foreseeable digital disruptions? What does the German Constitution have to say to our question – apart from the fact that, at least in Datzer’s scenario, no one is interested in that anyway? When searching for durable firewalls in our Constitution, one comes across the fact that although many things have constitutional status, they are not set in stone for eternity, but can be changed with the necessary parliamentary majority and a galloping Zeitgeist, or sometimes even simply interpreted differently. One could do that, if one were so minded. And to remain with Datzer’s metaphor: what should prevent us from once again burning our fingers on technology? Enders (op. cit.) approaches the question of the legality and/or possibility of the use of AI to make decisions with the technique of the “normal case method with consistent structural thinking”, which is well-known for dealing with legal issues never previously litigated and the subsumptions that need to be made in the process. In doing so, the procedure attempts to determine, on the one hand, which areas exist in which there are no doubts about the legality and the possibility of using AI and, on the other hand, which areas exist in which there are no doubts about the illegality of the respective use. Then, on the basis of the criteria obtained, an answer can be sought for other cases that lie between those two positions. In do so Enders worked out the two cornerstone areas – or case groups – “AI for internal decision preparation of lawyers and other persons in private law” (undoubtedly lawful) and “AI functioning as a judge” (undoubtedly unlawful), and then extrapolated further to areas such as “AI for decision-making with automatic acceptance by the court” (“unlawful”), and “AI for decision-making without automatic acceptance by the court” (“more likely unlawful, due to the preliminary characterisation of the decision, exclusion of counter-arguments, thus ultimately a violation of the right to a legal hearing under Article 103 (1) GG). In any case, judges’ independence under Article 97(1) GG and § 25 et seq. DRiG cannot justify any obligation on the part judges to use AI. AI cannot not replace lawyers in legal proceedings either, since natural persons admitted to the bar must take responsibility for the pleadings and sign them, and according to § 4 No. 1 BRAO 14 Accompanied by the citation proof: So completely natural with Morgenthaler, in: Epping/Hillgruber (eds.), Beck’scher Online-Kommentar GG, Art. 101 Rn. 3 et seq.; with further references Jachmann-Michel, in: Dürig/Herzog/Scholz (eds.), GG, Art. 101 Rn. 25 et seq.

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(with exceptions under European law), only persons who have acquired the qualification to be judges under the German Judges Act are admitted to the bar. Thus, socalled robo-lawyers (and then probably even more so “robo-judges”) would in any case not be able to independently hear and judge in legal proceedings. Of course, both DRiG and BRAO are “only” ordinary regulations, and the rocksolid anchoring of the judge as a “natural person” in our Constitution as “completely self-evident” comes across as somewhat thoughtless in view of our fast-moving, technology-believing times. It is precisely the question that Enders declares to be settled “as a matter of course” that is at issue here. The strongest conceivable firewall in the GG, which would also support Ender’s demarcation line, would in this respect be the “eternity guarantee” itself in Article 79 (3) GG. Let’s start our considerations with it, because if it turned out that the right to a human judge is covered by it, we could at least breathe a sigh of relief until another “constitution comes into force which has been freely decided by the German people”, as has been stated in Article 146 GG. The guarantee of eternity is to be interpreted narrowly as an exceptional provision. Only elements of the GG created by the constitutional assembly itself are protected there.15 Above all, it does not prevent the legislature from modifying the positive-legal expressions of these principles for appropriate reasons.16 Nor is the principle of the rule of law as such protected, but only certain specific manifestations17: the separation of powers, the binding of jurisdiction and executive power to law and justice, and the constitutional order.18 Accordingly, the guarantee of legal recourse (Article 19 (4) GG) is not covered by the eternity guarantee. In Article 20 GG, which is covered by the “eternity guarantee” of Article 79 (3) GG, the GG (unlike in its first draft)19 does not even explicitly mention the expression “rule of law”. However, the principle of the rule of law is derived specifically from Article 20 (3) GG and as such is one of the elementary constitutional principles and fundamental tenets of GG.20 Even if the judicial power thus partakes in the guarantee of eternity via the principle of separation of powers and thus Articles 20 and 79 (3) GG, Article 20 GG does not provide any precepts or prohibitions of constitutional rank that are clearly defined in all details, but rather it is a constitutional principle that requires concretisation depending on factual circumstances, whereby, fundamental elements of the state under the rule of law and the rule of law itself as a

15

Sannwald, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 79 no. 37. BVerfGE 84, 90 (120 et seq.); 94, 49 (102 et seq..); 109, 279 (310); Sannwald, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 79 no. 38. 17 BVerfGE 30, 1 (24). 18 Sannwald, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 79 no. 67. 19 Hofmann, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 20 no. 56. 20 Hofmann, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 20 no. 56. 16

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whole must be preserved.21 These include the commitment of the legislature to the constitutional order, the guarantee of effective legal protection, the principle of the lawfulness of the administration, the commitment of the courts to law and justice, the requirement of legal certainty, and the principle of separation of powers.22 The fact that this protects the separation of powers as such means that there must be an independent judiciary, but not that another state power would not be called upon to appoint the (then independent) state courts. The manifold discussions on judicial “self-administration” have confirmed this several times, also in the jurisprudence of the constitutional courts. Neither the general principle of separation of powers nor, for example, Article 97 GG can be used to infer the collective independence of the judicial branch of government. Article 20 (2) (2) GG does not contain a strict requirement for the separation of powers, but rather a requirement for the proper allocation and balancing of powers in order to prevent the abuse of power.23 In my opinion, this opens up to the legislature to a certain extent the possibility of defining what courts are, as several passages below illustrate. A glance at Article 92 GG, as the central constitutional norm on the courts, is sobering when one realises that the terms “judge” and “court” used there are indeterminate legal terms that are to be interpreted both on the basis of constitutional requirements as well as on the basis of traditional definitions or those made by the legislature.24 Thus, simple statutory law has interpretive significance; Art. 92 GG is a normative constitutional provision. Article 92 GG is a provision of objective constitutional law; it only establishes the official status of judges and does not confer on them or on the parties to proceedings any subjective public rights that are directly amenable to appeal.25 In our context, this already brings some accepted certainties into question. Article 92 GG is an objective constitutional right, not a subjective public right that is directly subject to appeal. The individual judge is protected in his legal position “only” by Article 97 GG and the “traditional principles of the civil service”, i. e. Article 33 (5) GG. That no longer sounds as if it were set in stone for all eternity. The GG does not itself define the term “judicial power” in the sense of Article 92 GG, but presupposes it to be of pre-constitutional origen. However, there is widespread agreement in constitutional jurisprudence and doctrine that the scope of the judicial monopoly on adjudication protected by Article 92 GG depends decisively on the content of this term. Thus, the exercise of judicial power cannot already be said to exist if a state body is staffed with independent judges within the meaning of 21 BVerfGE 7, 92; 11, 72; 25, 290; 28, 277; 35, 41; 45, 246; 49, 164; 52, 144; 53, 127; 65, 290; 74, 152. 22 Hofmann, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 20 no. 57. 23 Heusch, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 97 no. 15. 24 BVerfGE 22, 49 [76 et seq.]; 64, 175 [179]; 76, 100 [106]; 103, 111 [136 et seq..]. 25 Hopfauf, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 92 no. 5, 6.

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Art. 92 et seq. GG.26 Rather, the concept of judicial power/branch has to be determined by its concrete functions.27 The hallmark of judicial activity is typically the final and binding determination of legal relationships in a dispute within the framework of specially regulated proceedings.28 This substantive-functional concept of adjudication includes all decisions that are assigned to judges by the Constitution as prerogatives of judges or guarantees of legal recourse. They belong to the traditional core area of adjudication (civil disputes, criminal prosecutions), as do decisions for which the legislature has functionally provided for a judicial procedure with dispute resolution and final binding authority.29 This is more than a purely formal concept of judicial power, for example, as the sum of the functions assigned to the appellate courts under simple law, as in the Weimar Constitution.30 In that case, Article 92 GG would de facto be subject to a simple reservation by law and would not be able to set any limits on the legislature’s encroachments upon judicial power. The legislature would decide on the scope of judicial power, which would be at the mercy of the legislature’s power of definition; the decision-making monopoly of the judges (properly speaking courts!?) would cease to exist.31 Particularly protected is the core area of criminal law, which encompasses all important criminal offences.32 Here, judges (courts!?) are exclusively and without exception called upon by the Constitution to exercise preventive judicial control. Fundamental to this is the judgment of the Federal Constitutional Court of 6 June 1967,33 where the first guiding principle states: “1. criminal penalties can only be imposed by judges in accordance with Article 92 (1) GG. They may therefore not be pronounced in administrative proceedings even in the case of minor criminal wrongs.” In three combined cases, the issue was §§ 421 (2), 445 and 447 (1) of the Tax Code of 13 December 1919, as amended on 22 May 1931, which had been in force up to that time and which gave the tax offices the power to impose penalties in criminal tax proceedings. The Federal Constitutional Court ruled in favour of the applicants and stated that the imposition of criminal sanctions was the exercise of judicial power within the meaning of Article 92 GG. This was based on a material concept of the judicial branch. According to this judgment, only judges could impose criminal penalties.

26

BVerfGE 103, 111 [136 et seq.]. BVerfGE 103, 111 [137]; 116, 1 [10]. 28 BVerfGE 103, 111 [138]; 138, 33. 29 Hopfauf, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 92 no. 7 et seq. 30 RGZ 107, 320 [323 et seq.]; BVerfGE 22, 49 [74 et seq.]. 31 BVerfGE 22, 49 [74 et seq.]. 32 BVerfG 22, 49 [79 et seq.]; 23, 113 [126]; 27, 18 [28]; 64, 265 [294]. 33 BVerfGE 22, 49 et seq. 27

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Only a substantive understanding of the concept of court jurisdiction would do justice to the meaning of Article 92 GG. The history of the provision’s origins did not allow any definite conclusions to be made as to its meaning. However, in numerous individual provisions of GG, the courts were constitutionally assigned tasks that were clearly defined. These tasks were included in a conceptual synopsis of judicial activity as judicial power. They already made up a very substantial part of the courts’ activity. The care that GG had taken to emphasise the judicial branch as an institution and as the institution controlling the other powers would be difficult to understand if its scope were to be subject to the simple reservation of the law (simple laws). The GG guarantees to citizens legal protection by the courts against encroachments to an unprecedented extent by the state into their spheres of life. In the instant case it was not compatible with the fundamental principle of the Constitution that an administrative authority, as in this tax case decided, and imposed a penalty which was entered into the criminal records as a prior conviction and which, in cases of irrecoverability, was converted into a custodial sentence. These characteristics and effects specific to criminal punishments differentiated it from a monetary fine as a state sanction for an administrative offence so that the different classification of the respective (criminal) punishment and the fine was justified. The competence to impose criminal sentences therefore belongs in all cases to the judicial branch, which is not subject to the dispositions of the legislature. In the core area of criminal law, judges are called upon to impose penalties by Article 92, first half GG without exception and exclusively for preventive legal control. “Preliminary proceedings” by administrative authorities are inadmissible in this area, even if they can be transferred to the courts upon request. Does this now mean that, at least in the area of criminal law, human judges have to impose sentences? This would be a starting point for our question and could define further core areas of adjudication for which, at best, Adrian’s automated judge could be used for support – with final human control – while clear red lines would have to be drawn against a creeping or even disruptive takeover of adjudication functions by social control in the sense of social credit points. In 1967, however, the Constitutional Court naturally had no reason at all to consider whether “judges” within the meaning of Article 92 GG had to be human beings. The requirement of “preventive imposition” of criminal penalties by courts, with the simultaneous possibility of punishment of administrative offences first by the administration, with “repressive” control by the courts, was indeed very clearly formulated in the judgment. But the Constitutional Court unconsciously chose to use the terms “judges” and “courts” as synonyms in its judgment. The court had no (technical) reason to decide the question of whether “courts” must be staffed by “natural persons”. Rather, the judgment dealt with the distinction between the administration and the courts, i. e. the executive and the judiciary. However, the wording of the judgment makes it difficult, with regard to the perpetuity guarantees of Article 79 (3) GG, to take at least the core area of criminal law away from the human judge, which is

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certainly understood at present as the correct remit under Article 92 GG, without the constitutional lawmaker “modifying the positive-legal expressions of the principles of Article 79 (3) GG for appropriate reasons”. Could one see such proper reasons in the technological possibilities for mass proceedings that our President of the Court alluded to at the beginning of this paper? In the case of administrative offences, however, in the preventive area, at least at first instance, the situation is obviously different. And what can be transferred to the administration can also be transferred to an AI, can’t it? In any case, outside the core area of criminal law, the legislature can transform minor criminal offences into administrative offences, impose warnings and fines, and thus at the same time place them in the hands of the administrative authorities, subject only to post-hoc judicial control.34 Wouldn’t the automatic awarding of “social credit points” or their withdrawal by an AI already be conceivable now, provided that the AI were part of the state administration and there was the possibility of post-hoc judicial control? And that does not mean that the judge has to be a human being. It can be seen that the areas that are mandatorily assigned to judges (or better to the courts!?) do not, according to our GG, quite naturally contain everything that is assigned today to the courts for adjudication. Even in the case of the administrative court jurisdiction, it has not been clearly established whether this belongs to the traditional core area of court jurisdiction.35 And for our original question, whether the courts must be staffed with (human) judges, there is in any case no clear answer. Let us therefore take a look at Article 97 GG. Under Article 97 GG, personal independence is an essential characteristic of being a judge. Anyone who cannot decide independently cannot be a judge.36 Article 97 GG guarantees the factual independence of judges in para. 1 and the personal independence of judges in para. 2. This twofold guarantee of judges’ independence is a necessary element of the rule of law37 and is directly related to the principle of separation of powers and the duty to safeguard justice, as well as the requirement of effective legal protection. As a core element of the rule of law enshrined in Article 20 (2) and (3), the guarantee of judicial independence indirectly partakes of the so-called eternity guarantee of Article 79 (3) of the GG.38 However, the guarantee of judicial independence under Article 97 (2) GG is also not oriented towards the institutional independence of the courts.39 This guarantee,

34 BVerfGE 22, 49 [79 et seq.]; 22, 125 [132 et seq.]; 27, 18 [28]; Hopfauf, in: SchmidtBleibtreu/Hofmann/Henneke (eds.), GG, Art. 92 no. 18. 35 Hopfauf, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 92 no. 19. 36 Heusch, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 97 no. 1. 37 BVerfGE 2, 307 [320]. 38 Heusch, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 97 no. 2. 39 Heusch, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 97 no. 15.

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which is also referred to as an auxiliary guarantee because of its auxiliary function, also does not establish any personal privileges for judges.40 Apart from that and qualifications for the office of judge, there are no guidelines in GG for the suitability of judges. Who would deny the independence of an algorithm that does not seem to be in any way affected by human weaknesses? And what about “aptitude for judicial office”? It cannot be derived in a binding manner from the subordinate DRiG for the GG. AI has to a far greater capacity for office than any human being, if one takes both Adrian and Datzer seriously, in that it has the capacity to consider all or at least many more decisions and opinions in its judgment than a human being ever could. And if the legislature can already modify the positive-legal manifestations of the guarantees of perpetuity for appropriate reasons, then all the more so the positive-legal manifestations of its less protected constitutional elements. With regard to Article 20 GG, does it then only depend on who appoints the digital judge to his office and how independent the judge is from being reprogrammed from that point on? After all, a human judge is also “programmed” for his profession at some point during his studies and then let loose on humanity as an independent judge, without being exposed – indeed, allowed to be exposed – to major external interventions from that point on. So why not feed the platform with a learning algorithm under expert legal supervision and then let it independently “run over our lives”. The citizen’s right to the “lawful judge”, a subjective right of defence arising from the principle of separation of powers in Article 20 GG,41 read in conjunction with Article 2 GG, should in any case not be affected by this, if it is not a right to always be judged by a human being. Constitutional hurdles to electronic judges acting independently do exist, but they would not be insurmountable – sometimes even through interpretation or simple amendments to the law, in the core area covered by the perpetuity guarantee probably only within the framework of an appropriate modification of its positive-legal manifestations by the legislature. In any case, the individual judge is not protected from being placed alongside digital “colleagues” and at some point being made into an obsolete model. This is because Article 92 GG is in this respect a norm of objective constitutional law and, as already explained, grants neither the judge nor the parties to the proceedings a subjective public right that is directly appealable. Looking at the jurisprudence in the “legal environment” of my question, it becomes apparent that discussions about delegation of the exercise of state power – and this is also the case with acts of the judiciary – from which one could derive findings, have so far only been conducted in two directions: the delegation to people who are not themselves holders of state power, and the “delegation” to “animal helpers”. Possibly, however, findings from such cases will lead us closer to our central issues.

40 41

Heusch, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 97 no. 41. Hofmann, in: Schmidt-Bleibtreu/Hofmann/Henneke (eds.), GG, Art. 20 no. 56.

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The decision of the Higher Regional Court of Frankfurt of 3 January 202042 dealt with the question of the delegation of the exercise of state power to non-governmental persons or institutions. In this context, the OLG declared the use of private service providers to monitor stationary vehicles to be “unlawful” on the basis of fundamental considerations. The decision thus clearly stated that matters concerning the state’s monopoly on the use of force may not leave the sphere of the state. But what would happen if an electronic judge were to be assigned to the sphere of the state, i. e. if sovereign power were transferred to the state algorithm, as it would to a human civil servant or judge? In that case, the decision of the Higher Regional Court of Frankfurt would not apply, because the state did not delegate its monopoly on the use of force to private institutions or service providers outside its sphere. It delegated the monopoly on the use of force within its sphere to something that was not human. There is indeed another judgment on the question of the exercise or delegation of state power – albeit “only” decided by a district court. The Brilon District Court had to decide on criminal proceedings against a police officer for minor bodily harm in office in two cases.43 A police officer and dog handler confronted three youths, one of whom was driving a vehicle without a driving licence, who fled from the police officer. After the officer had stopped the vehicle and felt unjustifiably threatened by one of the youths, the officer signalled his dog to attack, whereupon one of the youths was injured by the dog. So much for the first – unproblematic – course of events. The police officer then ordered the dog to guard the three youths with a “beware order”. According to the district court, in this situation the trained police dog was supposed to decide at its own “discretion” whether to attack the youths again, and eventually did so. The Local Court first stated: “The decision to use direct coercion as an official encroachment on the right to bodily integrity, which has constitutional rank under Article 2 (2) GG, is of such high sensitivity that its transfer to an animal is not constitutional. This results from a comparative legal consideration: If the accused had left the decision whether to use direct coercion against the injured party to a private party – e. g. in the form of a private security service – this delegation of sovereign tasks would undoubtedly be unlawful. (…) While a decision whether and how to use direct coercion always constitutes an exercise of sovereign power, the implementation of this decision does not necessarily have to be carried out by public officials.” In this respect, the reasoning of the Brilon Local Court largely coincided with that of the Frankfurt Higher Regional Court. However, the district court went on to say: “The final decision as to whether public officials may use force against other people or not belongs to the public official and thus to a human being, not to an animal. As a rule, only the (ideally: trained) officer will have sufficient assurance to assess with 42 43

OLG Frankfurt v. 3. 01. 2020, Az. 2 Ss-OWi 963/18. AG Brilon v. 20. 05. 2019, Az. 11 Ds-215 Js 42/18-30/19.

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certainty whether the envisaged use of force is necessary and appropriate and whether, for example, a movement by a detained person is to be considered an attack or escape attempt or whether it is harmless or only serves to free the person from a position of constraint, as in the case that was decided. The intellectual comprehension of the factual and legal situation that precedes this decision – also with regard to the degree of suspicion and the age of the person to be arrested – cannot be expected from an animal despite the best training. It is not without reason that animals are not held liable for their actions or omissions in breach of duty.” As well thought-out and correct as the judgment of the Brilon District Court appears to be – in the part quoted at the end it again reveals that it does not get to the heart of the question posed. For according to Adrian, a perfectly programmed electronic judge can do a much better job than an (“ideally: trained”) human judge. According to Datzer, AI will soon be able to “intellectually comprehend” such things as age, previous mental illness or degree of suspicion of having committed a crime. And at the aforementioned conference in Tel Aviv, even the criminal liability of AI was discussed, which is ultimately the strongest form of “liability” we know of. From this point of view, what speaks against the appointment of “electronic public officials” by other state institutions (the Basic Law does not provide for personal self-administration of the courts), if the AI judge is then only allowed to “pass through” undisturbed by the other two branches of government? The argumentation of the district court may justify why a dog that is not capable of abstract thought cannot independently perform sovereign functions. But does that apply in the same way to a well-oiled algorithm that keeps a “cool head” even in situations that would cause psychological strain in civil servants? Probably not. So the current hurdles for the electronic judge are certainly high, but not insurmountable. Nothing that a vigorously blowing Zeitgeist could not blow away. Even more dangerous, however, are creeping processes such as those that emerge from time to time today, which are perhaps not “meant that way” by the legislature, but are in fact developing in the direction of social credit points, that elude/bypass the legislature. At present, such processes seem to be taking place below the threshold of perception of legal science, or are at best being discussed from the point of view of data protection. The “fundamental right to informational self-determination” developed by the Constitutional Court is, in theory, a hurdle for data collection or data generation by the state, which would be a precondition for both Datzer’s prediction and Adrian’s automated judges. This hurdle for data collection, however, lies somewhat beside the actual topic of this paper. It has only indirect, possibly only temporary effects on what the future may hold. And Datzer suggests that we will probably not experience a repressive collection of data by the state, as is the case in authoritarian systems like China. But we are “giving away” our data to the big platforms without any control. And we no longer have any influence on what then happens to the data. We largely don’t seem to care, that’s

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the Zeitgeist. And even where the state wants data collected, public discussion in itself is often not coherent.

