Constitutional Law

CrimA 4596/98

A

v

State of Israel

 

The Supreme Court sitting as the Court of Criminal Appeals

[25 January 2000]

Before President A. Barak and Justices D. Beinisch, I. Englard

 

Appeal on the judgment of the Tel-Aviv–Jaffa District Court (Justice S. Rotlevy) dated 3 June 1998 in CrimC 511/95.

 

Facts: The appellant was convicted of offences of assault and child abuse. The acts for which she was convicted included hitting a child on his mouth, which resulted in the child losing a milk tooth. The appellant was found to have hit her children regularly on various parts of their bodies, both with her hand and with a sandal, and to have been accustomed to throw shoes at them. The appellant argued, both in the trial court and in the Supreme Court, that her use of force was for educational purposes, to curb the wild behaviour of her children.

 

Held: The use of corporal punishment for educational purposes is forbidden by law.

With regard to the offence of child abuse, Justice Beinisch held that a series of acts might amount to abuse, even though each act in itself might not constitute abuse. President Barak agreed with this position. Justice Englard held, in a minority opinion, that the term abuse should only be applied to acts involving severe violence and cruelty and a humiliation or degradation of the victim.

 

Appeal against conviction on the offence of assault denied. Appeal against conviction on the offence of child abuse was denied by majority opinion, Justice I. Englard dissenting.

 

Basic Laws cited:

Basic Law: Human Dignity and Liberty.

 

Legislation cited:

Adoption of Children Law, 5741-1981.

Civil Torts Ordinance, 1944.

Court Martial Law, 5715-1955, ss. 65, 65(a).

Criminal Procedure Law [Consolidated Version], 5742-1982, s. 56.

Cruelty to Animals Law, 5754-1994, s. 2(a).

Family Violence Prevention Law, 5751-1991, s. 3(3).

Foundations of Justice Law, 5740-1980.

Legal Capacity and Guardianship Law, 5722-1962, ss. 14, 15, 17, 22, 27.

Palestine Order in Council, 1922, s. 46.

Penal Law (Amendment no. 26), 5750-1989.

Penal Law, 5737-1977, ss. 1, 20(a), 34Q, 34U, 323, 368B, 368B(a), 368C, 378, 379, 382(b), Chapter 10 Article 6A.

Protection of Dependents Law, 5726-1966.

Rules of Evidence Amendment (Protection of Children) Law, 5715-1955, ss. 9, 11.

Torts Ordinance [New Version], ss. 24(7), 27(6).

Youth (Care and Supervision) Law, 5720-1960, s. 3.

 

Regulations cited:

Emergency (Court Martial Law 5708) Regulations, 5708-1948, r. 87.

 

International conventions cited:

Convention on the Rights of the Child, 1989, art. 19(1).

 

Draft legislation cited:

Draft Penal Law (Amendment no. 31), 5749-1989.

Draft Penal Law (Preliminary Part and General Part), 5752-1992, ss. 49, 49(5)

 

Israeli Supreme Court cases cited:

[1]      LCrimA 3904/96 Mizrahi v. State of Israel [1997] IsrSC 51(1) 385.

[2]      CrimA 192/56 Yehudai v. Attorney-General [1957] IsrSC 11 365.

[3]      CrimA 532/82 Faber v. State of Israel [1983] IsrSC 37(3) 243.

[4]      CrimA 694/83 Danino v. State of Israel [1986] IsrSC 40(4) 249.

[5]      CrimA 387/83 State of Israel v. Yehudai [1985] IsrSC 39(4) 197.

[6]      CrimA 4009/90 State of Israel v. A [1993] IsrSC 47(1) 292.

[7]      CrimA 1121/96 A v. State of Israel [1996] IsrSC 50(3) 353.

[8]      CrimA 85/80 Katashwilli v. State of Israel [1980] IsrSC 34(4) 57.

[9]      FH 25/80 Katashwilli v. State of Israel [1981] IsrSC 35(2) 457.

[10]    LCA 1684/96 ‘Let the Animals Live’ Society v. Hamat Gader Vacation Enterprises Ltd [1997] IsrSC 51(3) 832.

[11]    CrimA 5224/97 State of Israel v. Sedeh Or [1998] IsrSC 52(3) 374.

[12]    CrimA 3783/98 A v. State of Israel (unreported).

[13]    CrimA 142/97 A v. State of Israel (unreported).

[14]    CrimA 7861/96 A v. State of Israel (unreported).

[15]    CrimA 2696/96 A v. State of Israel (unreported).

[16]    CrimFH 9003/96 Pizanti v. State of Israel (unreported).

[17]    CrimA 295/94 A v. State of Israel (unreported).

[18]    CrimA 2011/95 A v. State of Israel (unreported).

[19]    CrimA 7/53 Russey v. Attorney-General [1953] IsrSC 7 790.

[20]    CrimA 3779/94 Hamdani v. State of Israel [1998] IsrSC 52(1) 408.

[21]    CrimA 4405/94 State of Israel v. Algeny [1994] IsrSC 48(5) 191.

[22]    CA 2266/93 A (a minor) v. B [1995] IsrSC 49(1) 221.

[23]    CFH 7015/94 Attorney-General v. A [1996] IsrSC 50(1) 48.

[24]    CA 6106/92 A v. Attorney-General [1994] IsrSC 48(2) 833.

[25]    CrimA 3958/94 A v. State of Israel (unreported).

[26]    CrimA 3754/97 A v. State of Israel (unreported).

 

Israeli District Court cases cited:

[27]    CrimC (TA) 570/91 State of Israel v. Asulin [1992] IsrDC 5752(1) 431.

 

Israeli Court Martial cases cited:

[28]    CMA 209/55 Chief Military Prosecutor v. Corp. Nehmad [1954-1955] IsrCM 614.

[29]    CMA 224/54 (unpublished).

[30]    CMA 4/52 Chief Military Prosecutor v. Capt. Timor [1951-1953] IsrCM 181.

[31]    CMA 152/78 Aharon v. Chief Military Prosecutor [1978] IsrCM 200.

[32]    CMA 290/58 Chief Military Prosecutor v. Lieut. Gad [1959] IsrCM 56.

