על ניסיון בלתי צליח, אינטואיציות וחוקיות במשפט הפלילי: ‏ב‏עקבות רע"פ 2220/16 מור יוסף נ' מדינת ישראל

In the Mor-Yosef case, the defendant was acquitted of the offence of attempting to consume a dangerous drug, on the ground that the drug he had consumed – “Nice Guy” – is not listed in the law prohibiting the personal use of dangerous drugs. The (then) President of the Supreme Court chose to remark in her ruling that “… intuition may lead to the conclusion that the use of ‘Nice Guy’ for seven months, believing that the use of such a drug is prohibited, amounts to an attempt to commit the offence of consuming a dangerous drug. But a person is not criminally convicted on the basis of intuition”. This paper reveals the reasons underlying the tension between the legal analysis, on the one hand, and intuition, on the other, with regard to impossible attempts in two different contexts. One context relates to legal impossibility. In cases where the defendant’ s conduct falls outside the scope of the prohibition, although he/she mistakenly believes that the prohibition applies to such conduct (the case discussed in the Mor-Yosef case), the legal conclusion is that the attempt to commit a non-existent offence is not punishable, whereas intuition might lead to the conclusion that an attempt to commit what appears to the defendant as an offence should be punished. The intuition is based on the perception that criminal culpability relates to the willingness to violate the law, whereas according to the legal analysis, criminal culpability reflects the willingness to harm the social value protected by the law prohibiting the offence. The other context relates to factual impossibility relating to a mistaken belief with regard to the identity of the concrete victim of the offence. In this context, intuition may lead to the conclusion that the impossible attempt to commit an offense is not punishable, while the legal conclusion is that such an attempt is punished. Here, the intuition is based on the perception that criminal law deals with harming or endangering the concrete victim, while the legal analysis focuses on the harm to the social value protected by the prohibition of the offense.