VI. The Challenge Now that we have examined what technology can do or presumably will soon be able to do, and whether we could transfer responsibilities to it according to its capabilities, we should ask ourselves whether we want such a transfer at all. Bill Gates is said to have said: “You overestimate what will happen in the next year, but you completely underestimate what will happen in the next ten years”. In so far, the complete replacement of human judges by AI is only a fantasy for the time being, but one that is worth exploring. How quickly things happen that upend all our lives was shown by the emergence of the Corona virus. The power of the platforms and the domination of the virtual world over the analogue one is real, if anything, fuelled by this crisis, where people sit at home and entertain themselves with streaming services and online retail shopping is ultimately prevailing over local brick and mortar retail. The fact that Datzer considers the data gap that Adrian sees more likely to be nonexistent or quickly bridgeable should give us pause for thought. Adrian tries to define, simulate and finally partially substitute “legal thinking” using a profound epistemological approach. According to Datzer, this is all much faster, more brutal, more disruptive. The danger to our conventional understanding of law and justice could take concrete shape sooner than expected – or is perhaps already in the process of creeping into our lives via habituation processes to new forms of dependency on little digital helpers. This is why one should not dwell on the theory of science, on “thinking about legal thinking”, because the operators of data platforms are really not interested in that – the keyword is “surveillance capitalism”. One should urgently consider where one wants to go and, if necessary, erect new firewalls or at least guard rails. In any case, the question clearly goes beyond what the first legally trained response reflexes tell us, for example, when it comes to the degree of guilt in criminal law, we can only imagine a human judge making that decision, and Datzer thinks that with enough data, for example based on the concept of “social credit points”, one can certainly simulate morality, the “right attitude”, or good and evil, just like in weather models. This would be a very inductive approach to the knowledge of law, or good and evil, and to my despair Datzer answered every time I asked who teaches the computer the basics of good and evil: “No one, the algorithm learns that bit by bit itself from the data it collects, ultimately from user behaviour”. Seen in that light, it would be almost more reassuring if strict legal positivism were instilled in the algorithm, which would crown the attitude that “a computer is more neutral than a human being”.

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What would happen to the hierarchy of courts? In Estonia, as far as I have read, they are experimenting with “automating” the courts of first instance – but only the first instance and only up to a certain sum in dispute. But doesn’t that mean that the more efficient, all-knowing computer at first instance would be reversed by an “incompetent” higher court? Adrian writes: “At this point, it should be noted that, in my opinion, the principles of democracy and the rule of law, according to which the law should generally in the abstract apply equally to everyone, might be better implemented if the major premise, i. e. the law, was ‘construed’ by machines. For then, when assessing a legal case, the machine would automatically include as many legal opinions as possible from all lawyers involved with the concrete legal problem according to their respective role and authority under national law. There is less danger of a human judge overlooking important authorities in case law or in the literature, or even imposing his or her personal opinion, if the machine has at least prepared the decision. As far as possible, all relevant, holistic networks will then be effective or at least visible and not only that of the concrete judge”.44 Seen in this light, if machines were to completely replace human judges, there would no longer be any need for courts of appeal. For one thing, the judgment would be close to perfection anyway, and for another, what other result would the same large computer platform come to at its own next instance? Incidentally, this also applies in a weakened way if a human judge is appointed at all instances to control the result. The result of the machine must always be the same. So why have a hierarchy of courts? One can’t help but wonder what will happen to the further development of the law – and, as a consequence, who will take over lawmaking in the future. When a judge searches for “suitable cases”, that is not yet the creation of law (it would be different in the Common Law with the search for precedents), but a better search engine for case-related “commentaries”. The underlying statutory law is also applied when searching, evaluating and – if suitable – adopting the law from similar cases. But of course, the law is not static. It is constantly evolving not only through legislation, but also through case law/interpretation. Perhaps the algorithm still learns at the beginning when it is reversed by a higher court. Perhaps it will also have updates on new statutes and case law at the beginning until it “learns” that itself. Perhaps it also falls back on all the human judgments and literature that have been handed down so far. But at some point it falls back on judgments that it has “constructed” itself, as Adrian puts it. And the development of literature, if it does not come to a complete standstill because it makes no sense to argue with a machine anyway, will at some point adopt outpourings of machine-constructed jurisprudence. That means that either the further development of the law will come to a standstill at some point because it will go round in circles, the machine will stew in its own juices, or the results will no longer be understandable for humans. Adrian’s “non-trivial machine”. 44

Adrian, Rechtstheorie 48 (2017), p. 112 et seq.

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Enders sees the same problems, asking, for example, how there could still be conflicting opinions under the “authority of AI on which a litigant could rely”, what a statement of defence should look like if the same AI also drafts the statement of claim, whether one would thereby freeze the further development of the law (also with regard to doctrine) and at what point in time, and who could have meta-competences if a decision by the AI or a development of its decisions were perceived as “wrong” (and whether a decision could actually be “wrong” at all). He also comes to the conclusion that a consistent use of AIs would make the hierarchy of courts, the division into specialised courts, ultimately the entire guarantee of the right to appeal under Article 19 (4) GG largely obsolete. However, Enders is just as caught up in legal thinking as I was when I asked Datzer who programs the algorithm. He also thinks that anyone who wants to entrust legal assessment processes to the AI must establish who is allowed to make the fundamental (value) decisions in programming upon which the decisions of AI systems depend. Even in the case of self-learning effects by the AI, the question would remain as to who would make the first initiating value decisions and set the standards for the subsequent “self-learning” of the AI – the immediate programmer, the platform company, the respective ministry of justice, special departments at supreme courts, special university chairs? When he writes: “Or should we simply and randomly use all the data that is available on a certain date more or less by chance in a database (which one?) or in a ‘merged’ enlarged database made up of all the individual databases, only in Germany or Europe or worldwide?”, both Adrian and Datzer would answer: “Exactly that!” Both, of course, with qualifications, whereby Datzer would rather give free rein to the mass of data, i. e. primarily teach the algorithm to “self-learn”, while Adrian would exclude random, unordered data, and at least still weight and structure the “learning material” for the AI (especially according to sources, literature, court of first instance, higher court, etc.). When Enders continues that legal activity, especially subsumption, is an evaluative process and thus “systemically” eludes a simple assignment into categories like right or wrong, yes or no, and thus also “current” or “not current” (and, among other things, the example that § 307 (1) (1) BGB declares GTC provisions invalid which unreasonably disadvantage the contractual partner of the user contrary to the principles of good faith, and thus contains a value decision in three consecutive terms), then Datzer says that a self-learning algorithm will be able to simulate such evaluations in the foreseeable future – like the “weather model”. Whether it also “understands” the valuation in our sense is irrelevant from this point of view. To “understand”, “to be understood”, or even “to be misunderstood” are categories in which, by nature, only beings who are “aware” of themselves think – and even we humans only talk past each other most of the time, as Adrian writes. Not a pretty scene, but I would go one step further. I don’t know whether it is a coincidence that Enders, in his enumeration of the possible persons/institutions that

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provide the guidelines for the programming of the first initiating value decisions of the AI, has omitted, of all things, the institution that, according to our understanding, is called upon to do so first and foremost: elected parliaments as legislatures. If computers judge us, if the further development of the law comes to a standstill in this case taken to the extreme, then it will not be long before they will also make the laws. And there will again be people who say: Yes, of course, that is much more neutral, balanced and better for everyone than what the politicians in the parliaments cobble together” (and, by the way: the laws would unfortunately possibly be systematically more coherent than what today’s legislators put together at state, federal and European levels). Just think of the Fridays for Future movement. According to Welt am Sonntag of 15 March 2020, its German voice, Luisa Neubauer, said in a conversation with the CEO of the Axel Springer publishing house, Mathis Döpfner, that democracy would “take too long”. And in the movement “extinction rebellion”, democracy is explicitly considered an “unsuitable concept” to solve the problems on the planet. An AI as legislature, dedicated to purely scientific and logical knowledge, would be grist in their mill. Intellectually, behind this is the concept of the “benevolent dictator” or the philosopher-king in Plato’s Republic, the longing for a form of rule in which independent experts, guided only by altruism, govern, treating everything and everyone equally. And yet, as we know, the pursuit of supreme equality can lead to supreme injustice. Not to mention that while it may not be a programming problem, or unnecessary, giving the AI “first initiating value decisions”, there will always be someone who has meta-competencies to access the programme. And regardless of whether it is the Chinese leadership, Zuckerberg or Bezos, it is not democratically legitimised and controlled. Are we as lawyers perhaps giving up on ourselves too much and too quickly in this mind game? What about our legal education, our historical experience? Does our Basic Law itself still have the status we once gave it after World War II, based on our experiences with Nazi tyranny, when now even the Constitutional Court is softening the eternity guarantee? I assume that the use of AI in a subject related to the Humanties, or ultimately a philosophical subject such as ours, also involves a certain laziness of thought, indeed self-depreciation on the part of professionals. And this gap is being filled with enthusiasm and verve by programmers who not only want to show what they can do and that it is possible, but who also want to make their thinking absolute and immortalise themselves in their algorithms. When I speak of “laziness of thought” on the part of lawyers, I don’t mean the everyday work that they hope to make easier with AI helpers. But they hand over things that are more important than the day-to-day “trivia” without giving it much thought. And things often take on a life of their own. Don’t lawyers today have to ask fundamental questions, such as which state under the rule of law we mean when we talk about the “rule of law”, before we let machines dictate the outcome? The bourgeois-liberal one with its roots in the 19th century? Or do we mean by rule of

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law a rather content-empty “rule of law”, with investment protection and all sorts of other kinds of security, which can also be guaranteed by the “sepulchral quiet” of a surveillance state like China What if what historians say is true, namely that narratives are lost after the third generation, i. e. after about 70 years, when the generation that still felt things firsthand and can tell about them from their own experience, has passed away. What then has become of the “narrative” of the Basic Law? The sentence: “We have always done it this way” is unfortunately just as self-referential as the sentence of all believers in progress and technology: “That is so old-fashioned”. And without a narrative, in this case without the experience of war and tyranny, our Basic Law has become amazingly pliable relatively quickly. After the Federal Supreme Court stated in 1967 that “he who restricts himself cannot be wronged”, the Federal Constitutional Court45 made it clear that the state has an obligation when it comes to the granting of rights by the courts. But what does the state do when people default in acceptance with regard to this obligation, submitting to the AI itself and voluntarily submitting more than the state structures, as Datzer describes it? Exaggerated? I don’t think so. Humans are frighteningly quick to throw principles overboard. And the further the narratives of war and tyranny disappear behind the horizon of time, the more reckless people become. I am not claiming that things will necessarily turn out this way. I describe what could happen and note that nowhere is it explicitly stated that judicial or other sovereign decisions must always be made by humans (and if you look at many an administrative act, especially in mass proceedings, that has been created with “copy and paste” and at the bottom of the page it still says: “This administrative act has been made by machine and is valid without a signature”, you know that at least the final control and checking the result by humans is sometimes hardly worth mentioning). Adrian is working with his “automated judge” on the basis of traditional legal methods to replace human judges altogether, and Datzer’s platform world, whether the Chinese or the Facebook one, no longer needs even traditional schools of legal thought. It is far from a foregone conclusion that we will eventually get Adrian to facilitate our work, or Datzer to eliminate it. I ask what we should do with all of this? For example, the explicit inclusion of human beings as the ultimately responsible decision-makers in all areas of the three branches of government under the Basic Law and the state constitutions? As long as there were no technological possibilities to replace human action in these areas, such an idea would have seemed superfluous at best, probably even absurd. But time and technology have come a long way. A constitutional approach regarding the limits on the use of AI in the judiciary could be derived from Article 1 GG, which absolutely protects the dignity of 45

BVerfGE 22, 49 et seq.

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human beings as the highest legal good. The question is whether human beings are made the object of state action when they are judged by an artifact, i. e. subjected to an algorithm. In the case of a very crude AI, this can certainly be affirmed, but in the case of a refined AI that can simulate good and evil (weather model!), this may no longer be possible without some further thought. And by the way, humans do not become objects of state action simply because they are “subject to the law”, i. e. because they must abide by the law laid down by the state and correctly applied to them. Rather, they only become objects when citizens who are subject to the law become subjects (in the sense of serf or villein). Bibliography Adrian, Axel: Der Richterautomat ist möglich – Semantik ist nur eine Illusion, Rechtstheorie: Zeitschrift für Logik und Juristische Methodenlehre, Rechtsinformatik, Kommunikationsforschung, Normen- und Handlungstheorie, Soziologie und Philosophie des Rechts Vol. 48 No. 1, 2017, pp. 77 – 122. Dürig, Günter/Herzog, Roman/Scholz, Rupert (eds.): Grundgesetz Kommentar, Vol. VI, 99. EL, Munich 2022. Enders, Peter: Einsatz künstlicher Intelligenz bei juristischer Entscheidungsfindung, JA 2018, pp. 721 – 727. Epping, Volker/Hillgruber, Christian (eds.): Beck’scher Online-Kommentar zum Grundgesetz, 53rd edition, Munich 2022. Schmidt-Bleibtreu, Bruno/Hofmann, Hans/Henneke, Hans-Günter (eds.): Grundgesetz Kommentar, 15th edition, Cologne 2022.

V. Ethics, Health, and Law

Life and Death By Frauke Rostalski*

I. Introduction This investigation into practical questions of (legal) philosophy with regard to life and death is devoted to the normative assessment of human behavior in the context of the origin and ending of life. The scope of this examination is limited to human life, so that the treatment of animal life is not touched upon. In view of the breadth of the subject matter, it is not possible that this be an even remotely conclusive presentation and analysis. Consequently, we undertake a “foray” through our topic, with me the guide stopping along the way at her own discretion – in the hope of kindling the interest of the esteemed reader, at least to some extent.

II. Increasing Relativisation of the Protection of Life? A distinction is made between two phases in which human behavior in the context of life and death can be important to us as the subject of normative enquiry: the emergence as well as the ending of human life. Legal or ethical obligations can be directed at both the emergence of life and its preservation. Thus, it is crucial to determine the boundary lines of what is to be protected: When does human life begin, when does it end? This question must be asked early on in order to recognise the scope of our responsibility and duties. In doing so, our considerations are embedded in a general, overarching discourse that deals with the value of human life and possible changes in that value;1 i. e. the question arises: Is life increasingly worth less to us?2 Has it * Prof. Dr. Dr. Frauke Rostalski holds the Chair of Criminal Law, Criminal Procedure, Philosophy of Law and Comparative Law at the University of Cologne. She is a member of the German Ethics Council and was awarded in the category “Academia & Education” as European Women of Legal Technology 2020. 1 Rhonheimer, Abtreibung und Lebensschutz, p. 27: “The unborn, the newborn and the old, the dying and the suffering are increasingly at risk of losing the state’s protection of their lives.”; cf. Ahmann, Was bleibt vom menschlichen Leben unantastbar?, p. 527 as well as Ramsey, in: Shils (ed.), Life or Death. Ethics and Options, pp. 87 et seq. – The debate was particularly intense not least in the discussion of the theses in Singer, Praktische Ethik. On the right to life, see the contribution and critical analysis in Stenzel, Kein Recht auf Leben; as well as Ahmann, Was bleibt vom menschlichen Leben unantastbar?, pp. 223 et seq.

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even become subject to a logic of exploitation that degrades life into an accounting item in a social cost analysis? This is a question that can be asked by those who acknowledge the recent strengthening of the individual’s right to self-determination with regard to his own death, not least by the German Supreme Court (Bundesverfassungsgericht). Some view the scope of the “right to a self-determined death”3 critically as an expression of the relativisation of the protection of life.4 Similarly, the admissibility of various procedures that can be carried out on unborn life at the request of expectant parents can lead to the conclusion that the protection of life now takes a back seat to the interests of the other parties involved.5 A parallel assumption can also be found in the area of abortion.6 Similarly, the legalisation of certain forms of surrogacy,7 which has recently been advocated for in German law, could be seen as evidence of a devaluation of human life, since the child is reduced to a mere commodity in the trade between surrogate mother and intended parents.8 The central question chosen for this study, the possible change in the value of human life in our society, touches on the complex interplay of the protection of life with other fundamental rights worthy of protection, which plays a prominent role in the normative evaluation of behaviour in the emergence and preservation of life. It should therefore be taken up in the respective context in order to be able to draw a summary on this basis that spans all the topics dealt with.

2

It may seem paradoxical to ask this question in a time that should be safer than any previous epoch due to state safeguards. Nevertheless, we see ourselves exposed to a multitude of risks, some of them new, which justify critically questioning our social treatment of human life as a value. See also Rhonheimer, Abtreibung und Lebensschutz, p. 11. 3 BVerfGE 153, 182, 261 et seq. 4 Cf. Dabrock, Der Lebensschutz wiegt nichts: “The protection of life weighs nothing. The scales tilt as far as they will go in the direction of unrestricted autonomy.” 5 In this vein cf. Herdegen, JZ 2001, p. 778; Rhonheimer, Abtreibung und Lebensschutz, p. 20; cf. also Dreier, ZRP 2002, p. 377 on the concept of a staged prenatal protection of life as well as being critical of it, cf. Hoerster, JURA 2011, pp. 242 et seq. Cf. also Hoerster, Ethik des Embryonenschutzes, pp. 31 et seq.; Patzke, Die gesetzliche Regelung der Präimplantationsdiagnostik auf dem Prüfstand – § 3a ESchG, p. 286 et seq., 296. 6 Krones, in: Elger (ed.), Ethik und Recht in Medizin und Biowissenschaften, p. 60; Gropp/ Wörner, in: Erb/Schäfer (eds.), Münchener Kommentar, StGB, § 218 mn. 12; Di Fabio, in: Dürig/Herzog/Scholz (eds.), Grundgesetz-Kommentar, Art. 2 Abs. 2 S. 1 mn. 44. Cf. Rhonheimer, Abtreibung und Lebensschutz, pp. 11 et seq., which assesses all of the practices referred to as “dangers to respect for human life” and furthermore (pp. 19 et seq.) classifies a large number of new biomedical procedures dealing with human life as being characterised by the idea of “exploitation”. 7 See, for example, cf. Nationale Akademie der Wissenschaften Leopoldina and Union der deutschen Akademien der Wissenschaften, Fortpflanzungsmedizin in Deutschland – für eine zeitgemäße Gesetzgebung, pp. 83 et seq., as well as the Coalition Agreement 2021 – 2025, p. 116. 8 Cf. on the discussion Wapler, in: Schramm/Wermke (eds.), Leihmutterschaft und Familie, pp. 120 et seq. On surrogacy, see section IV. 1. below.