[33]    CMA 156/70 Capt. Meir v. Chief Military Prosecutor [1970] IsrCM 280

[34]    CMA 143/72 Chief Military Prosecutor v. Capt. Yosef [1972] IsrCM 194.

[35]    CMA 85/62 Sgt. Brown v. Chief Military Prosecutor [1962] IsrCM 180.

 

American cases cited:

[36]    State v. Arnold 543 N.W. 2d 600 (1996).

[37]    Raboin v. North Dakota Dept. of Human Serv. 552 N.W. 2d 329 (1996).

[38]    State v. Gallegos 384 P. 2d 967 (1963).

[39]    In Re S.K. 564 A. 2d 1382 (1989).

 

English cases cited:

[40]    R. v. Hopley (1860) 175 E.R. 1024 (S.A.).

 

Canadian cases cited:

[41]    R. v. Komick [1995] O.J. 2939.

[42]    R. v. D.W. [1995] A.J. 905.

[43]    R. v. D.H. [1998] O.J. 3347.

[44]    R. v. Dupperon (1984) 16 C.C.C. (3d) 453.

[45]    R. v. James [1998] O.J. 1438.

[46]    R. v. J.O.W. [1966] O.J. 4061.

 

Israeli books cited:

[47]    A. Barak, Interpretation in Law, vol. 2, Interpretation of Legislation, 1993.

[48]    S. Z. Feller, Fundamentals of Criminal Law, vol. 1, 1984; vol. 2, 1987.

[49]    A. Barak, ‘Immunity from Liability or Prosecution; Denying the Victim’s Right or Denying his Claim’, in G. Tedeschi ed., The Law of Torts — the General Doctrine of Torts, 2nd ed., 1977, 349.

[50]    P. Shifman, Family Law in Israel, vol. 2, 1989.

[51]    B. Bettelheim, A Good Enough Parent, 1993.

[52]    A. Barak, Interpretation in Law, vol. 3, Constitutional Interpretation, 1994.

 

Israeli articles cited:

[53]    H. H. Cohn, ‘The Values of a Jewish and Democratic State — Studies in the Basic Law: Human Dignity and Freedom’, HaPraklit — Jubilee Volume, 1994, 9.

 

Foreign books cited:

[54]    C. Lyon & P. de Cruz, Child Abuse, Bristol, 2nd ed., 1993.

[55]    A. B. Wilkinson & K. Mck. Norrie, The Law Relating to Parents and Child in Scotland, Edinburgh, 1993.

[56]    P. M. Bromley & N. V. Lowe, Family Law, London, 7th ed., 1987.

[57]    C. Barton & G. Douglas, Law and Parenthood, London, 1995.

[58]    M. A. Straus & D. A. Donnelly, Beating the Devil Out of Them: Corporal Punishment in American Families, 1994, New York.

 

Foreign articles cited:

[59]    D. Orentlicher, ‘Spanking and Other Corporal Punishment of Children by Parents: Undervaluing Children, Overvaluing Pain’, 35 Hous. L. Rev., 1998, 147-185.

[60]    S. A. Davidson, ‘When is Parental Discipline Child Abuse? The Vagueness of Child Abuse Laws’, 34 U. Louisville J. Fam. L., 1995-1996, 403.

[61]    K. K. Johnson, ‘Crime or Punishment: The Parental Corporal Punishment Defense — Reasonable and Necessary or Excused Abuse?’, U. Ill. L. Rev., 1998, 413.

 

Jewish Law sources cited:

[62]    Exodus 10 2.

[63]    Rabbi Avraham Ibn Ezra, Commentary on Exodus 10 2.

[64]    I Samuel 6 6; 31 4.

[65]    Numbers 22 29.

[66]    Judges 19 25.

[67]    I Chronicles 10 4.

[68]    Jeremiah 38, 19.

[69]    Babylonian Talmud, Tractate Sanhedrin, 56b.

 

For the appellant — Avner Schnetzer.

For the respondent — Hovav Artzi, Senior Assistant to the State-Attorney.

 

 

JUDGMENT

 

 

Justice D. Beinisch

The appellant, the mother of the child H.B., who was born in 1987 (hereafter — H or the girl), and of the child N.B., who was born in 1989 (hereafter — N or the boy), was convicted in the District Court of assaulting her children and abusing them. She is appealing this conviction before this court.

According to the indictment, on various occasions during the years 1994-1995 the appellant hit her two children on the bottom and slapped their faces. In addition, the appellant was charged with hitting her daughter, on an unknown date, with a vacuum cleaner. She was also charged with hitting her son, on Yom Kippur 1994, in his face with her fist, and breaking one of his teeth. For these acts the appellant was indicted for child abuse, an offence under s. 368C of the Penal Law, 5737-1977, and for assault of a minor, an offence under s. 368B(a) (last part) of the Penal Law.

The Tel-Aviv–Jaffa District Court (per Justice S. Rotlevy) decided not to convict the appellant of assaulting a minor under s. 368B(a), but it convicted her of an offence of assault under s. 379 of the Penal Law. The appellant was also convicted of an offence of child abuse. In the sentence, the court put the appellant on probation for eighteen months, and the probation officer was ordered to report to the court about progress in the treatment once every three months. The appellant was also sentenced to twelve months’ imprisonment that was suspended over a three year period from the date that the sentence was given.

Before us is an appeal both against the conviction and against the severity of the sentence.

The verdict of the District Court

1.    Following information that was received by the Ramat-Gan police from a welfare officer, the children were summoned on 24 October 1995 to give testimony before the child interviewer Ami Ron (hereafter — the child interviewer). The children’s testimonies before the child interviewer were submitted as evidence in the trial court under s. 9 of the Rules of Evidence Amendment (Protection of Children) Law, 5715-1955 (hereafter — the Protection of Children Law).