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III. Beginning and End of Human Life The contouring of the beginning and the end of human life defines the scope of possible legal as well as ethical obligations arising in this context. 1. Not least in view of the ever-increasing possibility of influencing human gametes, the question of how far the protection of life is brought forward into the genesis stage is significant. In law, it is disputed whether the protection of life begins with fertilisation of the egg9 or with nidation.10 Justifications for either preference differ widely. The same applies within the ethical debate, with its multitude of concepts and argumentation approaches, which cannot be explored in more detail here.11 The beginning of the protection of life is legally significant, as it is linked to relevant legal consequences such as the ability to inherit.12 Even extracorporeally generated life is not legally unprotected, as the Embryo Protection Act (ESchG) shows, which in particular contains criminal offences, for example the prohibition of surrogate motherhood or the ban on cloning.13 According to the prevailing view, protection of life under criminal law is guaranteed from the time of implantation in the uterus until the onset of contractions solely by the regulations on the termination of pregnancy (Schwangerschaftsabruch, §§ 218 et seq. StGB). Regarding this, some have argued that protection under the criminal law should be shifted forward to the beginning of independent viability,14 in particular by means of amending homicide offences – but 9

Cf. for example Herzog, JR 1969, p. 442; Beckmann, MedR 2001, p. 171; Mildenberg, MedR 2002, p. 298; Sacksofsky, KJ 2003, p. 278; Böckenförde, JZ 2003, p. 812. Cf. in addition Kloepfer, JZ 2002, pp. 420 et seq.; Schulze-Fielitz, in: Dreier (ed.), GG-Kommentar, Art. 2 Abs. 2 mn. 29; Patzke, Die gesetzliche Regelung der Präimplantationsdiagnostik auf dem Prüfstand – § 3a ESchG, p. 286 et seq., 269 with further citations. 10 Di Fabio, in: Dürig/Herzog/Scholz (eds.), Grundgesetz-Kommentar, Art. 2 Abs. 2 S. 1 mn. 24 et seq.; Cf. also BVerfGE 39, 1, 40; 88, 203, 251; Hofmann, JZ 1986, pp. 258 et seq.; Hufen, MedR 2001, p. 441; Dederer, AöR 127 (2002), p. 16; Satzger, Jura 2008, p. 427; Safferling, in: Matt/Renzikowski (eds.), StGB, § 218a mn. 13. 11 Cf. the overview of different approaches to justification in ethics, Lohmann, Jahrbuch für Recht und Ethik 2002, p. 86 et seq., as well as Baumgartner/Honnefelder/Wickler/Wildfeuer, in: Rager/Baumgartner (eds.), Beginn, Personalität und Würde des Menschen, p. 219 et seq; Ramsey, in: Shils (ed.), Life or Death. Ethics and Options, pp. 60 et seq. 12 Cf. Leipold, in: Säcker/Rixecker/Oetker/Limperg (eds.), Münchener Kommentar, BGB, § 1923 mn. 19 et seq. 13 See section IV. 1. below for more details on the protection of extracorporeally generated life. It is, of course, debatable whether the Embryo Protection Act (ESchG) actually serves to protect extracorporeally generated life. As explained in section IV. 1. below, the prohibition of surrogate motherhood is aimed precisely at preventing extracorporeally generated life from developing. This is particularly clear from the example of the ban on consumptive research on surplus embryos, the consequence of which is their destruction. 14 So among others Schumann/Schmidt-Recla, MedR 1998, pp. 502 et seq.; Eser/Weißer, in: Schönke/Schröder, StGB, § 218a mn. 44; Gropp, GA 2000, p. 7 et seq., 10 et seq.; Gropp/ Wörner, in: Erb/Schäfer (eds.), Münchener Kommentar, StGB, § 218 mn. 38; Silva-Sánchez, ZStW 2007, pp. 569 et seq. demands more equal protection and equal rights for embryos; Joerden, ZStW 120 (2008), pp. 17 et seq. refers to the beginning of brain activity. For a

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some also argue for a postponement of the legal protection of life until after the completion of birth.15 Deviating boundary drawings are related to the respective weighting of the legal position of other persons, namely those involved in assisting at birth, as well as the expectant mother. In order not to expose the latter to an increased risk of criminal liability, comprehensive protection of prenatal life through the criminal offence of homicide is rejected by the majority.16 The fact that this is a particularly risky process for the unborn child speaks against shifting the beginning of protection of life under criminal law to the time of completion of birth but rather for the onset of full protection of life to be from the onset of labour. This justifies exposing those involved to extensive criminal liability, even though the process of childbirth proves to be a difficult challenge with a high risk of error,17 especially for those persons. In detail, various questions can be raised in this context, such as the legal status of the beginning of human life in the absence of opening contractions, the rules on the performance of caesarean sections,18 as well as the suppression of significantly premature and therefore unwanted opening contractions, which cannot be dealt with in detail here. As a result, until the onset of labour,19 protection remains under the rules on termination of pregnancy or, under certain circumstances, under the offences of bodily harm.20 treatment that is overall rejecting, cf. Safferling, in: Matt/Renzikowski (eds.), StGB, § 212 Rn. 9. 15 Herzberg/Herzberg, JZ 2001, p. 1112; Neumann, in: Kindhäuser/Neumann/Paeffgen (eds.), Strafgesetzbuch Kommentar, § 211 mn. 10 with reference to Merkel, in: Kindhäuser/ Neumann/Paeffgen (eds.), Strafgesetzbuch Kommentar, § 218 mn. 40 et seq. 16 Cf. Schneider, in: Erb/Schäfer (eds.), Münchener Kommentar zum StGB, § 211 mn. 10. In cases of moving the time forward, the pregnant woman would in any case be exempt from criminal liability, according to Gropp, GA 2000, p. 14; Ingelfinger, Grundlagen und Grenzbereiche des Tötungsverbots, p. 119. 17 Cf. Schneider, in: Erb/Schäfer (eds.), Münchener Kommentar zum StGB, § 211 mn. 8 as well as BGHSt 65, 163, 169 et seq. (mn. 18) with further citations. 18 Cf. BGHSt 65, 163, 171 et seq. (mn. 21 et seq.); Merkel, in: Kindhäuser/Neumann/ Paeffgen (eds.), Strafgesetzbuch Kommentar, § 218 mn. 43; Schneider, in: Erb/Schäfer (eds.), Münchener Kommentar zum StGB, § 211 mn. 12. Cf. also Ingelfinger, Grundlagen und Grenzbereiche des Tötungsverbots, p. 133. 19 For the legal situation in these cases cf. BGHSt 31, 348, 356. 20 According to District Court of Aachen, Decision of 18. 12. 1970 – 4 KMs 1/68, 15 – 115/ 67, in: JZ 1971, p. 510. However, the system clearly argues against criminal liability for bodily harm. § 218 can only be understood as a concluding privileging special provision that also blocks recourse to offences of bodily harm. For criticism concerning the application of §§ 223 et seq. cf. Lüttger, Geburtsbeginn und pränatale Einwirkungen mit postnatalen Folgen. Bemerkungen zu BGH - 3 StR 25/83 vom 22. 4. 1983, NStZ 1983, p. 485; Jung, NStZ 1985, p. 317; Wissenschaftliche Dienste Deutscher Bundestag, Sachstand, Der Schutz des ungeborenen Lebens in Deutschland, WD 7 – 3000 – 256/18, pp. 5 et seq.; Gropp, GA 2000, pp. 4 et seq.; Schneider, in: Erb/Schäfer (eds.), Münchener Kommentar zum StGB, § 211 mn. 13. – On the internal inconsistencies of the current law in connection with the problem of so-called lateterm abortions, see for example Freund, in: Janich (ed.), Humane Orientierungswissenschaft, pp. 166 et seq.

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2. According to prevailing opinion in the legal literature, the end of human life is marked by so-called brain death.21 In § 3 (2) no. 2 TPG, this point in time is characterised by the final, irreversible loss of the overall function of the cerebrum, the cerebellum and the brain stem – determined in accordance with procedural rules that correspond to the state of the art of medical science. The criterion of irreversible loss of brain function has replaced the model of cardiovascular death in Germany. In terms of timing, this occurred in close connection with the official definition of irreversible loss of brain function as a safe criterion for death by a committee of the Harvard Medical School.22 However, the German Society for Surgery (Deutsche Gesellschaft für Chirurgie) had already used irreversible loss of brain function to mark death before the Harvard committee’s publication.23 This change was criticised from the outset due to the fact that bringing the time of death forward in this way makes it significantly easier to perform organ transplants from dead people.24 Against this background, the move towards the brain death model is sometimes seen as a functionalisation of the criterion of death, which is placed at the service of transplantation medicine.25 Not least the German Medical Association (Bundesärztekammer) nevertheless adheres to the brain death criterion.26 This is subject to an understanding of human death that characterises the end of the human being “as an organism in its functional wholeness”. The end of life is not defined by “the death of all parts of the body”. Rather, the organism is dead “when the individual functions of its organs and systems as well as their interrelationships are irrevocably no longer combined 21 Cf. Heun, JZ 1996, p. 213; Di Fabio, in: Dürig/Herzog/Scholz (eds.), GrundgesetzKommentar, Art. 2 Abs. 2 S. 1 mn. 22 et seq. Cf. also: Higher Regional Court of Frankfurt am Main, decision of 11. 07. 1997 – 20 W 254/95, in: NJW 1997, pp. 3099, 3100 et seq. with further citations. 22 Cf. concerning the reprint: Ad Hoc Committee of the Harvard Medical School, JAMA 1968, pp. 337 et seq. Cf. also Höfling, MedR 2013, p. 408 for criticism of the “ascetic level of reasoning” of the report. 23 Cf. Brandt/Angstwurm, Deutsches Ärzteblatt 115 (2018), p. 680. 24 Cf. in this connection: Ad Hoc Committee of the Harvard Medical School, JAMA 1968, pp. 337 et seq.; Heun, JZ 1996, pp. 213 et seq.; Wittwer, in: Esser et al. (eds.), Welchen Tod stirbt der Mensch?, p. 41; Schumacher, in: Esser et al. (eds.), Welchen Tod stirbt der Mensch?, p. 94 f.; Birnbacher, Tod, pp. 27 et seq. 25 For criticism, cf. for example Jonas, in: Jonas (ed.), Technik, Medizin und Ethik, pp. 219 et seq; Höfling, JZ 1995, p. 27; Höfling, in: Höglinger et al. (eds.), Hirntod und Organtransplantation, p. 83; Beckmann, NJ 2020, p. 299. Likewise Höfling, MedR 1996, pp. 7 et seq.; Merkel, Jura 1999, p. 115, who (also) opposes the assumption that the TPG contains a definition of death. This criticism is opposed by Schneider, in: Erb/Schäfer (eds.), Münchener Kommentar zum StGB, § 211 mn. 15 fn. 73 who points out that transplants do not benefit “pragmatic surgeons”, but are rather “in favor of the highest priority survival interests of organ recipients.” Cf. also Schäfer, NJ 2018, p. 192: “Thus, brain death was not invented in 1968 as an convenient definition, but was a milestone in medical history”. 26 Finally, cf. Bundesärztekammer, Deutsches Ärzteblatt 115 (2018), A 1836 with reference to the results of the working group “Bedeutung des irreversiblen Hirnfunktionsausfalls als sicheres Todeszeichen” of the Scientific Advisory Board of the German Medical Association, Brandt/Angstwurm, Deutsches Ärzteblatt 115 (2018), pp. 675 et seq.

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into the superordinate unit of the living being in its functional wholeness and are irrevocably no longer controlled by it”. This state occurs with the death of the brain in its entirety.27 The position of the German Medical Association is considered to be a biological understanding of death and has been criticised from that perspective.28 The criticism is directed both at empirical assumptions and against the underlying, essentially scientifically oriented image of human beings and the end of life. From a medical point of view, it is objected that despite irreversible loss of brain function, the human organism is still capable of maintaining a variety of functions, such as growth, stress reactions to external stimuli and even the carrying a pregnancy to term, for a sometimes not inconsiderable period of time.29 However, the German Medical Association counters that the respective preservation of functions is only possible because the person continues to receive intensive medical support and thus his blood supply is artificially maintained. Spontaneity and autonomy, on the other hand, are irreversibly lost.30 Of course, this cannot change the fact that the irreversible loss of brain activity cannot be perceived externally and that physical features are still present, such as heartbeat and body temperature and even the mobility of the body, which are regarded as signs of life.31 Following on from that, discordant models are held up against the criterion of irreversible loss of brain function for determining death, of which the approach presented most recently by Daniel Kersting will be examined in more detail here. Kersting develops an anthropologically reflected concept of human life, based on dimensions of biological and mentalistic concepts of life. In this way, the personal perspective on death is to be opened up, whereby Kersting argued on the basis of Plessner’s philosophical anthropology: “Man dies neither as an organism nor as an ,object of consciousness‘, but as a bodily person”.32 Kersting thus understands the human being with Plessner both as the “subject of his thinking and acting” and in his characteristics, which are “founded in his existence as a living being”. He bases the concept of the person on the idea of an “eccentric positionality”, which Plessner defines as the interplay of distancing from and simultaneously being bound to the living 27

Bundesärztekammer, Deutsches Ärzteblatt 90 (1993), A-2933. Kersting, Tod ohne Leitbild?, p. 28; Cf. in general the criticism of the so-called brain death model in President’s Council on Bioethics, Controversies in the Determination of Death, A White Paper by the President’s Council on Bioethics. 29 Cf. Beckmann, NJ 2020, p. 301; Höfling, MedR 2013, p. 410. 30 Brandt/Angstwurm, Deutsches Ärzteblatt 115 (2018), p. 679. 31 Cf. on the argumentation Kersting, Tod ohne Leitbild?, pp. 21, 29; Beckmann, NJ 2020, p. 301; the German Medical Association counters that mere dependence on food or fluid intake does not turn the people affected by it into corpses, because: “Corpses can neither extract oxygen from the air nor digest nutrients.” It also correctly points out that proponents of the brain death model do not conclusively justify why reflexes triggered by the brain are more significant than those based on other triggers, even if they are all unconscious. 32 Kersting, Tod ohne Leitbild?, p. 17 f. 28

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body. In Kersting’s model, corporeality is thus to be understood in precisely this “double aspectivity”33 – as an inseparable interweaving of “intrinsic bodily sensing” and “distance-generating objectifying reflection”. On this basis, the person is “the unity as well as the difference of body and mind”, for which the principle of autonomy plays a decisive role.34 Building on this, Kersting comes to significant conclusions about the criterion of death. “Human death is the death of the person in the sense of eccentric positionality”. However, this condition is not fulfilled by the mere cessation of brain activity. Rather, it requires the end of “expressive vitality”, which is physiologically characterised by the irreversible failure of the cardiovascular system. In contrast, people whose brain function has irreversibly ceased are to be “regarded as dying, but not as dead”.35 The strength of Kersting’s approach lies in the recognition of the human being in all his characteristics, which cannot be determined merely by natural science methods. Personhood is more than the function of specific organs. Moreover, Kersting’s idea of double aspectivity is convincing, adequately capturing the peculiar interconnectedness of body and mind in their levels of entanglement as well as in their detachment. At the same time, Kersting draws our attention to something that should not be lost sight of when determining the criterion of death. We are talking about a third perspective on the human being. Whether a person is dead is not determined merely according to scientific categories, but with the additional inclusion of the perception of others. As a person, a human being is placed into the world; he or she is part of society and thus relates back to others in his or her life. Whoever lives also stands in the circle of others; whoever leaves, leaves others behind. For the question of at what point in time someone has gone, it therefore also depends on the conditions under which he is no longer perceived as a person by others. This perspective is lost under the brain death criterion of the German Medical Association, which focuses centrally on the individual’s mental capacitiy. It can be seen in Kersting’s analysis that the loss of the mental capacitiy is not sufficient to cancel the perception of being a person by other persons. This speaks for the correctness of the cardiovascular model for determining human death, which not least has legal consequences with regard to the licit performance of organ transplant surgery on dead humans.36 Notwithstanding, a further postponement of the time of death could be demanded that goes beyond the criterion of irreversible loss of brain function.37 This could be 33

Plessner, Die Stufen des Organischen und der Mensch, pp. 288 et seq. On this subject cf. also Fischer, DZPhil 2000, pp. 265 et seq. 34 Kersting, Tod ohne Leitbild?, p. 19. 35 Kersting, Tod ohne Leitbild?, p. 20. 36 Permitting the removal of organs from a dying person would inevitably raise questions with regard to the extent of killing on demand, § 216 StGB. For a conceivable solution see Höfling, MedR 2013, p. 412. 37 Cf. in this respect the position according to which it is the mere partial brain death that counts, insofar as the consciousness of the human being is thereby permanently lost, summary with further citations in Anderheiden, KritV 2001, pp. 367 et seq.

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linked to the irreversible loss of consciousness,38 which can be characterised by failure of the cerebral cortex. This is also based on a specific understanding of the person, according to which cognitive performance is constitutive for the person. Consequently, “persistent vegetative state” patients would be classified as dead people, which at the same time could have consequences for their life-sustaining care.39 The arguments used against the traditional model of an irreversible loss of brain function, as advocated by the German Medical Association, can certainly be applied to this position. Particularly problematic is the narrowing of the view to brain activity in determining the concept of person. According to what has already been said, this is an anthropological reduction that ignores essential aspects of personhood in a factually unconvincing way. 3. Can our current landmarks for the beginning and end of human life, which are determined in law (partly in accordance with ethics), be interpreted as an expression of a (possibly increasing) relativisation of the protection of life? With regard to the scope of the offence of homicide for the protection of unborn life, such a conclusion seems premature. In this respect, it must be taken into account that the scope of the (criminal) legal protection of life influences the freedom of those who come into contact with unborn life. In this respect, the pregnant woman is the first person to be considered. If protection of life under the criminal law is extended further, especially with respect to homicide offences, this means at the same time an extension of criminal liability risks for the mother.40 Extended prenatal protection of life through the criminal law places restrictions on her freedom of self-determination and action. This does not in itself relativise the protection of life. Rather, the current legal situation reflects an effort to adequately take into account the tension between the protection of life and the pregnant woman’s right to freedom. It is debatable whether individual areas of regulation rightly emphasise such a pronounced priority of the rights of the pregnant woman.41 At the very least, however, in my view it does not seem necessary to extend the scope of protection of the criminal offences of homicide further than is currently the case in order to adequately protect the value of human life – which, of course, does not say anything about the regulations on termination of pregnancy.42 The definition of the criterion of death raises difficult questions. As long as the success of organ transplants essentially depends on whether the donor organ is removed from a person whose cardiovascular system has not yet ceased to function, 38

That the failure of the functions of consciousness represents the loss of personhood and thus the death of the human being understood as a bodily-spiritual unity, is presumed by Eser/ Sternberg-Lieben, in: Schönke/Schröder, StGB, Pre. §§ 211 et seq. with further citations, which, nevertheless, depend on the cessation of all brain activity for the confirmation of death. 39 Höfling, MedR 2013, p. 410. 40 This is no less true in the area of bodily harm offences – one only has to think of smoking or the consumption of alcohol during pregnancy. Cf. on this Hoven/Rostalski, MEdR 2023, pp. 448 et seq. 41 See section IV below for selected areas. 42 See section IV. 2. below.

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the normative determination of the time of death moves in a tense relationship between conflicting interests. The objection that the brain death criterion means a relativisation of the protection of life is thus quickly raised, since the end of life of the dying person is brought forward in order to accommodate third-party interests. At first glance, this objection could be countered by saying that it is precisely the protection of life that argues in favour of the brain death criterion: namely, the protection of the lives of those who are dependent on donor organs. However, in a liberal legal system conceived from the perspective of the individual, this is not a valid argument for reducing a dying individual’s protection of life. Those who argue in this vein place the protection of the life of the individual in the service of the protection of the lives of others – but such a decision as to priority is prohibited if one life is not to be ascribed a higher value than another life (for example, because of its remaining length or other factors).43 Against this background, it remains questionable whether mere reference to a different concept of person, which focuses on the mental capacity, is sufficient to dispel the impression of an unpleasant relativisation of the value of human life.

IV. Unborn Life Unborn life – not least in view of ever more advanced medical science – is in many respects the subject of practical (legal) philosophical considerations on the protection of life. According to our understanding of the term, this also includes extracorporeally generated life before implantation into the uterus. Whether our particularly legal protection regime with regard to this phase of life reveals signs of a relativisation of the value of human life, can be discussed on the basis of very different procedures, of which surrogate motherhood and termination of pregnancy will be examined in more detail below, taking account of their great practical significance and topicality. 1. Protection of Life and Maternal Surrogacy In Germany, inducing a surrogate motherhood is prohibited by law and sanctioned (§ 1 [1] no. 7 ESchG). The discussion about this legal situation has been rekindled as a result of the Coalition Agreement 2021 “Mehr Fortschritt wagen” (“Dare more progress”).44 According to this Agreement, the possibilities of legalising altruistic surrogacy are to be re-examined. In surrogacy, the surrogate mother carries a child to give it permanently to the intended parents after birth.45 The biomedical pro43 For the analogous debate within the framework of so-called triage, see the contributions in the anthology Hilgendorf/Hoven/Rostalski (eds.), Triage in der (Strafrechts-)Wissenschaft, as well as Hörnle/Huster/Poscher (eds.), Triage in der Pandemie. 44 Coalition Agreement 2021 – 2025, p. 92. 45 For this and possible terminological differences, see Schumann, in: Rieger et al. (eds.), Heidelberger Kommentar, 1. Terminologie mn. 1.

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cedure is subject to criticism for various weighty reasons.46 Of interest here is whether the legalisation of (altruistic) surrogacy is to be seen as a relativisation of the value of human life. The supposition that the performance of surrogate motherhood violates the dignity of the child-to-be points in this direction.47 The reason for this is the fact that in the contract between the so-called intended parents and the surrogate mother, the child degenerates into a mere object of a trade.48 The argument is based on the idea of a anticipatory protection of dignity, which also includes life that has not yet come into being. This is not unproblematic from a legal point of view,49 especially since such an anticipatory effect would have to affect not only dignity, but also other legal interests, or at least the life of the respective person. In the conflict between dignity and the protection of life, it is not convincing to downgrade the latter.50 However, it is obvious that behind the concern about degrading the child to a mere commercial object, there are considerations that can only be inadequately reflected in the legal concept of human dignity. We are talking about the empowerment of human beings with regard to the creation of new life – by means of procedures “designed” by humans, which sometimes differ quite considerably from natural biological reproduction. In this context, criticism can be directed against the (supposed) unnaturalness of this process as such – and thus formed an argument that is not very valid, at least in the legal context.51 However, the criticism can also go so far as to classify the artificial reproductive method of surrogacy as problematic because the transgression of certain limits of human influence on one’s own reproductive paths could generally result in negative social consequences.52 Against this background, reproductive medicine could be understood as an all too clear step into an increasingly disenchanted world in which even the emergence of human life through self-empowerment of the human being is being robbed of its moment of wonder. But those who no longer mar-

46

Cf. on the discussion Hoven/Rostalski, JZ 2022, pp. 482 et seq. with further citations. On the concept of human dignity, see the account in Rostalski, Der Tatbegriff im Strafrecht, pp. 37 et seq. with further citations. 48 Majer, NJW 2018, p. 2297; Kammergericht, Beschluss v. 1. 8. 2013 – 1 W 413/12 = BeckRS 2013, 14333, mn. 28; Bertschi, Leihmutterschaft, mn. 115; Kreß, FPR 2013, pp. 242 et seq. 49 Critical comments in this respect were made by Ernst, Am Anfang und Ende des Lebens, pp. 236 et seq.; Esser, Ist das Verbot der Leihmutterschaft in Deutschland noch haltbar?, pp. 263 et seq. For a philosophical perspective, cf. Hare, in: Leist (ed.), Leben und Tod, p. 153. 50 Hoven/Rostalski, JZ 2022, p. 483. 51 On the original naturalness arguments in general, cf. Rostalski, Das Natürlichkeitsargument bei biotechnologischen Maßnahmen, pp. 122 et seq. 52 Cf. even more far-reaching concerns with regard to undesirable developments in society as a whole as a result of legalising biotechnological procedures such as reproductive cloning or germ line therapy. Fukuyama, Das Ende des Menschen; Habermas, Die Zukunft der menschlichen Natur. 47

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vel at creation and its children may be inclined to appreciate all this less.53 Unbridled availability can diminish the value attached to it. If this is the deeper meaning of degrading the child brought into the world through surrogacy, its persuasiveness cannot be entirely dismissed. For the law, however, the question is whether prohibitions are tenable on this basis, which sometimes massively interfere with the reproductive freedom of individuals. In the end, the proportionality assessment is decisive in law54 – and thus not least the question of whether the current interest of concretely affected persons has greater weight than an empirically highly uncertain risk of a general downward trend in the value of individual life. At the same time, a problem regarding the principle of proportionality under constitutional law becomes clear, which cannot be discussed here: the difficulty of taking a long-term and broad perspective in the face of an acute concern, which considers both conceivable consequences in the future and the significance of specific practices for the development of society as a whole. The permission of procedures such as a surrogacy takes on a very different meaning depending on whether it is not merely a oneoff, but a building block of a general reassessment with regard to the permissibilitiy of the most diverse biotechnical methods of reproduction. In its narrowed focus on the constitutionality of individual state measures, such as the prohibition of certain reproductive practices, this broad perspective, which must be taken into account in the proportionality test, is all too quickly lost. 2. Protection of Life and Termination of Pregnancy The former criminal provision on advertising termination of pregnancy services (§ 219a StGB) was abolished in Germany in 2022. At the same time, the U.S. Supreme Court overturned a landmark decision from 1973 (Roe v. Wade), which permitted terminations of pregnancy during the period before a foetus is viable throughout the U.S. As a result, the law of the various individual states now applies, which is sometimes much stricter.55 Repeal of § 219a StGB has already led to discussions in Germany as to whether the rules on termination of pregnancy will next be subject to a revision – albeit in the sense of further liberalisation in favour of the legal position of pregnant women, which would further highlight the contrasting trends prevailing in the U.S. and Germany.56 The fact that the legalisation trend in Germany could also extend to §§ 218 et seq. StGB is suggested by efforts of the so-called “Ampelkoalition” (“traffic light coalition”) of SPD, Alliance 90/The Greens and FDP to set up a 53 This relationship is shown by Ramsey, in: Shils (ed.), Life or Death. Ethics and Options, pp. 60 et seq., especially pp. 70 et seq. 54 Generally on the principle of proportionality cf. Sommermann, in: Mangoldt/Klein/ Starck (eds.), Grundgesetz Kommentar, Art. 20 mn. 308 et seq.; on the reasoning, cf. BVerfGE 7, 330; 80, 109; 108, 129. 55 NY Times, Abortion is completely banned in 13 states. 56 Gallersdörfer, Tagesspiegel, 26. 6. 2022 (“Section 218 StGB is no longer up to date.”); s. also the Motion of the Left Party on the “Streichung des § 218 StGB”, BT-Drs. 20/1736, p. 2.

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“Commission on Reproductive Self-Determination and Reproductive Medicine” to examine “provisions regulating termination of pregnancy outside the German Criminal Code”.57 The regulation of abortion can shed light on the value placed on unborn life in relation to the legitimate interests of pregnant women.58 The latter have a fundamental right to freely dispose of their bodies even during pregnancy. Through statements such as “My body. My decision!” or “My belly belongs to me”,59 the current fundamental rights situation is anything but accurately reflected, which undermines the legal rights of the unborn child in a way that is neither ethically nor legally acceptable, given the narrow focus on the rights of the mother.60 For that reason, the notion of a “liberalisation”61 of the regulations on terminations of pregnancy is at the very least misguided, since it is necessarily only a matter of granting more freedom to the one (i. e. the mother) at the expense of the other – namely the embryo or foetus.62 57 Coalition Agreement 2021 – 2025, p. 92. Such developments have been feared for some time, see Rhonheimer, Abtreibung und Lebensschutz, p. 92, who considers this to be a logical consequence of positions of Hoersters, Abtreibung im säkularen Staat, and Singers, Praktische Ethik. 58 For a clear treatment of the current legal situation, cf. Gropp/Wörner, in: Erb/Schäfer (eds.), Münchener Kommentar zum StGB, § 218 mn. 12: “[…] lack of appreciation of unborn human life by society”. Cf. also Merkel, in: Kindhäuser/Neumann/Paeffgen (eds.), Strafgesetzbuch Kommentar, § 218 mn. 9, who, in observing public reactions to a court case in 1988/98 (!), stated, “that (honestly speaking) there was no awareness of the principal illegality of abortion among very many people.” Cf. also Eschelbach, in: v. Heintschel-Heinegg (ed.), Beck’scher Online-Kommentar, StGB, § 218 mn. 1: “The lack of criminal court decisions on §§ 218 et seq. StGB since 1995 shows, that the protection of life for the nasciturus is failing.” 59 Cf. Stern, “Wir haben abgetrieben”. 60 Rhonheimer, Abtreibung und Lebensschutz, p. 72 rightly points out that the mere reference to the woman’s right to self-determination does not answer the – crucial – question of how this relates to the right to life of the unborn. This is a central difficulty that reveals the fundamental dilemma of any regulation of abortion: Why does the woman’s right to selfdetermination outweigh the child’s right to life under specific circumstances (for example, with regard to the unborn child’s degree of development)? For more information on this discussion – which we will not go into here due to lack of space – see the different approaches and positions in Merkel, in: Kindhäuser/Neumann/Paeffgen (eds.), Strafgesetzbuch Kommentar, § 218 mn. 22 with fn. 37 (at least until the 12th week the embryo is “completely insentient creature”; however, for its [also legal] protection, it is the subjective vulnerability that is important.); Thomson, in: Leist (ed.), Um Leben und Tod, pp. 107 et seq.; Tooley, in: Leist (ed.), Um Leben und Tod, pp. 157 et seq. (Human foetuses and newborns have no right to life according to him); Hoerster, Abtreibung im säkularen Staat, p. 128 (there is “no reason apparent to grant the fetus a right to life by social morality or legal order.”). The debate mostly revolves around the question of whether or from what point in time and with what consequence the unborn could be granted the status of a person. See for example Rhonheimer, Abtreibung und Lebensschutz, pp. 92 et seq. (who, of course, is in favour of person status for the unborn child); that is opposed by Singer, Praktische Ethik, p. 246. 61 Ramsey is also critical, cf. in: Shils (ed.), Life or Death. Ethics and Options, p. 88. 62 The term foetus is used for the time from the development of the internal organs, which takes place in the 9th week of pregnancy (Spektrum, Encyclopedia of biology, “Fetus”).

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Thus, this is “more liberal” at best from a particular perspective. However, because in the context of termination of pregnancy at least two perspectives are both important in terms of fundamental rights, the arguments should be expressed in clear language. A particular right to termination of pregnancy is thus not more or less liberal, but expresses the current social distribution of spheres of freedom between mother and child-to-be. This distribution can then be designed to be more or less life-protecting or more self-determination-friendly. We are experiencing a trend in Germany at political and social levels towards strengthening the mother’s right to self-determination. In the Coalition Agreement of 2022, a clear stance was taken, stating that “so-called street harassment by anti-abortion activists […] should be countered63 by effective legal measures”. What exactly is meant remains unclear;64 what is clear, however, is the thrust: pregnant women should be less impaired in her decision to end the pregnancy than they have been up to now. The desire to make termination of pregnancy part of medical education and training65 (which promises greater medical support in women’s decision-making process) fits in with that, as does the statement by the Federal Minister for Family Affairs, Paus, that termination of pregnancy is not an issue for the criminal law.66 However, the assumption that the mother’s right to self-determination would be better taken into account through increased freedom in connection with the performance of terminations of pregnancy is already questionable. It presupposes that decisions to terminate one’s own pregnancy have to be seen as an expression of free selfdetermination. This cannot be presumed without reservation. Rather, it must be taken into account that this decision is usually made in a “precarious self-determination”.67 On the one hand, this means that the situation from which the decision about continuing the pregnancy is made is often in the context of a specific environment of expectations that is shaped by the ideas of very different actors. In addition to the biological father, the expectations of other family members and other relatives are expected to be considered. There is also a specific social setting within which pregnancies are more or less approved depending on the particular circumstances. At the same time, perceptions of what is normal can arise, which in turn can influence the mother’s decision and thus her self-determination, which takes place more or less on a 63

Coalition Agreement 2021 – 2025, p. 92. The legal opinion “Möglichkeiten gesetzlicher Neuregelungen im Konfliktfeld ‘Gehsteigbelästigungen’” commissioned by the Heinrich Böll Foundation provides a first impression of regulations on terminations of pregnancy, in which, among other things, a new offence is proposed, for the assessment of which (especially with regard to the vagueness of the wording and the precariously low threshold) there is no room here. But for more detail, cf. Rostalski, libra-rechtsbriefing. 65 Coalition Agreement 2021 – 2025, p. 92. 66 Domradio, Abtreibung als Teil der Ärzte-Ausbildung?. 67 For the term, see the statement of Deutscher Ethikrat, “Suizid – Verantwortung, Prävention und Freiverantwortlichkeit”, p. 104. See also BT-Drs. 18/5373, p. 11. 64

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conscious level. On the other hand, the precariousness of the decision-making situation is indicated by the fact that pregnant women cannot fully grasp the consequences of the decisions they face. How it will affect her, her psyche and her soul not to have carried her child to term is something she cannot fully assess at this point. Even a decision that is initially personally perceived of as more or less unproblematic may be deeply regretted at a later time. This dimension of life cannot be estimated; at the same time, it makes it difficult to presume that the decision to terminate a pregnancy is an unreservedly free decision, especially since it is a decision that affects a significant asset in the form of human life and therefore weighs particularly heavily. Precarious self-determination remains self-determination, but it is on the borderline of what can no longer be classified as freely responsible. In this fragile situation, there is a particular danger that the mother’s freedom of decision will be encroached upon by others.68 At the same time, this relativizes the weight of the mother’s legal position which is in conflict with the child’s interest in the protection of life. The difficulty of the pregnant woman’s decision-making situation reveals the onesidedness of a debate in which the legality of termination of pregnancy is presented as a balancing of the spheres of freedom of mother and child. The correct approach would be to broaden the view to include questions such as: What are the conditions for raising a – possibly disabled – child (alone) in our society? Those who take this perspective will quickly realise the unsustainability of existing structures in which single mothers are exposed to an increased risk of poverty,69 childcare is not taken into account in the calculation of pensions, and suitable external childcare depends on financial standing, and so on. At the same time, our gaze falls on the still existing role models of “good motherhood” and “family”, and on a logic of utilisation that is also morally internalised without reflection by most, within which breaks from education and work due to childcare are not forgiven, in which the weak are the social losers, which is why neither programmes to support single mothers, their children, the disabled and poor people are at the top of the political agenda. Community is not thought of as inter-humanity and solidarity across social inequality, strength and weakness. Since community in its current meaning functions according to different rules, the narrative of strengthening self-determination for termination of pregnancy fits in much better, as it excludes from the outset those who would most likely not have a place in society’s midst in the further course of their lives. Against that background, an extension of permissible terminations of pregnancy beyond the current legal situation proves to be a social delegation of responsibility that can hardly be justified ethically in two respects: On the one hand, we shift our responsibility to the pregnant woman, to whom we suggest the supposed normality of this decision by widely opening up her freedom of choice for termination of pregnancy: In case of doubt, against the developing life. On the other hand, in this way we evade our own responsibility towards the pregnant woman, whom we not only leave 68 69

Höfling, Zeitschrift für medizinische Ethik 2013, p. 175. Hübgen, Armutsrisiko alleinerziehend, pp. 151 et seq.

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alone in her precarious decision-making situation, but to whom we also signal that a decision in favour of having the baby in the long run goes hand in hand with not being able to expect social solidarity or other forms of support: After all, she could have made a different decision with our approval. At the same time, we are failing in our duty to enable all members of our society to participate equally – and especially those who, as children, are themselves too weak to protect their rights without help due to economic circumstances or disability.70 Current efforts to further strengthen the right of pregnant women to decide freely whether to terminate their pregnancies should therefore be met with caution. It seems preferable – especially under the current regulations of termination of pregnancy – to strengthen the rights of the weakest in our society: the children of single mothers or families living in particularly weak economic circumstances; they are women for whom we must enable equal participation in society despite an early pregnancy or a pregnancy that was “unfavourable” for other reasons given our (neoliberal) logic of exploitation. What does it trigger in a society when it signals that responsibility even for future life exists only under the reservation of the greatest possible freedom of acceptance for pregnant women? That the greatest possible flexibility should still penetrate into this area of deepest interpersonal connection – and all this to accommodate a trend motivated by the interests of a specific economic order, according to which the birth of a child is classified as an individual “mistake” because it causes a life to acquire rough edges and thus obviously creates unwanted friction in a system of smooth surfaces.71

V. The Decision Against One’s Own (Continued) Life We are taking a long turn. Birth was (hopefully!) many, many years ago, and the dangers of life lurking along the way have all been circumnavigated more or less successfully. Much could be said about them in a treatise on life and death, for which we lack the space here. We will only focus on one specific situation, which, in view of the topicality and social significance of the issues involved, deserves to be the final section of this paper: The decision against one’s own (continued) life. Do we allow it or its implementations to happen? And: Are others allowed to support it or even implement it independently – so to speak vicariously? These questions are particularly controversial in philosophy as well as in law. There are sometimes comparable strands of argumentation, but they do not always lead to the same conclusions – in some cases, considerations are borrowed from the 70 Rhonheimer, Abtreibung und Lebensschutz, p. 84 points out that the permissibility of abortion has a justice dimension: our treatment of the unborn must not amount to discrimination against them. 71 On the significance of the smooth surfaces in modern times, cf. Han, Die Errettung des Schönen, pp. 26 et seq.

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philosophical debate that are not used in law to justify a ban on suicide, but certainly to justify a ban on assisted suicide. Nevertheless, it is worthwhile to present an interdisciplinary overview, which, in view of the lack of space, has been greatly oversimplified: Is one’s own life disposable? The answer to this question depends decisively on whether a human being is defined as a person in a community with others, if necessary also in relation to a metaphysical entity. If a human being is God’s creature72 and his life is a divine gift,73 it is obvious not to grant him any possibility of disposing of that life.74 Ramsey emphasises that man was merely the “steward” of his own life.75 Whoever decides against life expresses a fundamental doubt that God is trustworthy. Christian faith is directed towards the annihilation of death as the “last enemy”; surrendering to the latter would be tantamount to “desertion”.76 Even without reference to a metaphysical entity, a prohibition on disposing of one’s own life can be justified. There are essentially two further lines of argumentation for this – either reference to the legal position of others or to legal obligations that the bearer of legal rights holds against himself. The position of other members of society could be affected by an individual’s decision to end his or her life insofar as the entire population is weakened in this way.77 In particular, if a person can contribute to communal goals, his or her death has the effect of a loss for all. It is also collectivist to argue that the suicide of a member of society triggers deep negative emotions in others from which they must be protected. According to this understanding, “breaking the taboo”78 of suicide has a detrimental effect on the constitution of society as a whole; it is accompanied by tendencies towards erosion that could endanger recognition of the protection of life and

72 See the position paper of the German Lutheran Church (Evangelische Kirsche in Deutschland), Sterben hat seine Zeit. Critical to that: Tiedemann, KritV 2019, pp. 142 et seq.; Wittwer, Das Leben beenden. Über die Ethik der Selbsttötung, pp. 17, 164. 73 Ramsey, Ethics at the Edges of Life, p. 146. 74 This position is pointedly summarised by Kuhse, in: Leist (ed.), Um Leben und Tod, p. 94 (which admittedly does not agree with this): “[…] Killing is not an act that is either wrong in itself or morally wrong because of what it does to the victim, but killing is simply wrong because it violates the will of God.” Cf. also the critical account in Lohmar, Zeitschrift für philosophische Forschung 2006, pp. 59 et seq. as well as Kodalle, Zeitschrift für evangelische Ethik 2005, p. 224. 75 Ramsey, Ethics at the Edges of Life, p. 147 (“steward”). 76 Ramsey, Ethics at the Edges of Life, p. 147. Ramsey does not, of course, conclude that any form of shortening of life (e. g. by administering painkillers to a terminally ill person) is impermissible, ibid., pp. 148 et seq. 77 Rejecting the establishment of an obligation, “to continue to live in the interest of the community”, Baumann, in: Anderheiden et al. (eds.), Handbuch Sterben und Menschenwürde, p. 640. 78 Kubiciel, JZ 2009, p. 602 rightly points out that not every desire to commit suicide or every killing on demand is likely to constitute breaking a taboo. Similarly, criminal law may be less effective than it may seem to some in tabooing certain practices that even include thirdparty killing.

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thus weaken the prohibition of killing,79 if not the cohesion and thus the functioning of the state.80 Those who do not focus on the sphere of freedom of others can come to the conclusion that suicide is a violation of a legal obligation that exists in relation to oneself.81 Köhler derived this from the thought that legal obligations, such as the prohibition on harming others, “would be without a counter-position if others were allowed to destroy themselves without restriction”.82 At the core of his reasoning is the assumption that “objective law” is “founded on the unconditional existence of selfdetermined subjects through reason”. “From this follows necessarily the obligatory self-preservation of the person in relation to both himself and to others, since otherwise existence, insofar as it depends on us, would become reasonless”.83 The law has clearly positioned itself in the debate on the disposability of one’s own life: Freely responsible suicide is not forbidden to the individual;84 criminal liability for an unsuccessful suicide attempt is therefore out of the question. For a long time, assisting in a freely responsible suicide was not criminal conduct. More recently, this legal situation was shaken: The legislature increasingly came to the view that assisted suicide required (criminal) regulation. This was a reaction to changed social conditions85, which (criminal) law was supposed to counteract. For example, we are dealing with an increasingly ageing society that is encountering a significant improvement in medicine, especially palliative medicine. This means that today we are much more successful than decades ago in keeping people alive for a very long time, even if important bodily functions fail. So it is not just that more and more people are getting older and older – at the same time, the elderly can be kept alive longer and longer, if necessary, to a far greater extent by means of artificial measures. De79

The argumentation is widely used to legitimise the criminal prohibition of killing on demand, cf. Neumann, in: Kindhäuser/Neumann/Paeffgen (eds.), Strafgesetzbuch Kommentar, § 216 mn. 1. It can be applied to suicide for the sole reason that the boundaries between killing oneself and killing others are blurred; this not least in view of the recent Federal Court decision, of 28. 6. 2022 – 6 StR 68/21, in: NJW 2022, 3021, 3022 mn. 15, which questions the naturalistic criterion of delimitation of the last act of implementation insofar as this is overlaid by normative valuations in the court’s reasoning. 80 Summarising in the same vein, cf. Ingelfinger, Grundlagen und Grenzbereiche des Tötungsverbots, pp. 183 et seq. with reference among others to Weigend, ZStW 98 (1986), p. 66. 81 Cf. Köhler, Jahrbuch für Recht und Ethik 2006, p. 436 et seq. on different philosophical approaches that assume a corresponding legal obligation to self-preservation. In this vein, see also the references in Kubiciel, JZ 2009, pp. 604 et seq. 82 See fn. 106 below on the fact that Köhler’s reasoning raises doubts as to whether the legal obligation assumed by him is not ultimately based solely on the interests of third parties, who should not be deprived of the “counter-position” in the relationship of mutual recognition. 83 Köhler, Jahrbuch für Recht und Ethik 2006, pp. 436, 438 with a large number of further references. 84 On the rejection of the position that suicide is “intrinsically immoral and absolutely forbidden” from the perspective of ethics, cf. Lohmar, Zeitschrift für philosophische Forschung 2006, pp. 62 et seq. 85 Cf. Bormann, in: Uhle/Wolf (eds.), Entgrenzte Autonomie, pp. 9 et seq.; Dabrock, Zeitschrift für Evangelische Ethik 2015, p. 123.