The child H testified before the child interviewer that the appellant used to smack her and her brother on their bottoms, and she confirmed that these smacks were painful and left a red mark. The girl was asked by the child interviewer about smacks that she received on other parts of her body, and she replied that the smacks were only on her bottom. The girl denied that she had been bitten by the mother, and she said that her mother’s boyfriend did not smack her or her brother. When she was asked whether she was hit by the appellant with a belt or a stick, she did not reply, but she told of an occasion when she was hit by her mother with a vacuum cleaner on the waist ‘and when I got up it hurt a lot’ (prosecution exhibit 6 at pp. 19-20). In reply to the child interviewer’s question about the loss of N’s tooth, the girl said that on a day when there was no school she and her brother were at home: N was making noise and behaving wildly ‘so mummy wanted to give him a punch, and that was what happened: his tooth fell out’ (ibid., at page 17). The girl also said, without being asked, that her brother was smacked more than her: ‘she gives me less because I behave nicely and he [N] does not listen…’ (ibid., at page 23). She added that on the morning of the day on which she was interrogated, ‘he [N] again caused trouble… so mummy gave him a slap here and he cried…’ (ibid.). With regard to the frequency of the smacks, the girl said that she was smacked ‘every day’ (ibid., at page 22). The child interviewer found the testimony of the girl H reliable, natural and realistic, and he added that the girl ‘is not vengeful and does not express any anger towards the mother. There are no contradictions in her statements’ (prosecution exhibit 7, at page 3).

The trial court held that the testimony of the girl that was given before the child interviewer was reliable, in view of the signs of truth that emerged from her testimony, and in view of the court’s impression from listening to the tape of the conversation between the girl and the child interviewer and from reading the transcript of the conversation between them. The court said that the interview of the girl was flowing and that the tone of her speech on the tape changed in accordance with the contents of her statements. The court also received the impression that although H’s language was not rich, nonetheless her remarks were clear, based on reality, intelligible and logical, and she clearly distinguished between the different figures in her life. The trial court further found that the girl tried to give exacts details about what she was saying, to the best of her ability, and that she was uninterested in maligning her mother or in making up stories.

The court accepted the assessment of the child interviewer that it was possible that the girl exaggerated when she said that she was smacked ‘every day’. Nonetheless, the court raised a hypothesis that the girl might not be distinguishing between physical blows and anger and shouting, and therefore she claimed that the smacks occurred every day. The court went on to say that even if the smacks were not inflicted every day but less frequently, this fact did not, in its opinion, undermine the reliability of the girl’s testimony.

2.    The boy N, in his testimony before the child interviewer, described the angry responses of his mother to wild behaviour or noise made by him or his sister. He also spoke of the mother’s violent responses: he told how he had been smacked on his bottom or his head with a rubber sandal and he said that his mother hit him with the sandal also on his neck and his hand. He also added: ‘she can also give me slaps’ (prosecution exhibit 9, at pages 10-11). The boy testified of his own initiative about the occasion when he lost the tooth, and his description exactly matches the description of his sister about that same occasion: ‘Do you know why I lost a tooth?... because she [the appellant] gave me a punch… because I made a lot of noise. She told me to be quiet’ (ibid., at p. 9) The boy also said that he was hit more than his sister ‘… because I make more noise’ (ibid.). With respect to the frequency of the smacks, he said that he was smacked about once a week, and that the last time he was hit was ‘when my tooth fell out’ (ibid., at pp. 11, 14). After he finished what he had to say, the boy was asked if he would like someone to speak to his mother so that she would stop hitting him, and he said that he would.

The child interviewer thought that the testimony of the boy N was reliable. The trial court held that his impression in this respect was well-founded: the boy’s statements corresponded with the testimony of his sister both in minor details (such as the joint daily schedule of the two children) and in material points (such as the circumstances in which N lost his tooth). The boy’s description of being hit with a sandal was strengthened by the testimony of the appellant, according to which she had the habit of throwing shoes at them; even N’s testimony that the appellant gave him ‘slaps’ is strengthened by the very testimony of the appellant that she sometimes gave the children ‘friendly slaps on the neck’. The court thought that the description of the violence given by the boy was not melodramatic or exaggerated, and as with his sister’s attitude, it appeared that with N also the harsh responses of the mother to his behaviour were integrated naturally into his life.

The trial court addressed the fact that the testimony of the boy was different from the testimony of his sister in two details: the frequency of the hitting (H claimed that the hitting took place every day whereas N said that it occurred once a week), and the last time when N was hit (H claimed that on the very morning of the day of the interview before the child interviewer the appellant slapped N’s face, whereas N testified that the last time he was hit by the appellant was when he lost his tooth). Despite these points of difference, the court held:

‘This discrepancy does not undermine the credibility of either of the children. From their testimony, from the testimony of the accused [the appellant] and from other evidence it transpires that the atmosphere in the home was an atmosphere of strict education, shouting and violence.

It could well be that, unlike a hit with a sandal and a punch to his face, a “mere” slap is not considered by N to be a real hit, and it could be that he did not wish to speak about the event that morning, in the light of the statements of H, who said that he did not want them to know what happened to him (even though we cannot ignore the fact that N raised the issue of losing his tooth of his own initiative).

In any event, these discrepancies do not detract from the credibility of N’s testimony, and I find that it is reliable’ (page 60 of the verdict — square parentheses supplied).

3.    The three kindergarten teachers who taught the children in 1994 testified in the trial court. According to the kindergarten teachers, the two children was frequently late for the kindergarten, almost every day, and were even absent on a significant number of days. Each of the kindergarten teachers testified that she saw marks on the children’s bodies that appeared to be from hitting.

N’s kindergarten teacher said that at least on two occasions that were three weeks apart, the boy came to the kindergarten with signs of violence next to his eye. When the kindergarten teacher asked the appellant for an explanation as to the marks, the appellant replied that it was an allergy, and for several days thereafter she did not send N to the kindergarten. The kindergarten teacher added that when she approached N he would respond by shrinking from her and a movement indicating fear, in her words ‘like do not touch me’ (p. 10 of the court record).

The kindergarten teacher’s assistant in H’s kindergarten said that the girl appeared at the kindergarten one day with yellow marks on her hand. According to the teacher’s assistant, she asked H about the marks, and the girl told her that the appellant hit her with a stick, because her room was not tidy. The teacher’s assistant also testified that:

‘Also when I used to speak to them, more than once when I simply raised my hand, she (H) made a defensive movement and was even prepared to hide under the table because she thought that I wanted to hit her, and this did not happen only on one occasion but frequently’ (p. 14 of the court record).