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spite this, the state of care has been on a downward trajectory for years, while in the private sphere, too, the support networks that have kept the elderly and the sick alive in the past are weakening. This change is taking place in a society that feels less and less responsive to the offerings of various religious communities. This goes hand in hand with a change in the view of the palpability of human life – what was previously considered by many to be undisposable due to moral convictions is now considered to be disposable. Self-determination and the desire for control are playing an increasingly important role.86 Many people wish to be able to shape every phase of their lives with as much self-determination as possible and also extend this desire to their own deaths.87 One might criticise this development as illusory in the sense that there is always – especially with regard to one’s own death – an area that is uncontrollable.88 This is supported by the fact that the process of dying is not limited to an external or physical process, but also includes a letting go that seems to contradict the desire for complete control.89 Regardless of this criticism in recent years, there has been a growing desire for (more) self-determination with regard to one’s own death. This must be normatively contained if the law is not to stand in problematic contrast to the lived sense of values of the legal community in a sensitive area of life. In this context, it was perceived as problematic by many sides – not least the legislator – that people with their suicide wish increasingly asked others for help. As physicians often defined their field of activity differently and for a long time were exposed to the risk of professional sanctions in cases of assisted suicide,90 a gap arose that was filled by so-called assisted suicide organisations (Sterbehilfeorganisationen). Their activities, however, were widely viewed so critically that the paradigm of impunity of assisted suicide, which had prevailed for a long time, was broken91:Thus § 217 StGB was amended to make the professional promotion of suicide a crime. That provision, which was controversial from the beginning, was struck down by the Federal Constitutional Court because it was incompatible with the constitution.92 Today, legislators and society are struggling to find a solution to the question of how we should deal with cases of assisted suicide in the future.93 Both procedural 86

Cf. Wassermann, in: Winau/Adler (eds.), Tod und Sterben, pp. 381, 382. On the need for control cf. Etzersdorfer, in: Küchenhoff et al. (eds.), Sich selbst töten mit Hilfe Anderer, p. 69. 88 Cf. Römelt, Zeitschrift für katholische Theologie 1998, pp. 295, 300, which refers to the “ultimate contingency of existence”. 89 Birnbacher, Tod, p. 68, sees letting go as the first stage of the wish for life to end. 90 The Model Professional Code of Conduct for Physicians provided for a ban on assisted suicide until 2021. 91 Cf. BT-Drs. 18/5373, p. 9. 92 BVerfGE 153, 182, 308 (mn. 337). 93 For an overview of the proposed legislation under discussion, cf. Rostalski, GA 2022, p. 209. 87

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rules and criminal law provisions are under discussion. We will not go into the details here.94 The question here is rather: Is the strengthening of the right to self-determination with regard to one’s own death to be seen as a relativisation of the value of human life, as some assumed following the Supreme Court ruling on the former § 217 StGB.95 The Federal Constitutional Court located the “right to self-determined dying” within the general right of personality (Art. 2 [1], Art. 1 [1] GG).96 This includes the freedom to choose suicide. And: “The individual’s decision to end his or her life in accordance with his or her understanding of the quality of life and the meaningfulness of his or her own existence is to be respected by the state and society, as an act of autonomous self-determination.”97 The individual’s self-determined disposal over his or her life is a “direct expression of the idea of autonomous personal development inherent in human dignity”.98 The right to self-determined dying also includes the freedom to seek help from third parties and to make use of the help offered.99 Does the Federal Constitutional Court, through this ruling, devalue human life in favour of an exaggerated understanding of freedom of self-determination? This is the line of argument taken by those who couched the debate on the permissibility of assisted suicide in the context of arguments within the “logic of valorisation”.100 What is meant is that far-reaching liberality in dealing with suicide is the hallmark of a society that assigns value to people depending on their usefulness to the collective. Those who are old, ill or both are more of a burden to society than they are of use to it. The decedent’s suicide is therefore the logical consequence of the thinking of valorisation that underlies such a community, which, however,

94

Rostalski, JZ 2021, pp. 482 et seq. Cf. Eberbach, MedR 2022, p. 455; Neumann, NJOZ 2021, p. 385; Schlink, ZRP 2022, p. 126. 95 Dabrock, “Der Lebensschutz wiegt nichts.”; Konrad Adenauer Foundation, “Der Grundwert des Lebens steht zur Disposition”; Sommer, Werte. Warum man sie braucht, obwohl es sie nicht gibt, p. 75, notes that those who ask about the value of life have already submitted to the capitalist logic of exploitation. 96 BVerfGE 153, 182, 261 (mn. 208). By normatively linking suicide to the general right of personality, the Federal Constitutional Court is turning away from dissenting voices in the literature, which consider suicide either to be part of the general freedom of action. (Dreier, JZ 2007, p. 319 with further citations; Dreier, in: Dreier (ed.), GG-Kommentar, Art. 2 Abs. 1 mn. 29; Schulze-Fielitz, in: Dreier (ed.), GG-Kommentar, Art. 2 Abs. 2 mn. 32) or of right to life and physical integrity. (Höfling, in: Kment/Jarass et al. (eds.), Das Zusammenwirken von deutschem und europäischem Öffentlichen Recht, pp. 199 et seq.). For a different approach – as today the Federal Constitutional Court – cf. Wassermann years earlier, in: Winau/Adler (eds.), Tod und Sterben, pp. 387 et seq., 391. 97 BVerfGE 153, 182, 263 (mn. 210). 98 BVerfGE 153, 182, 264 (mn. 211). 99 BVerfGE 153, 182, 264 (mn. 213). 100 For example, Bauer, in: Hoffmann et al. (eds.), Was heißt: In Würde sterben?, p. 73, on the “abuse argument”, cf. for example Gutmann, Ethik Med 2002, pp. 180 et seq.

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is in intolerable contradiction to elementary basic assumptions of a free community, namely human dignity and the equal value of all human life. However, this criticism misses the point of the question formulated here. It may be true that a society oriented towards economic profit tends to relativise the value of individual life in favour of collective interests. Corresponding tendencies, if they appear, must be countered. This may also result in the need for state regulation if the societal setting within which suicide decisions are made has such a negative effect on the freedom of the individual that a self-determined decision is not possible or is seriously endangered. However, this does not yet disprove the correctness of the Federal Constitutional Court’s conclusion that the individual’s right to self-determination also extends to his or her own life and that life is therefore at the disposal of its bearer. It is a downstream question as to what challenges self-determination is exposed to in the context of the decision to commit suicide and whether this should be responded to with laws to saveguard free responsibility. First and foremost, it must be clarified whether the Federal Constitutional Court is correct at all. The question refers to a parallel debate in law as to whether there is an inalienable core of human dignity that is inviolable even for its individual bearer101 – i. e. the latter may not have certain practices performed on him or her, even if this is according to his or her wishes, because this would violate his or her dignity.102 In a legal system based on the self-determination of the individual, this argumentation cannot be convincingly defended.103 Ultimately, it amounts to a paternalistic practice that patronises the individual in the interest of collective views (which ones?).104 This applies both to a supposedly inviolable core of human dignity and to the protection of life. The individual’s freedom of self-determination must not be played off against his or her other rights. The state has a duty to respect everyone’s freedom “over and for themselves”.105 It is in itself an attack on the dignity of the individual to have third party ideas imposed on him or her about what is to be understood by a “correct” or “dig101 For example, Goos argued against equating self-determination with human dignity, in: Feinendegen et al. (eds.), Menschliche Würde, pp. 81 et seq. On the discussion cf. also Kämpfer, Die Selbstbestimmung Sterbewilliger, pp. 213 et seq. 102 In the same vein, cf. Rixen, Der Staat 2022, p. 150, who opposes the idea that freedom is no more than “individual arbitrariness, preferably without limits, beyond good and evil.” That is because “If the dignity of man […] is exhausted in such a one-dimensional concept of freedom, Article 1 (1) GG is disposable.” However, insofar as individual freedom means simply self-injury, this cannot be legally restricted on the grounds of any kind of human dignity, if its core in the form of freedom of self-determination is not to be replaced by (any) third party moral values of “good and evil”. 103 Rostalski, Das Natürlichkeitsargument bei biotechnologischen Maßnahmen, pp. 144 et seq. 104 Kersten, Das Klonen von Menschen, p. 510. Cf. Höfling, Offene Grundrechtsinterpretation, pp. 125 et seq.; Geddert-Steinacher, Menschenwürde als Verfassungsbegriff, pp. 89 et seq.; Hufen, NJW 2001, pp. 850 et seq.; Kämpfer, die Selbstbestimmung Sterbewilliger, pp. 214; Dreier, in: Dreier (ed.), GG-Kommentar, Art. 1 Abs. 1 mn. 149 et seq. 105 v. Olshausen, NJW 1982, pp. 2221 et seq.

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nified” way of living and ending life.106 This assessment is in line with the decision of the Federal Constitutional Court on the former § 217 StGB. A devaluation of the protection of life as a result of the strengthening of self-determination with regard to one’s own death that goes hand in hand with the ruling is therefore by no means a likely outcome. In contrast to the context of termination of pregnancy, for example, the issue here is not a collision of legal interests of different holders of legal interests. Rather, the question is raised as to what the inner relationship is between life and selfdetermination relating to the same person. It should be noted that self-determination includes the freedom to express one’s own ideas about oneself.107 It contradicts this basic assumption if precisely those areas that are fundamental to one’s own selfimage should be excluded from self-determination. For many people, this includes the idea of how they will leave this world. If the person concerned decides to commit suicide, this may be deplored or even disapproved of by others. However, as long as he or she is not subject to any relevant lack of will and is therefore free to decide on his or her fate, this decision is to be respected as an expression of his or her outwardly perceptible striving for the realisation of his or her own self-image.108 This does not devalue life. Rather, it takes into account the insight that life does not exist without 106

Against this background, it is not convincing to frame one’s own self-preservation as a legal obligation, cf. Köhler, Jahrbuch für Recht und Ethik 2006, p. 438. The key concept in his argumentation is reason – without the duty to self-preservation, the “Dasein, soweit es an uns liegt, vernunftlos”. In a legal system that is organised by the “Prinzip universaler” (ibid. p. 429), this conclusion does not seem compelling: according to Köhler, self-determination also includes the freedom to behave in a self-harming way – the (certainly difficult to delimit) freedom of self-determination. Similarly Grünewald, Das vorsätzliche Tötungsdelikt, p. 295. He draws the line when “the external conditions of existence of human rights self-determination in their potential for development at all with certain totality” (ibid. p. 440) are negated. But why should this be “unreasonable” per se? Doesn’t this have to do with a (paternalistic) standard of “reason” oriented towards third parties’ ideas of right and wrong? And if he emphasises that the other person should not be deprived of the “opposing position” in the mutual relationship of recognition – is it not then solely a matter of third-party interests that are served by the respective duty? What then remains of the legal duty against oneself if it ultimately serves to satisfy the interests of others (on this cf. the third party reference in the explanatory statement of Köhler also Kubiciel, JZ 2009, p. 604 with further citations; Lohmar, Zeitschrift für philosophische Forschung 2006, p. 73 [Verletzung der “Menschheit”])? If the character of the legal obligation to self-preservation assumed by Köhler is disclosed as protecting third parties, at least with regard to certain acts of damage, one can justifiably ask why the “counter-position” is taken away from the other person in the mutual relationship of recognition – a person who reserves the right to no longer participate in the mutual relationship of recognition under certain conditions (such as serious illness, etc.) can also be the object of third-party legal obligations. The “counter-position” under reservation also remains a “counter-position”. – For further information on Köhler’s reasoning approach, especially with regard to the acceptance of a legal obligation, see Grünewald, Das vorsätzliche Tötungsdelikt, pp. 291 et seq. 107 Cf. the position paper of Deutscher Ethikrat, Demenz und Selbstbestimmung, pp. 45 et seq. 108 On the standard of freely responsible decisions, see Rostalski, JuS 2015, p. 527; Freund/ Rostalski, Strafrecht Allgemeiner Teil, § 1 mn. 53, § 5 mn. 75 et seq.

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the associated person and his or her ideas of what constitutes his or her life as an enabling space for the development of personality.

VI. Conclusion Finally, once again to the question that runs through this enquiry: Are we living in a time in which life is worth increasingly less? The short journey through ethical and legal problem areas in the context of life and death leaves no clear picture. Only one thing seems clear: the concern that the value of human life is being relativized in the maelstrom of new biotechnological possibilities and a zeitgeist aimed at making former taboo areas of humanity as accessible as possible must be taken seriously. Life has been and continues to be exposed to risks that arise precisely from our own way of dealing with it. If we change it, it is worthwhile to pause and ask: Have our values shifted in a way that is unacceptable for a liberal constitutional state that is thought of in terms of the individual? The answer does not have to be “yes”. On the contrary, changes can also be an expression of improvements precisely in the legal position of the individual. But if that is not the case, countermeasures are needed. In view of the special value of life as a legal asset, the amount of attention required with regard to these questions could hardly be higher. Bibliography Ad Hoc Committee of the Harvard Medical School: A definition of irreversible coma. Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, JAMA 1986, pp. 337 – 340. Ahmann, Martina: Was bleibt vom menschlichen Leben unantastbar? – kritische Analyse der Rezeption des praktisch-ethischen Entwurfs von Peter Singer aus praktisch-theologischer Perspektive, Münster 2000. Anderheiden, Michael: “Leben” im Grundgesetz, KritV 2001, pp. 353 – 381. Bauer, Axel W.: Notausgang assistierter Suizid? Die Thanatopolitik in Deutschland vor dem Hintergrund des demografischen Wandels, in: Hoffmann, Thomas Sören/Knaup, Marcus (eds.), Was heißt: In Würde sterben? – Wider die Normalisierung des Tötens, Wiesbaden 2015, pp. 49 – 78. Baumann, Ursula: Suizid: Soziale Relevanz und ethisch-moralische Beurteilung, in: Anderheiden, Michael/Eckart, Wolfgang U. (eds.), Handbuch Sterben und Menschenwürde, Vol. 1, Berlin/Boston 2012, pp. 629 – 646. Baumgartner, Hans Michael/Honnefelder, Ludger/Wickler, Wolfgang/Wildfeuer, Armin G.: Menschenwürde und Lebensschutz: Philosophische Aspekte, in: Rager, Günter/Baumgartner, Hans Michael (eds.), Beginn, Personalität und Würde des Menschen, 2nd edition, Freiburg (Breisgau)/Munich 1998, pp. 161 – 243. Beckmann, Rainer: Der “Hirntod” – kein überzeugendes Todeskriterium, NJ 2020, pp. 298 – 302.

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Hoven, Elisa/Rostalski, Frauke: Gedanken zu einer Regulierung leibesfruchtschädigender Verhaltensweisen der werdenden Mutter während der Schwangerschaft, MedR Vol. 41, 2023, pp. 448 – 451. Hoven, Elisa/Rostalski, Frauke: Zur Legalisierung der Leihmutterschaft in Deutschland, JZ 2022, pp. 482 – 491. Hübgen, Sabine: Armutsrisiko alleinerziehend. Die Bedeutung von sozialer Komposition und institutionellem Kontext in Deutschland, Berlin/Toronto 2020. Hufen, Friedhelm: In dubio pro dignitate – Selbstbestimmung und Grundrechtsschutz am Ende des Lebens, NJW 2001, pp. 849 – 857. Hufen, Friedhelm: Präimplantationsdiagnostik aus verfassungsrechtlicher Sicht, MedR 2001, pp. 440 – 451. Ingelfinger, Ralph: Grundlagen und Grenzbereiche des Tötungsverbots, Cologne/Munich 2004. Joerden, Jan C.: Beginn und Ende des Lebensrechtsschutzes, ZStW Vol. 118, 2006, pp. 11 – 21. Jonas, Hans: Gehirntod und menschliche Organbank. Zur pragmatischen Umdefinierung des Todes, in: Jonas, Hans (ed.), Technik, Medizin und Ethik, Frankfurt am Main 1985, pp. 219 – 241. Jung, Heike: Anmerkung zu OLG Karlsruhe: Strafbarkeit bei geburtshilflichen Versäumnissen, NStZ 1985, pp. 314 – 317. Kämpfer, Ulf: Die Selbstbestimmung Sterbewilliger – Sterbehilfe im deutschen und amerikanischen Verfassungsrecht, Berlin 2005. Kersten, Jens: Das Klonen von Menschen, Tübingen 2004. Kersting, Daniel: Tod ohne Leitbild? Philosophische Untersuchungen zu einem integrativen Todeskonzept, Münster 2017. Kindhäuser, Urs/Neumann, Ulfried/Paeffgen, Hans-Ullrich (eds.): Strafgesetzbuch Kommentar, Bd. 2: §§ 80 – 231, 5th edition, Baden-Baden 2017. Kloepfer, Michael: Humangentechnik als Verfassungsfrage, JZ 2002, pp. 417 – 427. Kodalle, Klaus M.: Der Tod als “Geschick”? Die Stellungnahme der Evangelischen Kirche zum Stellenwert der Patientenverfügung. Kritische Anmerkungen, Zeitschrift für evangelische Ethik 2005, pp. 223 – 229. Köhler, Michael: Die Rechtspflicht gegen sich selbst, Jahrbuch für Recht und Ethik 2006, pp. 425 – 446. Konrad Adenauer Foundation: “Der Grundwert des Lebens steht zur Disposition”. Ein Interview mit dem Palliativmediziner Dr. Thomas Sitte zum BVerfG-Urteil über das Verbot der geschäftsmäßigen Förderung der Selbsttötung, 2020, available at: https://www.kas.de/ documents/252038/7995358/Ein+Interview+mit+dem+Palliativmediziner+Dr.+Thomas+Sitte+zum+BVerfG-Urteil+u¨ ber+das+Verbot+der+gescha¨ ftsma¨ ßigen+Fo¨ rde rung+von+Selbstto¨ tung.pdf/92c82b37-d329-d3cf-64b5-31efb3dd4f9e?version=1.0&t= 1595943180206 (accessed at 21. 10. 2022). Kreß, Hartmut: Samenspende und Leihmutterschaft – Problemstand, Rechtsunsicherheiten, Regelungsansätze, FPR 2013, pp. 240 – 243.

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Krones, Tatjana: Pränataldiagnostik und Schwangerschaftsabbruch, in: Elger, Bernice S. (ed.), Ethik und Recht in Medizin und Biowissenschaften: Aktuelle Fallbeispiele aus klinischer Praxis und Forschung, Berlin 2014, pp. 49 – 70. Kubiciel, Michael: Tötung auf Verlangen und assistierter Suizid als selbstbestimmtes Sterben?, JZ 2009, pp. 600 – 608. Kuhse, Helga: Die Lehre von der Heiligkeit des Lebens, in: Leist, Anton (ed.), Um Leben und Tod, 1st edition, Frankfurt am Main 1990, pp. 75 – 106. Lohmann, Georg: Die Herausforderungen der Ethik durch Lebenswissenschaften und Medizin: Zum Streit um den normativen Status des Frühembryos, Jahrbuch für Recht und Ethik 2002, pp. 77 – 97. Lohmar, Achim: Suizid und Moral. Über die ethische Relevanz der Verschiedenheit moralischer Subjekte, Zeitschrift für philosophische Forschung 2006, pp. 59 – 84. Lüttger, Hans: Geburtsbeginn und pränatale Einwirkungen mit postnatalen Folgen. Bemerkungen zu BGH – 3 StR 25/83 vom 22. 4. 1983, NStZ 1983, pp. 481 – 485. Majer, Christian F.: Die Vermietung des eigenen Körpers – Verträge über Leihmutterschaft und Prostitution, NJW 2018, pp. 2294 – 2299. Mangoldt, Hermann von/Klein, Friedrich/Starck, Christian (eds.): Grundgesetz Kommentar, Bd. 2, AA. 20 – 82, 7th edition, Munich 2018. Matt, Holger/Renzikowski, Joachim (eds.): StGB Kommentar, 2nd edition, Munich 2020. Merkel, Reinhard: Hirntod und kein Ende, Jura 1999, pp. 113 – 122. Mildenberg, Elke H.: Der Streit um die Embryonen: Warum ungewollte Schwangerschaften, Embryoselektion und Embryonenforschung grundsätzlich unterschiedlich behandelt werden müssen, MedR 2002, pp. 293 – 300. Nationale Akademie der Wissenschaften Leopoldina and Union der deutschen Akademien der Wissenschaften: Fortpflanzungsmedizin in Deutschland – für eine zeitgemäße Gesetzgebung, Halle (Saale) 2019, available at: 2019_Stellungnahme_Fortpflanzungsmedizin_web_01.pdf (leopoldina.org) (last accessed at 23. 10. 2022). Neumann, Jacqueline: Vier Gesetzentwürfe zur Neuregelung der Suizidhilfe – eine Bewertung, NJOZ 2021, pp. 385 – 390. NY Times: Abortion is completely banned in 13 states, continuously updated, available at: https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html, (accessed at 28. 10. 2022). Olshausen, Henning v.: Menschenwürde im Grundgesetz: Wertabsolutismus oder Selbstbestimmung?, NJW 1982, pp. 2221 – 2224. Patzke, Jelena: Die gesetzliche Regelung der Präimplantationsdiagnostik auf dem Prüfstand – § 3a ESchG, Baden-Baden 2020. Plessner, Helmuth: Die Stufen des Organischen und der Mensch (1928), Berlin 2019. President’s Council on Bioethics: Controversies in the Determination of Death, A White Paper by the President’’s Council on Bioethics, Washington D.C. 2008. Ramsey, Paul: Ethics at the Edges of Life. Medical and legal intersections, 2nd edition, New Haven 1978.

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Age, Fair Innings, and Triage in the Time of Coronavirus* By María Lucila Tuñón Corti**

I. Introduction One of the challenges we had to face during the Covid-19 pandemic was the fact that tragic decisions needed to be made once the demand for resources, like ventilators or beds in intensive care units, exceeded the available supply. Physicians facing a number of acutely ill patients were faced with the dilemma of choosing which ones to save, and which ones to let die as they could not save everyone.1 The situation was so extreme that in many countries ethical recommendations2 were developed that were intended to provide guidance on this issue. At that moment, it seemed inevitable to have to resort to a set of rules in order to answer this question: Who should get the scarce resources when the healthcare system reaches the saturation point? In such a context, physicians have to deal with decisions which in some sense require weighing lives against other lives.

* A preliminary draft of this paper was presented at the 15th Inter-University Graduate Conference Program (panel for Criminal Law Theory) at Cornell Law School. For the helpful discussion on that draft, I am grateful to my commentator Elif Gül Yılmazlar and the other panelists. For the feedback on later drafts I am also grateful to Ivó Coca Vila. ** María Lucila Tuñón Corti, LL.M. works as a research assistant at the Chair of Criminal Law, Criminal Procedure Law, Information Law and Legal Informatics at the University of Würzburg. 1 For the situation in various countries, see Caplan et al., Annals of Internal Medicine 173 (2020), p. 2; Emanuel et al., NEJM 382 (2020), p. 2049; Gargarella, VerfBlog, 5. 1. 2020; Herreros et al., Journal of Medical Ethics 46 (2020), pp. 455 – 456; Hong, VerfBlog, 3. 31. 2020; López de la Vieja, Dilemata 39 (2022), p. 51; Montalvo Jääskeläinen/Bellver Capella, Igualdades 3 (2020), p. 313; Orfali, Bioethical Inquiry 17 (2020), pp. 675 et seq. 2 Ministerio de Salud de la Nación Argentina, Recomendaciones para la Implementación de Triage; Consejo de Salubridad General de México (CSG), Guía Bioética para Asignación de Recursos Limitados; Deutscher Ethikrat, Solidarity and Responsibility during the Coronavirus Crisis; Ministerio de Sanidad, Consumo y Bienestar Social de España: Informe del Ministerio de Sanidad sobre Los aspectos éticos en situaciones de pandemia: El SARS-CoV-2; Steinberg et al., Rambam Maimonides Med J. 11 (2020), p. 1 et seq.