H’s kindergarten teacher told how the girl was absent from the kindergarten for three days, and when she returned to the kindergarten she said that the appellant had hit her on the arm. According to the teacher, it was not easy for the girl to say this, and it took time until she worked up the courage to say that she had been hit by the mother. The kindergarten teacher testified that when H told her about the hit that her mother gave her on her arm, she saw a blue mark, like that of internal bleeding, in the area indicated by H.

The trial court held that the testimonies of the kindergarten teachers who taught the children were, in its opinion, credible. It added that it received the impression that they were motivated by the best interests of the children, and it could not be said that the kindergarten teachers tried to exaggerate the severity of the findings or to make up stories about the appellant, as the appellant claimed.

4.    The appellant herself made two statements to the police. Both in her statements to the police and in her testimony in court, the appellant did not deny that she hit her children. She even admitted that the methods of education adopted by her were harsher than the norm, but she claimed that she hit her children only when it was essential, and she added: ‘I regard the hits as a deterrent’ (prosecution exhibit 2). According to her, she does not hit her children frequently and she ‘does not count the days from one case where he [N] receives a slap or a smack on the bottom to the next’ (ibid.). With regard to the nature of the hits, the appellant said that she hits N on his bottom ‘and sometimes, in jest, a friendly slap on the neck’ (ibid.). When the appellant was confronted with what the children said about the specific occasions described by them, she denied them. Thus, for example, when she was asked in her interrogation by the police whether she hit H with a vacuum cleaner, she said: ‘I really do not remember such an occasion’ (ibid.). In her testimony in court, she presented a different position, when she said: ‘I never hit my daughter with a vacuum cleaner. I do not have a vacuum cleaner at home…’ (p. 30 of the court record). The appellant was confronted also with N’s description of his being hit with a rubber sandal on various parts of his body, such as his bottom, his head, his neck and his hand. She denied hitting her son with the sandal, but she made a partial admission that ‘it may be that once I threw a shoe in his direction’ (prosecution exhibit 2). According to her, when she is tired and asks one of the children to do something, she throws a shoe at him and he understands her meaning and does it: ‘it is agreed and he knows that nothing will happen to him…’ (p. 33 of the court record).

The appellant did not deny the fact that N lost his tooth, especially in view of the photographs in which the boy was seen to be missing a tooth. Nonetheless, unlike her children who described how they had been making noise and in consequence their mother had hit N with her fist and one of his teeth fell out, the appellant presented a more complex story. According to her, the children were hitting each other so hard that she became afraid for their safety. While she took H to one room, N went into the bathroom. The appellant went in after him and began to scold him. According to her, ‘he began to tell me that she (H) did this and that, and to justify himself, to drive me crazy with stories. He did not express any regret at all. I became very angry with him and gave him a slap on the mouth and then the tooth came out and a little blood trickled out…’. According to her, the tooth was a milk tooth that had already become loose in his mouth. In her testimony in court she added that at the time of the event she had not acted in an uncontrolled manner and that ‘it is not correct that I became heated’ (p. 32 of the court record).

The appellant admitted that during the period stated in the indictment, the children did not come to the kindergarten regularly. In her first statement at the police she said that it happened as a result of a difficult and traumatic period for her, in which she suffered also from health problems. Notwithstanding, in her testimony in court she changed her position and claimed that ‘with all respect to the education establishment, the home is also important and a day out with the mother teaches more than the kindergartens’ (p. 28 of the court record). When she was asked about her reply to the police, she answered that this was ‘an answer that I gave to satisfy them at that time’ (p. 37 of the court record).

The appellant did not express regret for hitting her children and even refused to undertake to stop hitting the children when it seemed to her necessary.

The trial court did not put any faith in the testimony of the appellant, and it held that it was given manipulatively, while the appellant tried to present herself as a victim of the welfare services and the court, of the education system and the kindergarten teachers, and as a victim of her children’s lies. Thus, for example, the court held that the explanations given by the appellant about the absences of her children from the kindergarten were not credible in view of the statements of the kindergarten teachers and the testimonies of the children. It was held that it was more reasonable that the late arrivals and absences of H and N from the kindergarten were the result of the appellant not troubling to get up in the morning and prepare them to go to the kindergarten, and of her attempts to hide the bruises from the kindergarten teachers.

5.    The testimonies of the children before the child interviewer constituted the basis for proving the guilt of the appellant. In view of the finding that the testimonies of the two children were credible, the trial court proceeded to examine whether their testimonies could be corroborated, in accordance with the requirement of s. 11 of the Protection of Children Law.

With regard to the charge of hitting the children during 1994, the trial court found that the testimonies of the children corroborated each other, and it also found corroboration in the testimonies of the kindergarten teachers who taught the children at the relevant period. With regard to hitting the children in 1995, it was held that the statements of the children corroborated one other, and they were also corroborated by the statements of the appellant herself. With regard to the part of the indictment concerning the hitting of H with a vacuum cleaner, it was held that there was no specific corroboration of this, and therefore it was not possible to determine that the alleged incident actually occurred.

Relying on the testimonies of the children and the corroboration thereof, the trial court held that the children were hit by the appellant on various parts of their bodies (head, neck, hands, bottom), and that sometimes the appellant used to throw shoes at them and at other times she hit them with a sandal. The trial court rejected the explanation of the appellant about throwing shoes at her children, saying:

‘… this explanation is, at the least, incomprehensible. “Training” children by throwing shoes is a totally unacceptable measure. The claim that the child agrees to it and understands that he will not be hurt shows more than anything that the children are regarded by the appellant as her property, with which she can do as she likes. At her whim, she may hit them on their mouths or their bottoms, and at her whim, she may throw shoes at them, threaten them or punish them.

Her remarks contain corroboration of N’s statements about his being hit with a shoe or a sandal, and although this item is not expressly mentioned in the indictment, it constitutes a part of the overall charge of hitting’ (p. 68 of the verdict).

The trial court added that in this case the use of systematic and prolonged violence by the appellant against her children had been proved: even if each act of hitting on its own was not ‘cruel’ and on its own could be regarded only as an act of assault, all the incidents taken together and the whole picture of the cumulative violence were serious, and amounted to abuse.

6.    Further on in its verdict, the trial court discussed the part of the indictment that concerned the loss of N’s tooth. It held that the description given by the children about the incident of losing the tooth was not significantly different from the appellant’s version of this incident: from both of them it transpired that the appellant hit N hard on his mouth and as a result N’s tooth fell out. The trial court pointed out in this respect that it was irrelevant whether it was a slap (as the appellant claimed) or a punch (as the children testified). The court further held that it was possible that the milk tooth was about to fall out and that therefore the loss of the tooth was not the result of a blow hard enough to break a permanent tooth, but the blow was strong enough to be a painful and traumatic event not only in the memory and body of N, but also in the memory of his sister H. Notwithstanding, the court held that no intention had been proved on the part of the appellant to cause the boy real harm. Therefore, because of the incident in which the tooth fell out the court did not see fit to convict the appellant of an offence of assaulting a minor under s. 368B(a) of the Penal Law, and it chose to convict her for that act of the offence of assault under s. 379 of the Penal Law.

7.    As shall be discussed extensively below, the appellant argued before the trial court that even if the factual elements of the said offences were proved, her acts did not amount to assault or abuse, since punishing her children with corporal punishments in order to educate them to obey does not breach any legal norm. The trial court rejected this argument, and it held that imposing punishments on children on a regular basis, hitting a child on his mouth, throwing a shoe at him and hitting him with a sandal do not pass the test of reasonableness and are wrong from a legal and moral viewpoint.

In conclusion, the appellant was convicted of the offence of child abuse and the offence of assault.

The proceedings in the appeal

8.    At the outset I should point out that I found no basis to overturn the findings of fact and credibility held by the trial court. The District Court heard the witnesses that appeared before it and formed an impression of them. It also heard the tape of the conversation between the children and the child interviewer and stated in detail how it was impressed by their testimonies. According to the policy of this court, we see not basis for overturning the conclusions of the trial court in these matters.

Corroboration under s. 11 of the Protection of Children Law

9.    The first argument of counsel for the appellant is that the trial court erred when it held that there was the required corroboration for the testimony of the children before the child interviewer.

The nature of the provisions regarding the testimony of children under the Protection of Children Law was described by Justice Goldberg as follows:

‘The Protection of Children Law was designed to balance between three interests; the social interest in bringing offenders to trial and punishing them; the social and private interest in protecting children from additional emotional damage resulting from exposing them to legal proceedings, including their cross-examination, and the interest — shared by the accused and society — in holding a fair trial and discovering the truth.

The balance in the statute is reflected in the provisions enacted therein. The protection of children is reflected, inter alia, in the provisions that state that a child may be interviewed only by a child interviewer, or in testimony in court with the permission of a child interviewer (s. 4 of the Law)… the social interest in the punishment of offenders is reflected in the fact that testimony obtained by a child interviewer is made admissible, even though it has not stood the test of cross-examination, and notwithstanding the rule disqualifying hearsay evidence (s. 9 of the Law). And the interest in a fair trial and discovering the truth is reflected in ss. 10 and 11 of the Law. Under s. 11, a person may not be convicted on the basis of evidence obtained by a child interviewer unless it is corroborated by other evidence’ (LCrimA 3904/96 Mizrahi v. State of Israel [1], at p. 395).

In the present case, the children did not testify before the District Court, because of the fear that testifying in court would cause them psychological harm (prosecution exhibit 7, at p. 3; prosecution exhibit 10, at p. 3; p. 24 of the court record). As stated, the children’s testimonies before a child interviewer were submitted as evidence to the court, under s. 9 of the Protection of Children Law.

Relying on the testimony of a child before a child interviewer, without the court having an opportunity to form a direct impression of the child and his testimony, and without the accused having an opportunity to cross-examine the child, violates the rights of the accused. The requirement of corroboration for the testimony of a child under s. 11 of the Protection of Children Law is intended to mitigate the severity of this violation, and to ensure the holding of a fair trial. Consequently it has often been held that the corroboration required under s. 11 of the Protection of Children Law is not a mere technicality but a substantive and real requirement (see: CrimA 192/56 Yehudai v. Attorney-General [2], at p. 367; CrimA 532/82 Faber v. State of Israel [3], at p. 247; CrimA 694/83 Danino v. State of Israel [4], at p. 263). It has been further held that, in order for evidence to serve as corroboration, it must comply with three separate conditions: it must derive from a source that is separate and independent from the testimony that requires corroboration; it must implicate or tend to implicate the accused with liability for committing the act alleged against him, even though it need not refer to all of the elements of the act; and in addition it must refer to a material ‘point’ in dispute between the parties (see: CrimA 387/83 State of Israel v. Yehudai [5], at p. 203; CrimA 4009/90 State of Israel v. A [6], at p. 297). To this we must add that the probative weight of the corroboration required varies from case to case, in accordance with the credibility and probative weight of the main testimony requiring corroboration (see: CrimA 4009/90 State of Israel v. A [6], at p. 298; CrimA 1121/96 A v. State of Israel [7], at p. 360).

10. The argument of counsel for the appellant before us is that the trial court erred in that it regarded the testimonies of the children as mutual corroboration for the purpose of s. 11 of the Protection of Children Law. This argument must be rejected. Our case-law has already established many times that testimony that requires corroboration may itself act as corroboration. Thus, for example, it has been held that the testimonies of partners in crime may corroborate each other, when they require corroboration (see, for example: CrimA 85/80 Katashwilli v. State of Israel [8], at p. 69; FH 25/80 Katashwilli v. State of Israel [9], at p. 464). This approach applies also to the testimonies of children made before a child interviewer. Even though these testimonies require corroboration under s. 11 of the Protection of Children Law in order to serve as the basis for a conviction, they can corroborate each other (see, for example: Danino v. State of Israel [4], at p. 262; CrimA 4009/90 State of Israel v. A [6], at pp. 297-298).