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This is where the concept of the so-called triage becomes relevant and, indeed, several jurisdictions had to apply triage measures.3 Typically one uses the word triage to refer to a fair-allocation process for selecting and allocating disaster victims to appropriate treatment classes according to the severity of the illness or injury, taking into account the scarcity of available life-saving resources, medical treatment and transport options. This necessarily means the application of exclusion criteria to provide (ethical) guidance for resource allocation in such dramatic situations.4 Furthermore, it is useful to consider firstly two different types of triage:5 – Ex-ante triage: This refers to cases where the number of unoccupied and available resources (mostly ventilators and beds) is smaller than the number of patients who have an acute need for them.6 This case forces physicians to decide which patients (e. g. infected with Covid) to treat first. Patients who are subsequently denied treatment are victims of an omission by the physician because they are simply not saved from disease-related death for reasons of tragic unavailability. The specific feature, in this case, is that the health worker can only treat the patients alternatively, but not cumulatively, because of the shortage.7 – Ex-post triage: In this scenario all available resources are occupied, and it is necessary to take away the lifesaving treatment of one patient in order to save the life of another patient by reassigning the medical device.8 This case takes place, for example, once a patient has already been placed on mechanical ventilation and then the machine is withdrawn. In this paper, I will only discuss cases of ex-ante triage,9 because these are clear cases of allowing patients to die: the physician does not kill one patient to save an3 Regarding Italy, cf. Rosenbaum, NEJM 382 (2020), p. 1; regarding France, cf. Soldt/ Wiegel, FAZ, 3. 26. 2020. 4 Archard/Caplan, BMJ 2020, p. 1; Brech, Triage und Recht, p. 48 et seq.; Demel et al., Int. J. Environ. Res. Public Health 19 (2022), p. 3; Lübbe, VerfBlog, 3. 16. 2020; Merkel/Augsberg, JZ 2020, p. 704; Rivera López et al., Revista Bioética y Derecho 50 (2020), p. 47. 5 On this classification cf. Frister, in: Hilgendorf/Hoven/Rostalski (eds.), Triage in der (Strafrechts-)Wissenschaft, p. 131 et seq.; Hoven/Hahn, JA 2020, p. 481 et seq. 6 Deutscher Ethikrat, Solidarity and Responsibility during the Coronavirus Crisis, p. 4; Engländer, in: Hörnle/Huster/Poscher (eds.), Triage in der Pandemie, p. 118; Rivera López et al., Revista Bioética y Derecho 50 (2020), p. 47. 7 Rönnau/Wegner, JuS 2020, p. 404. 8 Coca Vila, InDret 1 (2021), p. 177; Engländer/Zimmermann, NJW 2020, p. 1401; Merkel/Augsberg, JZ 2020, p. 706; for a detailed treatment, cf. Hörnle, in: Hörnle/Huster/Poscher (eds.), Triage in der Pandemie, p. 149 et seq. Cf. also Emanuel et al., NEJM 382 (2020), p. 2052. 9 There’s also a third category: so-called preventive triage. It refers to the situation in which there is still treatment capacity available. For example, there are ventilators available, but they are held open for potential patients with better prospects of recovery or high(er) chances of success. These are also cases of ex-ante triage with some differences regarding the timing of the decision that could be important in order to determine the moral and legal responsibility of the physician, but I will not get into specifics. For the purposes of this discussion, it is enough

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other, but simply saves one (or more) and lets the other (or others) die. At least some ex-post triage situations can also be considered cases of letting someone die, but the issue of when interrupting treatment becomes an act of (active) killing is highly contested.10 As it is widely accepted that it is more difficult to ground the moral and legal permissibility of an act of killing than the permissibility of an act of letting die, cases of ex-post triage offer additional problems. It was preferable, then, to exclude this category of cases from the scope of this essay. A second important differentiation, in order to offer a complete picture of the triage problematic, distinguishes between prioritization criteria and tie-breaking criteria.11 Prioritization criteria are those that are used in the first place to assign priority to certain patients over others within a triage decision. The most generally accepted criterium is the chances of success criterion12, i. e., people most likely to survive their current illness through the use of scarce resources deserve priority over those less likely to survive. When those first prioritization criteria are insufficient because both patients are in full parity, it becomes necessary to have supplementary tie-breaking criteria to help subsequently make the final allocation decision. There are a lot of distributive principles that can serve as tiebreakers to justify triage decisions, such as maximizing the benefits produced by scarce resources (i. e., save the most lives or the most life-years)13, prioritizing health workers14 (because this would lead to saving those who can save others in the future), disadvantaging persons responsible for causing themselves to need a scarce resource in a health emergency,15 distributing resources on a first-come, first-served basis16 (the resource would be given to the person whose need was manifest first), or even breaking the tie randomly through a lottery or a coin toss.17 to consider preventive triage cases as part of the more general ex-ante triage category. I tackle the specific question of “preventive triage” in Tuñón Corti, Präventive Triage und Abbruch rettender Kausalverläufe im eigenen Organisationsbereich. Eine Diskussion anhand des Werks von Silva Sánchez, which is in preparation. 10 See Gaede et al., medstra 2020, p. 136; Jäger/Gründel, ZIS 4 (2020), p. 156; Jansen, ZIS 3 (2021), p. 164 et seq. 11 Rivera López et al., Revista Bioética y Derecho 50 (2020), p. 47 et seq. 12 Frister, AT, § 22/62; Gaede/Kubiciel/Saliger/Tsambikakis, medstra 2020, p. 5; Hong, VerfBlog, 3. 31. 2020; Hoven, JZ 9 (2020), p. 449 et seq.; Lübbe, in: Hörnle/Huster/Poscher (eds.), Triage in der Pandemie, p. 258 et seq.; Taupitz, MedR 2020, p. 445. 13 Emanuel et al., NEJM 382 (2020), p. 2051 et seq.; Hörnle, Verfassungsblog on 4. 4. 2020; Hoven, JZ 9 (2020), p. 451s. 14 Emanuel et al., NEJM 382 (2020), p. 2053. 15 Wolff, An Introduction to Moral Philosophy, p. 422 et seq. 16 Cf. Childress, An Interdisciplinary Journal 53 (2013), p. 347 et seq.; John/Millum, Ethics 130 (2020), p. 179 et seq. Cf. also Persad/Wertheimer/Emanuel, Lancet 373 (2009), p. 424; Rivera López et al., Revista Bioética y Derecho 50 (2020), p. 53. 17 Engländer, in: Hörnle/Huster/Poscher (eds.), Triage in der Pandemie, p. 139 et seq.; Macklin, Salud Pública de México 62 (2020), p. 592; Merkel/Augsberg, JZ 2020, p. 705. This point of view suggests that to allow such factors a role in the allocation of resources is

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All these principles have advantages and disadvantages, but one of the most controversial allocation criteria is age, even though it has been adopted by some countries18 and has played a role for many decades in limiting access to care when rationing resources in organ transplantation.19 The relevant question then is whether and to what extent age should be taken into account as an ethically and legally relevant criterion for fair allocation. This paper focuses on this issue. If a doctor decides to prioritize the youngest patient taking into account the ‘age yardstick’, how is such a decision to be judged? To illustrate the question at issue, consider the following case: Tiebreaker:20 20-year-old A and 65-year-old B are transported to the hospital as emergency patients. They are brought in at the same time. Both have a survival probability of over 90 % with ventilation, otherwise less than 40 %. The only difference between the two patients is their age. But only one ventilator is available for these patients, and it is virtually certain that no other ventilator will become available in time to save both. The physician in charge, C, decides to give preference to patient A, who is a perfectly healthy person, over patient B, who also has no previous health problems and is in good general condition. Patient B dies.

In the following paragraphs I will tackle this issue from a German criminal law perspective. Firstly, I will describe how German law should resolve these cases of omission or letting a patient die in the ex-ante triage scenario, and how an agebased criterion could be taken into account (2). Secondly, I will explore a number of ways of incorporating the age criterion into triage decisions. Different justifications will be offered, grounded both on consequentialist and deontological considerations. In the end, I will explore a deontological argument based on the principle of fairness: priority should be given to those who are worse off concerning years of life lived, in the sense of being at risk of dying young and not having the opportunity to lead flourishing lives. Finally, I will discuss possible criticisms of this proposal, and offer a brief conclusion (4).

II. Triage Decision in a Pandemic According to German Criminal Law As I said before, the concept of triage means the application of pre-established criteria, which determine which patient should be given priority to receive scarce resources during a health emergency. It is noteworthy that how the scarce medical resources should be used is not merely a medical challenge, but also a legal one. In particular, the question of choosing a particular patient to receive care when the numincompatible with respect for the equal worth of people. But see McMahan, Social Research 74 (2007), p. 101; Persad/Wertheimer/Emanuel, Lancet 373 (2009), p. 423 et seq. 18 Cf. Etxebarria, Enrahonar 65 (2020), p. 86; Herreros et al., Journal of Medical Ethics 46 (2020), p. 457; Hong, VerfBlog, 3. 31. 2020; Soldt/Wiegel, FAZ, 3. 26. 2020. 19 Cf. the example of Israel and the discussion about age restrictions for organ transplantation in Katvan et al., Age and Ageing 46 (2017), pp. 8 – 10. 20 An original case was taken from Hörnle, VerfBlog, 4. 4. 2020, p. 1.

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ber of people in need of medical assistance exceeds the available resources can be considered an act of homicide by omission. In fact, this is one of the most debated topics in current theoretical discussion in Germany.21 According to the prevailing view in German-speaking criminal law scholarship,22 the physician in these cases has a duty to save all of her patients in need and if she does not fulfil her duties, then she could be in principle prosecuted for homicide by omission (§§ 212, 13, German Criminal Code). Of course, if there are insufficient means available to save them all it would be absurd to hold criminally liable the physician who made a decision to save at least a few patients. A justification called conflict of duties then comes to the rescue. It is considered applicable to ex-ante triage cases: when a physician has two duties23 to act that cannot cumulatively be fulfilled, but only alternatively, she must comply with a disjunctive or alternative duty – aid one or the other person.24 In cases of conflict of duties of equal rank it is always required to fulfill one of the two duties. The rationale is that nobody can be required by the State to do the impossible.25 In tiebreaker cases, both patients are critically ill and physician C can only fulfill one of the two life-saving duties because only one ventilator is available. Thus, physician C is justified in making a choice between patients because there is a conflict of duties under German criminal law. However, the relevance of the reasons that lead to such choices is nowadays a controversial matter. It takes us to the question of whether the duty-bound person should be free to choose which duty to fulfil, or whether some kind of additional criteria should be imposed. On the one hand, many scholars26 hold that the reasons that lead to the choice should not be examined: whether the physician chooses patient A over B for wrongful motives (for example, gender or racial discrimination) is supposedly irrelevant for the criminal law. So, the physician would be able to choose freely which duty to fulfill, and the State would not be able to inquire into her reasons for making the choice.

21

Busch, ZStW 132 (2020), p. 742 et seq.; Gaede/Kubiciel/Saliger/Tsambikakis, medstra 2020, p. 1 et seq.; Hörnle, in: Hörnle/Huster/Poscher (eds.), Triage in der Pandemie, p. 152 et seq.; Mannino, Wen rette ich – und wenn ja, wie viele, p. 16 et seq. 22 Engländer, in: Hörnle/Huster/Poscher, Triage in der Pandemie, p. 148; Frister, AT, § 22/ 62; Gaede/Kubiciel/Saliger/Tsambikakis, medstra 2020, p. 4; Jäger/Gru¨ ndel, ZIS 2020, 151; Merkel/Augsberg, JZ 2020, p. 706; Rönnau/Wegner, JuS 2020, p. 404; Sternberg-Lieben, MedR 2020, p. 630. 23 She can eventually have more than two duties. However, I will use two-person cases in order to avoid additional problems. 24 Coca Vila, New Criminal Law Review 22 (2019), p. 34 et seq.; Engländer, in: Hörnle/ Huster/Poscher (eds.), Triage in der Pandemie, p. 116 et seq. 25 Coca Vila, ZStW 130 (2018), p. 963 et seq.; Merkel/Augsberg, JZ 2020, p. 706; Roxin/ Greco, AT, § 16/116 et seq. 26 Coca Vila, InDret 1 (2021), p. 195; Jäger/Gründel, ZIS 2020, p. 161; Merkel/Augsberg, JZ 2020, p. 707; Rönnau/Wegner, JuS 2020, p. 403; Roxin/Greco, AT, §16/121; SternbergLieben, MedR 2020, p. 634.

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On the other hand, another approach27 argues that it is not such a good idea to leave this decision entirely to the doctors’ discretion. Rather it is necessary to require that the physician follows some kind of previously defined and well-thought through criteria in order to make a decision. This means that the duty-bound person should follow these criteria or at least offer a good explanation for not doing so. If she does not do that (that is, follow the rules or explain her choice), then her behavior would not be justified and criminal liability for homicide by omission will be back on the table. According to this point of view, different chances of survival need to have an impact on the doctor’s choice. Thus, it is necessary to already have specific criteria in order to apply them when appropriate and in order to later evaluate doctor decision-making: there exist ethical recommendations by some medical societies28 and there is a new but growing line of argumentation in the literature stipulating that in cases of ex-ante triage the urgency and the medical need (degree of danger) of each patient should be determined at the outset. Thus priority should be given to patients with more urgent medical needs. Only when both patients in need of treatment show the same degree of urgency do the chances of success (in the sense of eliminating the danger or the probability of survival) come into consideration.29 Of course, such prioritization criteria do not exclude the possibility of a tie between the patients in terms of need. Furthermore, it is doubtful whether only urgency and chances of success lead to a real solution so that under these circumstances, it becomes inevitable to seek further tiebreaker principles.30 Thus, the question of which tie-breaking criteria should be applied takes to the stage. As I said above, it is possible to find different principles to resolve the difficult question of who gets scarce medical resources. Here the crucial question arises of whether the age of patients in need of treatment should be taken into consideration at least as a tie-breaking criterium. Is it right for a physician to let an older patient die in order to save a younger one? I will discuss this question in detail in the following section.

III. Justifying Age-Based Criteria for Triage Decisions There are two ways in which age-based criteria may be relevant to the allocation of health care resources in the context of ex-ante triage: On the one hand, there are

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Frister, AT, § 22/62; Hörnle, VerfBlog, 4. 4. 2020; Hoven, JZ 9 (2020), p. 449. Daugherty-Biddison et al., Maryland Framework for the Allocation of Scarce Life-sustaining Medical Resources in a Catastrophic Public Health Emergency, p. 1 et seq.; Deutscher Ethikrat, Solidarity and Responsibility during the Coronavirus Crisis, p. 4. 29 Caplan et al., Annals of Internal Medicine 173 (2020), p. 5; Frister, AT, §22/62. Others prefer a lottery, cf. Engländer, in: Hörnle/Huster/Poscher (eds.), Triage in der Pandemie, p. 122 et seq. 30 Engländer recognizes this problem regarding the urgency but he proposed a lottery instead. Cf. Engländer, in: Hörnle/Huster/Poscher, Triage in der Pandemie, p. 139. 28

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‘pure’ or ‘independent’ criteria; and on the other hand, there exist ‘indirect’ criteria which depend on something else.31 We shall start by exploring the latter. 1. ‘Indirect’ Age-Based Criteria The first conceivable criterion that enables age to be taken into account as a factor is the ‘indirect’ criterion. It is called ‘indirect’ just because it is to be taken into account in the context of a different principal criterion – which is considered decisive – either explicitly or implicitly. This is usually the well-known utilitarian criterion of ‘chances of success’, which is a prioritization criterion. Thus, the age of the person would provide information about the likelihood of successful treatment, as it is to be evaluated as a predictive factor of treatment’s efficacy. If we assume that younger people generally have a better chance of survival,32 age plays a decisive role in the context of the chances of success of a treatment.33 The opposite is also true. Caplan, who states that age should be taken into account, assumes that older people factually became disproportionately and severely ill. Advanced age may indicate lower chances of survival or a (lower) probability of treatment efficacy, as the functionality of some body organs decreases over time.34 In a nutshell: Those with the best chances of survival or better chances of treatment being successful, who are generally not the elderly, will be better off using this criterion. One common objection against using age as an indirect criterion is that it would massively disadvantage older people and people with coexisting or chronic medical conditions.35 The question of whether that leads to wrongful indirect discrimination against older people or not, cannot be dealt with here. What is important is that if we consider chances of success as a reasonable criterion, age is taken into account at least indirectly, in the guise of a criterion based on medical indication.36 By taking the chances of success as the primary criterion for patient allocation in the ex-ante triage context, the utilitarian principle of ‘saving the most individual lives’ is accepted. Consequently, the relevance of old age as a predictive factor of efficacy turns age 31 Rivera López et al., Revista Bioética y Derecho 50 (2020), p. 49 distinguish between this two ways of taking age into account. Cf. Archard/Caplan, BMJ 2020, p. 2; Brech, Triage und Recht, p. 276; Merkel/Augsberg, JZ 2020, p. 709. 32 Emanuel et al., NEJM 382 (2020), p. 2053. 33 For a detailed treatment from a medical perspective, cf. Bajaj et al., Frontiers in Physiology 11 (2021), p. 5 et seq. Cf. also Hilgendorf, in: Hilgendorf/Hoven/Rostalski (eds.), Triage in der (Strafrechts-)Wissenschaft, p. 178. 34 Archard/Caplan, BMJ 2020, p. 2; Etxebarria, Enrahonar 65 (2020), p. 92; Hoven, in: Hörnle/Huster/Poscher (eds.), Triage in der Pandemie, p. 349; Wu/McGoogan, Journal of the American Medical Association 323 (2020), p. 1239. 35 Hilgendorf, in: Hilgendorf/Hoven/Rostalski (eds.), Triage in der (Strafrechts-)Wissenschaft, p. 181. 36 Brech, Triage und Recht, p. 276; Merkel argues that “chances of success” hides a “genetic lottery”, Merkel/Augsberg, JZ 2020, p. 709.

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indirectly into an important factor for decision making, because what must be done is what maximizes the overall benefit. Any other choice would represent an irrational stewardship of resources.37 This means that in triage decisions the age of the person in need is indeed a relevant factor to be taken into account, at least if one accepts (like a lot of people do) the prioritization criterion of chances of success. If one assumes that it is not wrongful to take into account the probability of surviving the treatment as a criterion, then it is in principle also not wrongful to use the age of the person as an objective way of calculating that probability. This should offer some peace of mind to those who think that using age in triage decision making always implies some sort of unjust ageism. However, the main question to be addressed is whether age can play an autonomous role as a tie-breaking criterion, independent of the question of the chances of success of each patient. 2. ‘Pure’ Age-Based Criteria The application in triage decision of a ‘general’ criterion of age, understood as such, namely, the length of time that a person has lived, measured in calendar years, regardless of other criteria, may in principle look counterintuitive. It sounds a little odd to explain a decision to save one person over another just by saying that the one saved was younger than the one left to die. Thus, some scholars reject this age-based criterion38 and many also argue that taking age into account represents discrimination based on biological factors, which is also beyond people’s control, what is incompatible with human dignity. Additionally, it is noted that it would probably be very difficult to establish an age cut-off.39 Nevertheless, many scholars have pronounced themselves in favor of incorporating this criterion as a tiebreaker.40 But would not it be unfair to use this pure criterion of age? Would that be some kind of unjust discrimination? It is, indeed, some kind of discrimination, in the purely descriptive sense that a differentiation is being made. The real issue at stake, both from moral and legal points of view, is whether this discrimination is wrongful. In that sense, Larry Alexander41 rightly points out that there are cases in which we make differentiations, but they are not wrong and unfairly discriminatory from the 37 Emanuel et al., NEJM 382 (2020), p. 2051; Hoven, JZ 9 (2020), p. 452; White et al., Annals of Internal Medicine 150 (2009), p. 134. 38 Archard/Caplan, BMJ 2020, p. 1; Coca Vila, InDret 1 (2021), p. 186; Fateh-Moghadam/ Gutmann, in: Hörnle/Huster/Poscher (eds.), Triage in der Pandemie, p. 319; Jansen, ZIS 2021, p. 162 et seq.; Merkel/Augsberg, JZ 2020, p. 705. 39 Schmitz-Luhn, Priorisierung in der Medizin, p. 133. 40 Archard/Caplan, BMJ 2020, p. 2; Hoven, JZ 9 (2020), p. 452; Mannino, Wen rette ich – und wenn ja, wie viele?, p. 59 et seq.; Nord, Social Science & Medicine 60 (2005), p. 257; Rivera López et al., Revista Bioética y Derecho 50 (2020), p. 49 et seq.; Singer, Project Syndicate, 10. 6. 2020. 41 Alexander, University of Pennsylvania Law Review 141 (1992), p. 151.