In the case before us, the child interviewer obtained the testimonies of the two children separately, so that neither knew nor was influenced by the contents of the other’s testimony. The trial court found the testimony of each of the children credible and was prepared to rely on what they said. The two children testified about the harsh discipline that prevailed in their home, about their mother’s anger in various circumstances and about her violent responses. Both of them testified that N suffered most of the blows, and they explained that of the two of them he was the one who made more noise and behaved more wildly. Both of them told how they had been smacked by their mother on their bottoms. The main corroborating evidence is the description of the incident in which N’s tooth fell out. Thus we see that the testimonies of H and N support one another and confirm one another on material points, and therefore they constitute mutual corroboration.

11. The other argument of counsel for the appellant in this respect is that the trial court erred when it found corroboration of the children’s testimonies in the testimonies of the kindergarten teachers. This argument has no merit; the kindergarten teachers testified that they saw marks of violence on the bodies of H and N. This constitutes corroboration of the testimonies of the children that they were hit. The trial court was also right in holding that the testimonies of the kindergarten teachers with regard to the behaviour of the children in the kindergarten (such as the children making defensive movements and recoiling when the kindergarten teachers approached them) are similar to testimony about the mental state of a victim of a crime, and as such they can corroborate the testimony of the children about the commission of acts of violence against them (cf. A v. State of Israel [7], at pp. 361-362).

The appellant herself admitted that she was accustomed to hitting her children, to throw shoes at them, and even sometimes to give them ‘slaps’ on the neck. She also admitted that her violence resulted in the loss of N’s tooth. Therefore it is possible to hold that there is corroboration for the testimonies of the children about their being hit by their mother, even in the statements of the appellant herself. It can be held, therefore, that there is sufficient corroboration for the testimonies of the children about the violence that the appellant inflicted on them.

The offence of abuse

12. Counsel for the appellant also argued before us that the evidence contains nothing to indicate that his client abused her children.

Section 368C of the Penal Law, which is titled ‘Abuse of a minor or helpless person’ says as follows:

‘Someone who does to a minor or to a helpless person an act of physical, emotional or sexual abuse shall be liable to seven years’ imprisonment; if the perpetrator was in charge of the minor or the helpless person, he shall be liable to nine years’ imprisonment.’

The Penal Law does not define the concept of ‘abuse’. Even the explanatory notes of the draft law and the proceedings of the Knesset did not give it any definition (see the draft Penal Law (Amendment no. 31), 5749-1989; Knesset Proceedings 115 (5750) 609. See also LCA 1684/96 ‘Let the Animals Live’ Society v. Hamat Gader Vacation Enterprises Ltd [10], at p. 847, per Justice M. Cheshin).

We referred to the dictionary definition of the word ‘abuse’, in order to obtain a starting point for interpretation. A. Even-Shoshan defines the word ‘abuse’ in his dictionary as follows:

‘Harsh and cruel behaviour; inhuman treatment’ (A. Even-Shoshan, The New Dictionary, vol. 1, 1998, at p. 319).

The linguistic meaning does not necessarily express the legal meaning, and therefore we cannot resort merely to the linguistic definition in order to determine what is ‘an act of abuse’, within the meaning of the statute. The legal meaning of the language of statute is to be interpreted in accordance with the purpose of the statute and by exercising judicial discretion (A. Barak, Interpretation in Law, vol. 2, Interpretation of Statute [47], at pp. 79-104).

With regard to the purpose of the legislation, we should note that s. 368C of the Penal Law is included in article 6A of chapter 10 of the Penal Law. This article is concerned with harm to minors and helpless persons and it was enacted within the framework of the Penal Law (Amendment no. 26), 5750-1989 (hereafter — Amendment no. 26). From the explanatory notes to the draft law we can deduce the purposes that were the basis for the change of the statute. These say the following:

‘Harming persons who cannot protect themselves, such as children, the elderly and the disabled, whom in this draft law are described as helpless persons, justifies special consideration of the legislator, both with regard to sentencing and also with regard to the duty to report harm done to helpless persons’ (draft Penal Law (Amendment no. 31), at p. 146).

The amendment of the Law that introduced section 368C reflects a social trend that developed particularly in the period preceding the enactment of the amendment. The increasing social awareness as to the seriousness of the phenomenon of harming children and helpless persons and the extent of this phenomenon led the Israeli legislator to treat the perpetrators of these acts more severely. This awareness led to a more intense struggle against the negative phenomena of this kind not merely in Israel but also in other countries. Against this background, and in accordance with the wording of the section, there can be no doubt that one of its purposes is to protect children and helpless persons from the harm to which they are exposed. With this in mind, let us consider the meaning of the word ‘abuse’ in section 368C of the Penal Law.

From the wording of the section we can see that the legislator recognizes three types of abuse: physical abuse, sexual abuse and emotional abuse. The boundaries between the types of abuse are frequently blurred. Thus, for example, cases of sexual abuse may also include bodily or physical abuse, and cases of physical and sexual abuse may of course also include emotional abuse (see C. Lyon & P. de Cruz, Child Abuse [54], at p. 12).

In the case before us, the dominant element in the violence done by the appellant to her children is physical, so we will focus on the question of the existence of ‘physical abuse’ in this case.

13. What is ‘physical abuse’? What distinguishes between it and the offence of assault, and where is the boundary between them? The answer to these questions is not simple. As a rule, it would appear that abuse, including physical abuse, refers to cases of a nature and type that our conscience and feelings cannot regard merely as acts of assault. Because abuse is behaviour that involves cruelty, intimidation or degradation — the nature of which we shall consider below — it acquires a stigma of immorality which does not necessarily accompany every criminal act that involves the use of force.

Just as it is difficult to give a comprehensive and exact definition of the word ‘abuse’, it is equally difficult to define ‘physical abuse’, because of the conception that abuse has a negative ethical-normative meaning, which describes a multi-faceted phenomenon that incorporates a large number of possible behaviours (see Lyon & de Cruz [54] supra, at pp. 3-4). Our case-law, which has in many cases upheld convictions on an offence of abuse, has only minimally addressed the meaning of the term, and has not yet given it a comprehensive definition. Notwithstanding, case-law has given substance to the offence of abuse as it has progressed from case to case. We too shall not presume to give a comprehensive definition, and we shall confine ourselves to presenting the elements of the offence and the traits that in our opinion characterize cases of ‘physical abuse’.

14. The offence of abuse is an offence of behaviour and not an offence of consequence. For this reason, the prosecution does not need to prove that actual damage has been caused when it seeks to prove that an offence of abuse has been committed. As Justice Dorner said in CrimA 5224/97 State of Israel v. Sedeh Or [11], at p. 383:

‘The offence of abuse of a minor under section 368C of the Penal Law is an offence of behaviour, and not an offence of consequence whose completion is dependent on proof of the occurrence of some consequence. On the contrary, it is possible to conceive of severe cases of abuse that do not leave behind any marks and yet will be considered exceptional and cruel acts.’

Physical abuse can be perpetrated by an active deed, but it can also take the share of an omission (thus, for example, it is possible to conceive of a situation in which starving or neglecting a minor amounts to physical abuse).

In general it would appear that behaviour, whether by an act or an omission, that amounts to ‘physical abuse’ includes the use of force or physical measures directly or indirectly against the body of the victim, in a manner and to a degree that are likely to cause physical or emotional damage or suffering, or both (with regard to ‘the use of force’ — cf. the definition in s. 378 of the Penal Law).

One can assess whether the behaviour has the potential to cause damage or suffering, inter alia, from the contact and from the nature of the measure adopted; from the degree of force used against the victim and its power; from the context and the circumstances in which the force or the physical measure were used; from the frequency of using them and from the period of time during which they were used; from the systematic nature of the use of force or the physical measure; from the exceptional nature of the behaviour and from its deviation from what is accepted by society, and similar criteria.

Although causing actual damage is not one of the elements of the offence of abuse, it is obvious that proof of physical or emotional damage to a victim may serve as a probative tool to prove the existence of potential to cause suffering and damage, and the severity or the exceptional nature of the act that allegedly constitutes abuse.
            Since in many cases the victim is in a position of inferiority and has a relationship of dependence upon the person abusing him, in assessing the nature of the behaviour, in assessing its force and the degree of harm caused by it, it is hard to give much weight to the attitude of the victim. It is possible that the victim did not even feel the degradation or did not recognize the cruel treatment that he received. Because of the status of the victim and in view of the purpose of Amendment no. 26 — protection of children and helpless persons — we must conclude that the decisive attitude for the purpose of determining the existence of behaviour that amounts to an offence of abuse is that of the bystander, i.e., the objective viewpoint that examines the behaviour of the abuser to the victim.

15. In addition to the aforesaid, we can point to several indicators that are characteristic of behaviour that constitutes abuse. These characteristics, even though they do not amount to a comprehensive or closed list, may be of use in identifying behaviour that amounts to abuse.

First, we will usually tend to regard as ‘physical abuse’ a case of a continuing series of acts (or omissions). In so far as continuing physical abuse over a period of time is concerned, it is possible that an act (or omission) in the chain of abuse does not of itself have a cruel or degrading nature. Notwithstanding, the accumulation of acts (or omissions) and their continuation over a period of time are what lead to a level of severity and cruelty, degradation and humiliation or intimidation that amount to abuse (see, for example, the cases considered in CrimA 3783/98 A v. State of Israel [12]; CrimA 142/97 A v. State of Israel [13]; CrimA 7861/96 A v. State of Israel [14]).

Although as a rule it is easier to identify an act of abuse when it is composed of a series of acts, even an individual act (or omission) may constitute an act of physical abuse. In order that an individual act of using force can be considered physical abuse, it must comply with a requirement that sets it aside from assault. In general, it will be characterized by one or more of the following: cruelty, significant terrorization or intimidation of the victim, blatant degradation and humiliation of the victim, or a particularly severe potential for harming him (physically or emotionally) (cf. CrimA 2696/96 A v. State of Israel [15] and also CrimFH 9003/96 Pizanti v. State of Israel [16], where it was held that an isolated act of cutting off one of the sidelocks of a sleeping child by his father amounted to emotional abuse. See also CrimA 295/94 A v. State of Israel [17], in which it was held that cutting off a girl’s hair by force in order that she will not become corrupted in her ways is an act of abuse).

Another indication that characterizes abuse is that usually the behaviour is intended to impose authority, to terrorize, punish or extort, even though this is not essential (see, for example, CrimA 2011/95 A v. State of Israel [18]).

It is also possible to point out that usually the abuser will be in a position of power of authority vis-à-vis his victim, such that the victim is in a position of inferiority, without any ability to protect himself. The result of this characteristic of disparity of strength is that often the humiliation and the intimidation of the victim are built into the act of abuse. A relationship in which there exists a disparity of strength and status between the abuser and his victim exists not only with regard to the abuse of children but is also found in other penal provisions that prohibit abuse. See, for example, s. 65 of the Court Martial Law, 5715-1955; s. 2(a) of the Cruelty to Animals Law, 5754-1994, and also s. 3(3) of the Family Violence Prevention Law, 5751-1991. When we seek to examine the existence of the elements of the offence of abuse in the relationship between a parent and his children, we must remember that in this relationship there are significant disparities of strength: the parent has the power of authority and control, whereas the child needs his parent and is dependent on him. In this disparity of strength, the child does not have the physical and emotional strength necessary to protect himself effectively against his parent. For this reason, when we seek to interpret the statute, we must give expression to the sensitive and vulnerable position of children and the position of inferiority and helplessness in which they find themselves, when an adult who has authority over them, and especially one of their parents, uses against them a physical measure that causes suffering or may cause suffering or damage, in the way described above. In such circumstances, if the characteristics that we discussed above exist, we will identify the act as ‘an act of abuse’.

16. The mental element required for an offence under s. 368C, which is as stated an offence of behaviour, is mens rea according to the meaning thereof in s. 20(a) of the Penal Law (see Sedeh Or v. State of Israel [11], at pp. 383-384). Therefore, proof of an intent to produce a harmful outcome is not required, providing that there was an awareness of the nature of the behaviour (the acts or the omissions) and the existence of the relevant circumstances set out in the offence under discussion.