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start, because there is a comprehensible argument behind them. For example, it is wrong not to hire a woman just because she is a woman. But it is not wrong to refuse to admit those who fail the bar exam to the practice of law because there are convincing reasons that support this decision. Therefore, to answer the initial question of whether it is unfair to use ‘pure’ age as a triage criterion, one first needs to try to find convincing reasons in favor of incorporating such a criterion. If no convincing rationale could be found, then one could posit the existence of wrongful discrimination. In the following section I will try to provide a rational foundation for taking the ‘pure’ age criterion into account in the context of ex-ante triage. a) Consequentialist Approaches A first attempt at a basis can easily be found in the literature: consequentialist points of view. Consequentialism, as its name suggests, indicates that the greatest utility or the best consequences should be particularly decisive making. The moral rightness of actions then depends only on the goodness of their consequences.42 This point of view, applied to the issue at hand in this paper,43 focuses on life expectancy, i. e. on how many years of life the patient has ahead after treatment, in order to maximize the best consequences of medical triage decisions. In other words, priority is given to patients who will likely survive the longest, as the focus is on the criterion of remaining years of life. Consequently, the solution depends on the additional time to be obtained in the future, so that the physician should choose the patient who has the longer future life expectancy. Treatment is then allocated to save of as many life years as possible, not necessarily more individual lives.44 For example, if a decision has to be made between a 20-year-old patient and a 50-year-old patient, using this approach, and other things being equal, the physician should give priority to the 20-year-old because he has more years of life ahead of him (let’s say 60 years). One point of view holds that even if we could ‘buy’ more years of life, surely the price of 50 years of human life would be much more expensive than the price of 5 years. After all, living more years is valuable, since human life is finite and inevitably has a quantitative component.45 42 Darwall, Philosophical Ethics, p. 13; Sinnott-Armstrong, in: Zalta EN, ed., The Stanford Encyclopedia of Philosophy; Wolff, An Introduction to Moral Philosophy, p. 205. 43 Emanuel et al., NEJM 382 (2020), p. 2052; Hoven, in: Hörnle/Huster/Poscher (eds.), Triage in der Pandemie, p. 349 et seq.; Persad/Wertheimer/Emanuel, Lancet 379 (2009), p. 425; Singer, Project Syndicate, 10. 6. 2020. 44 Persad/Wertheimer/Emanuel, Lancet 379 (2009), p. 425. 45 Hoven, JZ 9 (2020), p. 451. It should be pointed out that Hoven’s argument was criticized in the German literature. Then to defend an age criterion based on consequentialism, Hoven derives a consequentialist solution from Rawls’ veil of ignorance (Hoven, JZ 9 (2020), p. 453; Hoven, in: Hörnle/Huster/Poscher (eds.), Triage in der Pandemie, p. 353), when Rawls framework presupposes that the participants in the original position have already rejected consequentialism as a moral theory. See for example Engländer, in: Hörnle/Huster/Poscher

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Nevertheless, this proposal is prone to severe criticism of being ‘ageism’. The main objection is that it does not respect the principle that all people must be treated equally, since it involves weighing the value human lives, when in fact all human lives, no matter how old or young, are equally valuable.46 But some scholars have replied thusly: This general age criterion is not aimed at a specific group of people. Age is a biological factor that touches upon all of us,47 and precisely because of this feature, allocation by age is unlike unlawful discrimination by race, religion, gender, etc.48 Hence, age is not a person-bound characteristic, but a condition that is common to all people at different times, but throughout their lives. Ultimately, all human beings are going to age.49 But what would in fact be discrimination is a strict age cut-off that negatively affects an entire group, i. e. not treating people over 80 years old. However, age as a tiebreaking criterion in order to maximize the number of years lived, appears to be something objective and well-founded. At least if one accepts a consequentialist framework as a justified moral theory. This latter assumption is, of course, contested. It is not secret that at least since John Rawls’ book A Theory of Justice, the acceptance of consequentialism in general, and utilitarianism in particular, as moral theories cannot be taken as a given. Therefore, it is of course possible to reject stipulating a pure age criterion by rejecting consequentialism as a whole. That is the strategy of German authors like Engländer50 or Merkel.51 The presupposition is that the doctor who prioritizes a patient over another on the basis of a consequentialist weighing will not be able to explain his decision to the patient left to die. That person will be sacrificed in order to fulfill some kind of objective and impersonal good and, therefore, the so-called separateness of persons will be violated.52 I cannot of course resolve once and for all the issue of whether consequentialism is a plausible moral theory or not here. But I also do not think that one needs to go that far in order to reject this consequentialist approach. That is because if we accept the idea that remaining life expectancy is implicitly taken into account in the criterion of chances of success as a prioritization criterion, which is indeed another consequentialist calculus, since age turns out to be an indicator of prognosis, then to consider (eds.), Triage in der Pandemie, p. 130 et seq.; Engländer, GA 2022, p. 346; Hilgendorf, in: Hilgendorf/Hoven/Rostalski (eds.), Triage in der (Strafrechts-)Wissenschaft, p. 179 et seq.; Merkel, JZ 2020, p. 710. 46 Hong, VerfBlog, 3. 31. 2020; Merkel/Augsberg, JZ 2020, p. 706 et seq. 47 See Daniels, Journal of Political Philosophy 16 (2008), p. 475; Schmitz-Luhn, Priorisierung in der Medizin, p. 132. 48 Daniels, Journal of Political Philosophy 16 (2008), p. 475; Persad/Wertheimer/Emanuel, Lancet 373 (2009), p. 425. 49 Daniels, Journal of Political Philosophy 16 (2008), p. 475; Schmitz-Luhn, Priorisierung in der Medizin, p. 132. 50 Engländer, in: Hörnle/Huster/Poscher (eds.), Triage in der Pandemie, p. 128. 51 Merkel/Augsberg, JZ 2020, p. 719 et seq. 52 Merkel/Augsberg, JZ 2020, p. 710.

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life expectancy again would amount to double counting against the elderly. Since most scholars consider that it is necessary to take into account at least some version of the chances of success criterion in order to achieve a reasonable prioritization in a pandemic, then the argument of double counting should in principle be enough to discredit the consequentialist approach as a tie breaking criterion. In fact, some thinkers do not want to resort to consequentialism, as they argue that the basis of this agebased criterion should be given by a different moral foundation. That is a deontological approach53 that attempts to support the incorporation of a ‘general’ age criterion, favoring the worse-off. b) Deontological Approach and Fair-Innings The most promising approach is a deontological fair-innings criterion that attempts to support the incorporation of the ‘general’ age criterion, favoring the worse-off. In this context ‘worse-off’ means that the resources will be directed to those who have had less of something valuable: life-years. The fair-innings analysis holds the idea that every person has the right to live a long and flourishing life or a life of a certain duration, and the decisive standard is the years of life already lived, but not the years of life to be preserved or remaining, as the consequentialist approach suggests. The fact that younger persons can live a longer time would be, in principle, irrelevant. Rather, they ought to be given the chance of a ‘full life’, something that older persons have already had,54 and this approach then uses a measure of inequality (here, age) and then demands a minimization of the inequality determined by this criterion. The justification for this kind of equalization is that it is a noble aim to give each person ‘an equal opportunity to live through the various phases of life’.55 For example, in a tiebreaker, patient A is younger than B. In this respect, B is in a better position because he had the chance to live more years. In contrast to the consequentialist position, neither the maximization the objective number of years lived, nor any other good consequence is sought.56 What matters is that younger people have their lives ahead to live, rather than life expectancy.57 53 Hoven denies that deontological ethics can provide an answer. See Hoven, in: Hörnle/ Huster/Poscher (eds.), Triage in der Pandemie, p. 351; Hoven, JZ 9 (2020), p. 452. 54 See Bognar, Bioethics 29 (2015), p. 253 et seq.; Daugherty-Biddison et al., Maryland Framework for the Allocation of Scarce Life-sustaining Medical Resources in a Catastrophic Public Health Emergency, p. 5, 13. Emanuel, NEJM 382 (2020), p. 2051 et seq.; Persad/ Wertheimer/Emanuel, Lancet 373 (2009), p. 425; Rivera López et al., Revista Bioética y Derecho 50 (2020), p. 49. Compare Hörnle/Wohlers, GA 2018, p. 28. 55 White et al., Annals of Internal Medicine 150 (2009), p. 5. 56 This point in terms of fairness may even be very positive for the case of Germany, where there is a strong general rejection of consequentialist ethics. See Hoven, JZ 9 (2020), p. 450 et seq. 57 Nevertheless, there is no agreement on the concept of fair-innings. In some cases, it is proposed to weigh quality of life years and quality of life (QALYs). See Brech, Triage und

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Naturally, this view has not escaped criticism either. Some authors have pointed out that it also leads to a violation of the principle that all people have equal value, as it suggests that people with more lived life are less valuable than people who have not lived that long. Hence, this tie-breaking criterion would send a wrong message about the value of older people.58 But this is not a charitable interpretation of the fair-innings perspective. What has value is having a reasonable chance of living a flourishing life, not the actual life of the people in need of a medical resource. In any case, this criticism would only succeed if the general age criterion were to be imposed as the principal exclusion criterion. For example, in preventive triage scenarios excluding people older than 85 years old from treatment, which is rightly rejected.59 This criterion will then lead to differential treatment and is selectively applied to the aged60 and this would perhaps suggest that society should abandon these people: “older people are not worth the effort”.61 But the same cannot be said of the fair-innings view as a tiebreaking criterion. The reason is quite simple: it is not intended to establish a general standard to be applied in everyday life, but rather to establish a rule for the allocation of patients in an ex-ante triage situation, when other criteria result in equivalent priority scores. Nor is there an analysis of other people’s quality of life. The fair-innings view is only intended to give people an equal chance to live and to equalize possibilities. Because of that, it is a fairness argument. A second objection62 raised against the fair-innings argument is that it only serves to adequately resolve extreme cases where the age difference is large, but not, for example a case where patients are one or two years apart. In these cases, setting an age limit would seem arbitrary. Consider the following case: Two Millennials: 31-year-old A and 30-year-old B are transported to the hospital as emergency patients. They are brought in at the same time. Both have a survival probability of over 90 % with artificial ventilation, otherwise less than 40 %. The only difference between the two patients is their age. But only one ventilator is available for these patients and it is almost certain that no other ventilator will become available in time to save both. The physician in Recht, p. 266; Nord, Social Science & Medicine 60 (2005), p. 258. So, what matters would not only be the age, but also quality of life. This could have an impact on the case if, for example, it stated that patient A would spend the remaining ten years of his life in great pain because of the infection. There would be a difference in the expected benefit. However, the concept of QALYs is a corrective to the fair-innings view, which can be ignored here. See also Persad/ Wertheimer/Emanuel, Lancet 373 (2009), p. 428 et seq., for another proposal. 58 Archard/Caplan, BMJ 2020, p. 1 et seq.; Macklin, Salud Pública de México 62 (2020), p. 591. See also Hilgendorf, in: Hilgendorf/Hoven/Rostalski (eds.), Triage in der (Strafrechts-)Wissenschaft, p. 179. 59 Archard/Caplan, BMJ 2020, p. 2; Hilgendorf, in: Hilgendorf/Hoven/Rostalski, Triage in der (Strafrechts-)Wissenschaft, p. 181; Hong, VerfBlog, 3. 31. 2020; Persad/Wertheimer/ Emanuel, Lancet 373 (2009), p. 429; White et al., Annals of Internal Medicine 150 (2009), p. 1. See also note 10. 60 White et al., Annals of Internal Medicine 150 (2009), p. 3. 61 Hörnle, VerfBlog, 4. 4. 2020. 62 Archard/Caplan, BMJ 2020, p. 1.

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charge, C, decides to give preference to patient B over patient A. Both are perfectly healthy people. Patient A dies.

According to a ‘narrow’ fair-innings view, in this case, physician C should choose B, the younger patient. But this approach seems counterintuitive, because in that case both A and B have had roughly the same chances to live a meaningful life. It is then necessary to make a small correction to guarantee fair solutions: the fair-innings criterion should only be used as a criterion to resolve extreme cases, i. e. when there is a big age difference between the patients. Such a system may be hard to design, and the cut-off points may be more or less debatable, but it is certainly possible to imagine one. Indeed, some bioethicists63 have recently proposed a set of recommendations in which the general age criterion could be used restrictively but only for the cases where the age difference is large. The main idea is to classify patients into pediatric, adult and elderly groups, and then only favour ‘pediatric’ patients over ‘geriatric’ patients in tiebreaking scenarios.64 This shows that a distribution system for scarce resources using the criterion of ‘age’ is in fact conceivable. Another possible objection would be that, after all, the aim is to maximize the possibility of living a long life and so gain more years of life. There the difference between the consequentialist and the deontological approaches would then be apparent. This objection is mistaken, however, because the fair-innings view does not focus on how many years of life the patient has ahead of him or her in order to maximize some abstract value, but to make a local compensation. To clarify this aspect, consider the following variation of the case: No more chances: 20-year-old A and 65-year-old B are transported to the hospital as emergency patients. They are admitted at the same time. For both of them, the probability of survival with artificial ventilation is over 90 %, otherwise, it is under 40 %. However, there is only one ventilator available for these two patients requiring it. The doctor in charge, C, decides to give preference to patient A, who is suffering from a terminal disease and has less than two years to live, over patient B, who is healthy; patient B dies. Two months later, patient A dies.

Using a consequentialist approach, giving the ventilator to B results in the best outcome because he has a better life expectancy and, thus, saving him would maximize the number of years to be lived. According to this view, physician C should then save patient B. But the fair-innings argument states that when different people compete for a scarce resource and they are identical in every relevant respect but their age, then the 20-year-old person is to be saved, even though his life expectancy is drastically lower than B’s.65 The reason why is that this deontological approach is guided by an egalitarian compensation of chances, regardless of the actual consequences of the decision in terms of maximizing utility. This proves that fairness and consequen63

Rivera López et al., Revista Bioética y Derecho 50 (2020), p. 47 et seq. Rivera López et al., Revista Bioética y Derecho 50 (2020), p. 50. 65 Bognar, Economics and Philosophy 24 (2020), p. 178. 64

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tialist positions differ from each other, as both are based on different ethical arguments and lead to different solutions for this sort of cases. Of course, the relevance of prioritizing those who are worse-off because they did not have the opportunity to live a long life raises serious doubts about how we are to proceed if both patients are young, but have a significant age difference: Young: All things being equal, suppose now that patient A is a 19-year-old person and B is a 5-month-old baby. The doctor in charge, C, decides to give preference to patient A over patient B. B dies.

To resolve this problem, a few scholars have argued that the allocation system should emphasize gradations within a life span.66 Hence, patient A would deserve priority because the 19-year-old has already developed a personality and was capable of forming a long-term plan for life but had not had the opportunity to realize that plan, in contrast to A, who has not yet even had the chance of thinking about that.67 This issue is certainly debatable, and more work in the area needs to be done, but there is at least one possible solution to this conundrum. Finally, a last argument needs to be taken into account. It has been suggested that this approach ends up imposing on an innocent party (the elderly) a duty to sacrifice themselves, so that a younger person can live. The fact that a particular individual, and not society as a whole, should compensate another ‘unlucky’ young person would be something especially up for debate according to this view.68 And that is correct: it is indeed really hard to justify such a sacrifice. However, in all cases of compensation of disadvantages in real life scenarios there will be an individual who will in the end be ‘sacrificed’. Think about traditional cases of ‘affirmative action’ in the United States, in which better qualified white students did not get into college, because a person from a disadvantaged group, with inferior qualifications, was given priority.69 Lastly, the alternative of leaving such cases to chance by means of a lottery or flipping a coin can cause counterintuitive results to appear, for example if that means that a 90-year-old is saved, and a 18-year-old left to die.70 A good deontological theory should try to avoid such results, even if that means modifying some wellthought normative principles. Thus, a deontological fair-innings perspective is a promising way of offering a non-discriminatory foundation for using age as a triage criterion.

66

Emanuel/Wertheimer, Science 312 (2006), p. 855. Persad/Wertheimer/Emanuel, Lancet 373 (2009), p. 425, 428. 68 Engländer, GA 2022, pp. 347 – 348. 69 For a brief discussion cf. Sandel, Justice, p. 167 et seq. 70 If it would indeed be possible to reasonably explain the 18-year-old that he is being left to die, because no compensation of disadvantages in the ‘lottery of life’ should be made, is something that is also not evident. Engländer, GA 2022, p. 347. 67

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IV. Conclusion Considering age as a criterion, even as a mere tie-breaking one, is not simple. There are countless difficulties and the debate is heated. But what this paper has been able to highlight is that there are different ways of incorporating age criteria in ex-ante-triage allocation cases and not all alternatives lead to wrongful discrimination. Rather, age is also implicitly considered within the analysis of the chances of success of a treatment. It is also a helpful criterion in order to give physicians some legal certainty in tiebreaking scenarios. There is probably a lot of debate on this matter ahead and new approaches will emerge. However, at least for the time being, it is possible to conclude that the ‘general’ age criterion is definitively a controversial and persistent challenge that needs to be seriously discussed, not only from the perspective of consequentialism, but also from that of deontological ethics. Bibliography Alexander, Larry: What Makes Wrongful Discrimination Wrong Biases, Preferences, Stereotypes, and Proxies, University of Pennsylvania Law Review Vol. 141, 1992, pp. 149 – 218. Archard, Dave/Caplan, Arthur: Is it wrong to prioritise younger patients with covid 19?, British Medical Journal (BMJ) 2020, p. 369 et seq. Bajaj, Varnica/Gadi, Nirupa/Spihlman, Allison P./Wu, Samantha C./Choi, Cristopher H./Moulton, Vaishali R.: Aging, Immunity, and COVID-19: How Age Influences the Host Immune Response to Coronavirus Infections?, Frontiers in Physiology Vol. 11, 2021, pp. 1 – 23. Bognar, Greg: Fair Innings, Bioethics Vol. 29, 2015, pp. 251 – 261. Bognar, Greg: Age-Weighting, Economics and Philosophy Vol. 24, 2020, pp. 167 – 189. Brech, Alexander: Triage und Recht Patientenauswahl beim Massenanfall Hilfebedürftiger in der Katastrophenmedizin. Ein Beitrag zur Gerechtigkeitsdebatte im Gesundheitswesen, Berlin 2008. Busch, Andrea Elisabeth: Ärztliche Triage in Friedenszeiten – Eine kritische Analyse der Strafbarkeitsrisiken im Lichte der Implikationen des Grundgesetzes, ZStW Vol. 132, 2020, pp. 742 – 779. Caplan, Arthur, et al.: Ventilator Triage Policies During the COVID-19 Pandemic at U.S. Hospitals Associated with Members of the Association of Bioethics Programs Directors, Annals of Internal Medicine Vol. 173, 2020, pp. 188 – 194. Childress, James F.: Who Shall Live When Not All Can Live?, Soundings: An Interdisciplinary Journal Vol. 53, 2013, pp. 237 – 253. Coca Vila, Ivó: Triaje y colisión de deberes jurídico-penal Una crítica al giro utilitarista, InDret Vol. 1, 2021, pp. 166 – 202. Coca Vila, Ivó: Conflicting Duties in Criminal Law, New Criminal Law Review Vol. 22, 2019, pp. 34 – 72. Coca Vila, Ivó: Die Kollision von Verpflichtungsgründen im Strafrecht, ZStW Vol. 130, 2018, pp. 959 – 1006.

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Daniels, Norman: Justice between Adjacent Generations: Further Thoughts, Journal of Political Philosophy Vol. 16, 2008, pp. 475 – 494. Darwall, Stephen: Philosophical Ethics, Oxford 1998. Daugherty-Biddison, Lee, et al.: Maryland Framework for the Allocation of Scarce Life-sustaining Medical Resources in a Catastrophic Public Health Emergency, 08. 24. 2017. Demel, Ronja/Grassi, Francesco/Rafiee, Yasaman/Waldmann, Michael R./Schacht, Annekathrin: How German and Italian Laypeople Reason about Distributive Shortages during COVID-19, Int J Environ Res Public Health Vol. 19, 2022, pp. 1 – 18. Deutscher Ethikrat: Solidarity and Responsibility during the Coronavirus Crisis, Ad Hoc Recommendation, 27. 03. 2020, available at: https://www.ethikrat.org/fileadmin/Publikationen/ Ad-hoc-Empfehlungen/englisch/recommendation-coronavirus-crisis.pdf. (accessed at 21. 02. 2023). Emanuel, Ezekiel J.: Fair Allocation of Scarce Medical Resources in the Time of Covid-19, New England Journal of Medicine (NEJM) Vol. 382, 2020, pp. 2049 – 2055. Emanuel, Ezekiel J./Wertheimer, Alan: Who should get influenza vaccine when not all can?, Science Vol. 312, 2006, pp. 854 – 855. Engländer, Armin/Zimmermann, Till: “Rettungstötungen” in der Corona-Krise? Die Covid-19Pandemie und die Zuteilung von Ressourcen in der Notfall- und Intensivmedizin, NJW 2020, pp. 1398 – 1402. Engländer, Armin: Die Pflichtenkollision bei der Ex-ante-Triage, in: Hörnle, Tatjana/Huster, Stefan/Poscher, Ralf (eds.), Triage in der Pandemie, Tübingen 2021, pp. 111 – 148. Engländer, Armin: Rezension zu: Hilgendorf, Eric/Hoven, Elisa/Rostalski, Frauke (eds.): Triage in der (Strafrechts-)Wissenschaft, GA 2022, pp. 344 – 348. Etxebarria, Jon Rueda: ¿No es país para viejos? La edad como criterio de triaje durante la pandemia de la COVID-19, Enrahonar: an international journal of theoretical and practical reason Vol. 65, 2020, pp. 85 – 98. Fateh-Moghadam, Bijan/Gutmann, Thomas: Gleichheit vor der Triage. Rechtliche Rahmenbedingungen der Priorisierung von COVID-19-Patienten in der Intensivmedizin, in: Hörnle, Tatjana/Huster, Stefan/Poscher, Ralf (eds.), Triage in der Pandemie, Tübingen 2021, pp. 165 – 184. Frister, Helmut: Strafrecht Allgemeiner Teil, Munich 2020. Frister, Helmut: Zur Priorisierung lebenserhaltender medizinischer Behandlungen, in: Hilgendorf, Eric/Hoven, Elisa/Rostalski, Frauke (eds.), Triage in der (Strafrechts-)Wissenschaft, Vol. 20, Baden-Baden 2021, pp. 131 – 148. Gaede, Karsten/Kubiciel, Michael/Saliger, Frank/Tsambikakis, Michael: Rechtmäßiges Handeln in der dilemmatischen Triage-Entscheidungssituation, medstra 2020, pp. 129 – 138. Gargarella, Roberto: The Fight Against COVID-19 in Argentina: Executive vs Legislative Branch, VerfBlog, 05. 01. 2020. Herreros, Benjamin/Gella, Pablo/Real de Asua, Diego: Triage during the COVID-19 epidemic in Spain: better and worse ethical arguments, Journal of Medical Ethics Vol. 46, 2020, pp. 455 – 458.

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Hilgendorf, Eric: Triage, Recht und Ethik, in: Hilgendorf, Eric/Hoven, Elisa/Rostalski, Frauke (eds.), Triage in der (Strafrechts-)Wissenschaft, Vol. 20, Baden-Baden 2021, pp. 165 – 184. Hong, Mathias: Corona-Triage and Human Dignity: On the Limits of Balancing Life Against Life, VerfBlog, 03. 31. 2020. Hörnle, Tatjana/Wohlers, Wolfgang: The Trolley Problem Reloaded – Wie sind autonome Fahrzeuge für Leben-gegen-Leben-Dilemmata zu programmieren?, GA 2018, pp. 12 – 34. Hörnle, Tatjana: Dilemmata bei der Zuteilung von Beatmungsgeräten, VerfBlog, 04. 04. 2020. Hörnle, Tatjana: Ex-post-Triage: Strafbar als Tötungsdelikt?, in: Hörnle, Tatjana/Huster, Stefan/Poscher, Ralf (eds.), Triage in der Pandemie, Tübingen 2021, pp. 149 – 186. Hoven, Elisa: Berücksichtigung von Lebensalter und Lebenserwartung, in: Hörnle, Tatjana/ Huster, Stefan/Poscher, Ralf (eds.): Triage in der Pandemie, Tübingen 2021, pp. 335 – 370. Hoven, Elisa: Die “Triage”-Situation als Herausforderung für die Strafrechtswissenschaft, JZ 2020, pp. 449 – 454. Hoven, Elisa/Hahn, Johanna: Strafrechtliche Fragen im Zusammenhang mit der Covid-19-Pandemie, JA 2020, pp. 481 – 560. Jäger, Christian/Gru¨ ndel, Johannes: Zur Notwendigkeit einer Neuorientierung bei der Beurteilung der rechtfertigenden Pflichtenkollision im Angesicht der Corona-Triage, ZIS 2020; pp. 151 – 163. Jansen, Scarlett: Pflichtenkollision bei Triage-Entscheidungen, ZIS 2021, pp. 155 – 169. John, Tyler M./Millum, Joseph: First Come, First Served?, Ethics Vol. 130, 2020, pp. 179 – 207. Katvan, Eyal/Doron, Israel/Ashkenazi, Tamar, et al.: Age limitation for organ transplantation: the Israeli example, Age and Ageing Vol. 46, 2017, pp. 8 – 10. López de la Vieja, María T.: Principios de ética en la pandemia, DILEMATA. Revista Internacional de Éticas Aplicadas Vol. 39, 2022, pp. 51 – 59. Lübbe, Weyma: Corona Triage: A Commentary on the Triage Recommendations by Italian SIAARTI Medicals Regarding the Corona Crisis, VerfBlog, 03. 16. 2020. Lübbe, Weyma: Effizienter Ressourceneinsatz in einer Pandemie und das Kriterium der klinischen Erfolgsaussicht, in: Hörnle, Tatjana/Huster, Stefan/Poscher, Ralf (eds.), Triage in der Pandemie, Tübingen 2021, pp. 257 – 289. Macklin, Ruth: Allocating medical resources fairly: the CSG bioethics guide, Salud Pública de México Vol. 62, 2020, pp. 590 – 592. Mannino, Adriano: Wen rette ich – und wenn ja, wie viele? Über Triage und Verteilungsgerechtigkeit, Ditzingen 2021. McMahan, Jeff: Justice and liability in organ allocation, Social Research Vol. 74, 2007, pp. 101 – 124. Merkel, Reinhard/Augsberg, Steffen: Die Tragik der Triage – straf- und verfassungsrechtliche Grundlagen und Grenzen, JZ 2020, pp. 704 – 714. Montalvo Jääskeläinen, Federico de/Bellver Capelle, Vicente: Priorizar sin discriminar: La doctrina del Comité de Bioética de España sobre derechos de las personas con disparidad en un contexto de pandemia, IgualdadEs Vol. 3, 2020, pp. 313 – 341.

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Nord, Erik: Concerns for the worse off: fair innings versus severity, Social Science & Medicine Vol. 60, 2005, pp. 257 – 263. Orfali, Kristina: What Triage Issues Reveal: Ethics in the COVID-19 Pandemic in Italy and France, Bioethical Inquiry Vol. 17, 2020, pp. 675 – 679. Persad, Govind/Wertheimer, Alan/Emanuel, Ezekiel J.: Principles for allocation of scarce medical interventions, Lancet Vol. 373, 2009, pp. 423 – 431. Rivera López, Eduardo, et al.: Propuesta para la elaboración de un protocolo de triaje en el contexto de la pandemia de COVID-19, Revista Bioética y Derecho Vol. 50, 2020, pp. 37 – 61. Rönnau, Thomas/Wegner, Kilian: Grundwissen – Strafrecht: Triage, JuS 2020, pp. 403 – 407. Rosenbaum, Lisa: Facing Covid-19 in Italy – Ethics, Logistics, and Therapeutics on the Epidemic’s Front Line, New England Journal of Medicine (NEJM) Vol. 382, 2020, pp. 1873 – 1875. Roxin, Claus/Greco, Luís: Strafrecht Allgemeiner Teil. Der Aufbau der Verbrechenslehre. Vol. I, 5th edition, Munich 2020. Rueda Blanco, Nicolás: Ethical guidelines for the allocation of scarce health resources during the COVID19 Pandemic in Colombia, Revista Colombiana de Cirugía Vol. 35, 2020, pp. 281 – 289. Sandel, Michael J.: Justice: What’s the Right Thing to Do?, New York 2009. Schmitz-Luhn, Björn: Priorisierung in der Medizin: Erfahrungen und Perspektiven, Berlin 2015. Singer, Peter: Is Age Discrimination Acceptable?, Project Syndicate 2020, 10. 06. 2020, available at: https://www.project-syndicate.org/commentary/when-is-age-discrimination-accepta ble-by-peter-singer-2020-06 (accessed at 21. 02. 2023). Sinnott-Armstrong, Walter: Consequentialism, in: Zalta EN (ed.), The Stanford Encyclopedia of Philosophy, 2003. Soldt, Rüdiger/Wiegel, Michaela: “Wer über 75 Jahre alt ist, wird nicht mehr intubiert”, 26. 03. 2020, available at: https://www.faz.net/aktuell/politik/inland/im-elsass-werden-alte-coronapatienten-nicht-mehrbeatmet-16698139.html?GEPC=s3. (accessed at 21. 02. 2023). Steinberg, Avraham/Levy-Lahad, Ephrat/Karni, Tami/Zohar, Noam/Siegal, Gil/Sprung, Charles L.: Israel National Bioethics Council, the Ethics Bureau of the Israel Medical Association, and Representatives from the Israeli Ministry of Health, Israeli Position Paper: Triage Decisions for Severely Ill Patients During the COVID-19 Pandemic. Joint Commission of the Israel National Bioethics Council, the Ethics Bureau of the Israel Medical Association and Representatives from the Israeli Ministry of Health, Rambam Maimonides Med J. Vol. 11 Issue 3, 2020, pp. 1–19. Sternberg-Lieben, Detlev: Corona-Pandemie, Triage und Grenzen rechtfertigender Pflichtkollision, MedR 2020, pp. 627 – 637. Taupitz, Jochen: Verteilung medizinischer Ressourcen in der Corona-Krise: Wer darf überleben?, MedR 2020, pp. 440 – 450. White, Douglas B./Katz, Mitchell H./Luce, John M./Lo, Bernard: Who Should Receive Life Support During a Public Health Emergency? Using Ethical Principles to Improve Allocation Decisions, Annals of Internal Medicine Vol. 150, 2009, pp. 132 – 138.

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Wolff, Jonathan: An Introduction to Moral Philosophy, New York 2021. Wu, Zunyou/McGoogan, Jennifer M.: Characteristics of and Important Lessons from the Coronavirus Disease 2019 (COVID-19) Outbreak in China: Summary of a Report of 72314 Cases from the Chinese Center for Disease Control and Prevention, Journal of the American Medical Association, Vol. 323, 2020, pp. 1239 – 1242.

List of Publications by Yoram Danziger I. Books 1. The Right to Information regarding the Company (2000).

II. Articles 1.

“Raising the Screen of Incorporation in Favor of the Controlling Shareholder of the Company. A Desirable Exception to the Principle of Separate Legal Personality of the Company”. The Accountant 51 (1980) (Hebrew).

2.

“The Advisory Committee on Civil Procedure (The Etzioni Committee)”. Hapraklit 159 (1981) (also published in Hapraklit 431) (Hebrew).

3.

“A Symbolic Gesture Whose Damage is Far Greater than Its Benefit”. Hapraklit 619 (1981) (Hebrew).

4.

“Notes to the Personal Responsibility of Company Managers Upon Liquidation”. Hapraklit 412 (1981) (Hebrew).

5.

“From the World of the English and the American Law”. Hapraklit 172 (1981) (Hebrew).

6.

“Strengthening the Status of Knesset’s Resolutions – in What Manner?”. Hapraklit 212 and 213 (1982) (Hebrew).

7.

“Remedial Defensive Tactics Against Takeovers”. 4 The Company Lawyer 3 (1983).

8.

“The Right of Target Companies’ Directors to Stay Silent Upon a Bid”. 5 The Company Lawyer 213 (1984).

9.

“The Right of Target Companies’ Directors to Use Corporate Funds in Defense of TakeOver.” 5 The Company Lawyer 217 (1984).

10. “Protection of Shareholders and Manager’s Liability in the Offeree Company. When It Faces a Take-Over Through a Tender Offer”. Hapraklit 214 (1985) (Hebrew). 11. “Reducing the Use of the Right to Cancel a Contract by Virtue of the Provision of Section 39 of the Contracts Law (General Part), 1973”. Hapraklit 557 (1985) (Hebrew). 12. “Considerations in Wording the Company Memorandum: Voluntary Stipulations as a Means of Ensuring the Control of the Founders in the Company”. Hapraklit 119 (1988) (Hebrew). 13. “Investigating Business in the Company”. Hapraklit 139 (1998) (Hebrew). 14. “The Right Exposure”. 6 Hapraklitim 38 (2002) (Hebrew). 15. “Does the Extent of the Duties of Care and Skill Imposed on Directors of the Company Appear to be Diminishing?”. 2 Open for Discussion 4 (2002) (Hebrew). 16. “The Screen Continues to Rise”. 57 The Lawyer, 58 (2006) (Hebrew).

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List of Publications by Yoram Danziger

17. “Judicial Legislation in Insolvency Law”. Law and Business 61 (2010) [with Poizner and BenYishai] (Hebrew). 18. “Have the Parties Become the Rulers of the Contract After Amendment No. 2 to the Contracts Law (General Part), 1973?”. Law and Business 27 (2012) [with Matzkin] (Hebrew). 19. “Changes in Methods of Freezing Funds of Terrorist Organizations Since 9/11”. 15 Journal of Money Laundering Control 210 (2012). 20. “Reexamining the Justifications for Directors’ Duty of Care”. 35 The Company Lawyer 265 (2014). 21. “The Rise of the Business Judgment Rule and the Fall of the Duty of Care of Directors”. The Joseph Gross Book 23 (2015) [with Rahum-Twig] (Hebrew). 22. “Have the Parties Become the Rulers of the Contract After Amendment No. 2 to the Contracts Law (General Part), 1973?”. The Eliyahu Matza Book 627 (2015) [with Matzkin] (Hebrew). 23. “Reexamination of the Decision Rule by Majority Opinion and a Proposal for Change”. 234 Hasanegor 11 (2016) [with Timna] (Hebrew). 24. “The Evolution of the Ownership-Retention Stipulation”. The Tova Strasberg-Cohen Book 363 (2017) [with Blechman] (Hebrew). 25. “About the Arbitrator’s Duty of Disclosure and the Power of the Consent of the Parties in Arbitration Proceedings”. The Niii Cohen Book 594 (2017) [with Blechman] (Hebrew). 26. “Mechanisms of Appeal on Arbitration Judgments”. The Jacob Turkel Book 439 (2020) [with Haimi] (Hebrew). 27. “Doing Justice is Above All – About Justice Rubinstein’s Unique Approach Regarding Arbitration Law”. The Eliakim Rubinstein Book 1577 (2020) [with Lahav] (Hebrew). 28. “From Dissenting Opinion to Mistrial: A Proposal for Change”. The Edna Arbel Book 197 (2022) [with Timna] (Hebrew). 29. “Transformations and Innovations in The Companies Act 1999 in the Two Decades Since Its Entry Into Force”. The Asher Grunis Book 617 (2022) [with Bar Nathan] (Hebrew). 30. “Judicial Review of Directors’ Decisions”. 75 Years of Independence and Law 489 (2022) (Hebrew). 31. “We Shall Pursue Justice: The Persecution of Jewish Lawyers in Nazi Germany”. Memory and Justice – Israel’s Supreme Court Judges Write about the Holocaust 65 (2022) (Hebrew). 32. “Deterrent Restitution When? Following CA 2167/16 Sanofi v. Uniparm”. The Miriam Naor Book 645 (2023) [with Babluki-Pillersdorf] (Hebrew). 33. “Treating Likes Alike in a Liberal State – A Study of Justice Salim Joubran’s Discrimination Jurisprudence”. The Salim Joubran Book (Not Yet Published) [with Elazar Weiss] (Hebrew).

III. Reports, Position Papers, and other Publications 1.

The Report of the Committee for Examining the Roles, Structure and Modes of Action of the Custodian General and the Official Receiver (1993) [Member of the Committee]. The report was submitted to the then Minister of Justice, Prof. David Libai (Hebrew).

List of Publications by Yoram Danziger

687

2.

A Final Examination Report by the External Examiner, Dr. Yoram Danziger. An Attorney Appointed by Bezeq – the Israel Telecommunication Corp. Ltd. (26. 4. 2007). Bezeq Report; Securities Authority Publications (Hebrew).

3.

The Attempt to Privatize Prisons in the State of Israel (2010). Presented at the Sydney Conference of International Associations of Supreme Administrative Jurisdictions (2010).

4.

The Attorney-Client Privilege v. The Gatekeeper Initiative. Presented at the 30th International Symposium on Economic Crime, Jesus College, University of Cambridge (2012).

5.

Strengthening the Rule of Law Through Participation of Lawyers in Court Jurisprudence. Presented at the Berlin International Lawyers’ Forum (2013).

6.

The Role of a Supreme Court in a Democracy. Presented at the International Conference of Constitutional Judges in Vilnius (2013).

7.

Virtual Currencies and Money Laundering. Presented at the 31st International Symposium on Economic Crime, Jesus College, University of Cambridge (2013).

8.

How Judges Think in a Globalized World? Presented at the High-Level Policy Seminar, European University Institute, Firenze (2013).

9.

The Role of the Israeli Supreme Court in Promoting Human Rights. Presented at the World Conference on Constitutional Justice. Seoul (2014).

10. Directors’ Duty of Care. Presented at the T.A.D.B.A. Conference, Pembroke College, Oxford University (2015). 11. Freedom of Political Expression, the Right to Equality and Political Boycotts in Israel. Presented at the Würzburg International Workshop (2015). 12. Freedom of Political Expression. the Right to Equality and Political Boycotts in Israel. Presented at the 23rd Conference of Israeli-German and German-Israeli Jurists Associations in Berlin (2015). 13. Freedom of Expression in Israeli Law. Presented at a Conference of German and Israeli Ministers of Justice in Berlin (2015). 14. Judging and Globalization. Presented at the Würzburg International Conference and Summer School (2016). 15. The BDS Movement – False Propaganda, Discrimination, Demonization and Dehumanization of the State of Israel. Presented at the IBA 2nd Annual Conference, Washington D.C. (2016). 16. Appraisal of Minority Shareholdings in Take-Overs under Israeli Law. Presented at the IBA 2nd Annual Conference, Delaware (2016). 17. Judging and Globalization. Presented at a Conference of Judges at the German Constitutional Court in Karlsruhe (2016) (Hebrew). 18. Insolvency Law in Israel. Presented at the St. Petersburg International Legal Forum (2017). 19. Danziger’s Committee First Interim Report on Possible Errors That May Occur Due to Reliance on Erroneous Eyewitness Evidence and Misidentification. Presented at the Annual Conference of the Israel Bar Association (2021). 20. The Main Developments in Israel’s Arbitration Law in the Last Decade. Presented at a Conference of the Israel Bar Association (2021). 21. Danziger’s Committee Second Interim Report on Forensic Evidence. Presented at a Conference of the Israel Bar Association (2021).

688

List of Publications by Yoram Danziger

22. Protecting the Environment Under Israeli Law. Presented at the 26th Conference of the German Israeli Lawyer’s Association in Bonn (2022). 23. Israel’s Rule of Law in a Crisis. Presented for the German Israeli Lawyer’s Association (2023).

List of Authors Barak-Erez, Daphne, Justice Prof. Dr., Supreme Court of Israel, Jerusalem, Israel Bausback, Winfried, Prof. Dr., Bavarian Minister of Justice, ret., Germany Beck, Susanne, Prof. Dr., Faculty of Law, Leibniz-University of Hanover, Germany Dias Leston, Leandro Alberto, Faculty of Law, Julius-Maximilians-University Würzburg, Germany Eckstein, Asaf, Prof. Dr., Associate Professor, Faculty of Law, Hebrew University, Israel Fischman Afori, Orit, Prof. Dr., College of Management Academic Studies, Rishon LeZion, Israel Ghanayim, Khalid, Prof. Dr., Faculty of Law, University of Haifa, Israel Goldshtain, Talia Eva, Lawyer at the Israeli Public Defense, Israel Hamdani, Assaf, Prof. Dr., Faculty of Law, Tel Aviv University, Israel Hannes, Sharon, Prof. Dr., Faculty of Law, Tel Aviv University, Israel Haustein, Berthold, Dr., Lawyer, Leipzig, Germany Heffes, Ezequiel, Dr., Center of Ethics and the Legal Profession, Georgetown University, USA Hilgendorf, Eric, Prof. Dr. Dr., Faculty of Law, Julius-Maximilians-University Würzburg, Germany Klagsbald, Avigdor, Dr., Chair of the Rubinstein Center for Constitutional Challenges (RCCC), Harry Radzyner Law School, Reichman University, Israel Kremnitzer, Mordechai, Prof. em. Dr., Faculty of Law, Hebrew University Jerusalem, Israel Kreuzer, Karl, Prof. em. Dr. iur. utr. habil., Faculty of Law, Julius-Maximilians-University Würzburg, Germany Kusche, Carsten, Prof. Dr., Faculty of Law, University of Mannheim, Germany Lückemann, Clemens, President of the Higher Regional Court Bamberg, ret., Germany Meyassed Cnaan, Anat, Israel Chief Public Defender, Israel Monsenepwo, Justin, Dr., Lecturer, Université de Montréal, Kanada Parchomovsky, Gideon, Prof. Dr., Faculty of Law, Hebrew University, Jerusalem, Israel, Carey Law School, University of Pennsylvania, USA Rabin, Yoram, Prof. Dr., College of Management Academic Studies, Rishon LeZion, Israel Rapatz (née Rupp), Caroline Sophie, Prof. Dr., Faculty of Law, Christian-Albrechts-University of Kiel, Germany Rodas, Alon, Dr., College of Management Academic Studies, Rishon LeZion, Israel

690

List of Authors

Rosenberg Rubins, Rottem, Dr., College of Law and Business, Ramat Gan, Israel Rostalski, Frauke, Prof. Dr. Dr., Faculty of Law, University of Cologne, Germany Roth-Isigkeit, David, Prof. Dr., Deutsche Universität für Verwaltungswissenschaften Speyer, Germany Schmahl, Stefanie, Prof. Dr., Faculty of Law, Julius-Maximilians-University Würzburg, Germany Schwarz, Kyrill-Alexander, Prof. Dr., Faculty of Law, Julius-Maximilians-Universität Würzburg, Germany Shanan, Tamir, Dr., College of Management Academic Studies, Rishon LeZion, Israel Soroker, Iris, Justice, ret. Dr., Head of the Heth Academic Center for Research of Competition and Regulation, College of Management Academic Studies, Rishon LeZion, Israel Stein, Alex, Justice Prof. Dr., Supreme Court of Israel, Jerusalem, Israel Tuñón Corti, María Lucila, Faculty of Law, Julius-Maximilians-Universität Würzburg, Germany Vaki, Yaniv, Prof. Dr., College of Management Academic Studies, Rishon LeZion, Israel Valerius, Brian, Prof. Dr., Faculty of Law, University of Passau, Germany Vogel, Paul, Dr., Lawyer, Munich, Germany Wang, Shizhou, Prof. Dr., Peking University Law School, Beijing, China Weber, Christoph, Prof. Dr. Dr. h.c., Faculty of Law, Julius-Maximilians-University Würzburg, Germany Weiß, Bernd, Dr., Notary, Schweinfurt, Germany Zuluaga, John, Prof. Dr. iur., Associate Professor, Sergio Arboleda University Bogotá, Colombia Zypries, Brigitte, German Federal Minister of Justice, ret., President of DIJV/IDJV, Germany