17. In concluding this part I would further add that since we have held that the term ‘abuse’ inherently incorporates a negative ethical meaning, it is difficult to conceive of circumstances in which an act of abuse will be justified. Since abuse is behaviour that includes cruelty, intimidation or humiliation, it acquires the stigma of a moral deviation, which is not necessarily applicable to every act of using force even if it is prohibited.

Consequently, if we determine that a certain act (or omission) constitutes abuse (as opposed to assault), we adopt a negative moral attitude towards it which is inconsistent with a justification in law, or with a defence of justification that is based on an accepted social norm (with regard to a social norm as a justification, see Prof. S.Z. Feller, Fundamentals of Criminal Law, vol. 2 [48], at pp. 497-500).

From the general to the specific

18. In the case before us, the appellant is the mother of the children and therefore she falls within the definition of ‘… a person responsible for the minor or for the helpless person…’ in s. 368A of the Penal Law. This fact is an element that constitutes an aggravating circumstance with regard to an offence under s. 368C.

As stated above, the children were hit by the appellant during the years 1994-1995. The appellant hit the children on various parts of their bodies (head, neck, hands, bottom), sometime with a sandal and sometimes by throwing shoes. We are not talking of an isolated act, but of a pattern of violent and continuing behaviour. The children were hit by the appellant frequently and systematically, until the children, who were under her control, learned their ‘lesson’ that there was a connection between their behaviour and the violence being directed against them. This was the impression of the trial court, which held that the violence that the appellant inflicted on the children became part of their lives and seemed to them to be ‘natural’.

It is possible that each individual hit was not, in itself, cruel. Nonetheless, the systematic nature of the hitting, its continuation over a period of time and the frequency of the violence experienced by the children from their mother, being hit with an object such as a sandal and also the atmosphere of terror and harsh authority that prevailed in the home, where trivial matters were followed by a painful physical blow and outbursts of rage — all of these indicate that we are dealing with cruel behaviour of the mother to her children and humiliating them, regarding them as property that she can do with what she wishes.

There is no doubt that the violence directed by the appellant against the children had the potential to damage them; what is more, the kindergarten teachers noticed bruises on the bodies of H and N, and even testified about the recoiling and the fear that overcame the children when they approached one of them; the recoiling indicated their emotional state as battered children. Thus the trial court was correct in holding that the appellant’s acts of violence against her children amounted to abuse.

It is indeed possible that the appellant did not intend to cause harm to her children, and she said with regard to hitting N on his mouth: ‘I did not intend to harm him and I am sorry’ (prosecution exhibit 2). But, as we have already made clear, the absence of intent to abuse or to cause harm on the part of the appellant is irrelevant in determining whether the offence under s. 368C of the Penal Law was committed.

19. I should point out in this regard that s. 368B(a) of the Penal Law, which deals with an assault of a minor or a helpless person that causes him real injury, an offence with which the appellant was charged, does not require the assailant to intend to cause a serious injury; a mental state of rashness with regard to the possibility of causing this outcome is sufficient. For this reason, the blow that the appellant gave N on his face and which caused his tooth to fall out (and for this purpose, it is irrelevant whether we are talking of a milk tooth that was already loose in the child’s mouth or not) complies with the elements of the offence under s. 368B(a) of the Penal Law, and at the very least with the aggravating circumstances for the offence of assault set out in s. 382(b) of the Penal Law. The appellant was fortunate in that she was convicted for this incident only of an offence of assault under s. 379 of the Penal Law, and not of one of these two more serious offences.

Corporal punishment administered by a parent to his child

20. Counsel for the appellant argued before us that the blows with which the appellant hit the children do not amount to a criminal offence, since they were corporal punishments that the appellant gave to her children as disciplinary measures, in order to teach them to improve their behaviour.

This argument, which was also made in the District Court, raises the question of the legitimacy of corporal punishment inflicted by a parent on his child. The learned judge in the trial court rejected this argument out of hand, after a broad and comprehensive consideration of the subject of the legitimacy of corporal punishment given by parents to their children.

I agree with the conclusion that the judge reached, which she expressed as follows:

‘The court that determines judicial and ethical norms must decry the violence of parents against their children, even when they are dressed up as “educational philosophy”, and root out these phenomena once and for all.’

21. The question of the legitimacy of the corporal punishment of children by their parents is not uniquely ours, and many other countries are addressing it. A variety of approaches to this issue can be found, and the differences between these arise from ethical, social, educational and moral outlooks that have developed over the years in different societies.

One approach, which is the tradition of the English common law, is that the parent has a defence against criminal prosecution, if he gives his child ‘reasonable’ corporal punishment. This approach puts the emphasis on parental rights and authority. According to this approach, the right of parents to raise their children is expressed, inter alia, in their authority to decide the way in which they raise and educate them; within the framework of carrying out their duty to do what is best for their children, the parent may also adopt disciplinary measures, including the use of force. Therefore if a parent acts with a proper motive and thinks that corporal punishment is a proper disciplinary measure, there is no reason to intervene in his discretion, as long as the use of force against the child is not disproportionate and does not exceed what is required in order to achieve the educational goal. According to this approach, the advantage of the test as to the ‘reasonableness’ of the punishment is that it supplies the flexibility necessary to consider the circumstances of each case independently (see: D. Orentlicher, ‘Spanking and Other Corporal Punishment of Children by Parents: Undervaluing Children, Overvaluing Pain’, 35 Hous. L. Rev., 1998, 147 [59]; S. A. Davidson, ‘When is Parental Discipline Child Abuse? The Vagueness of Child Abuse Laws’, 34 U. Louisville J. Fam. L. [60] at pp. 405-407, 410,411; and cf. A. Barak, ‘Immunity from Liability or Prosecution; Denying the Victim’s Right or Denying his Claim’, The Law of Torts — the General Doctrine of Torts [49], at p. 423).

Thus it was held in English common law as long ago as 1860 that a parent will not bear criminal liability if he gives his child ‘reasonable and moderate’ corporal punishment. In R v. Hopley (1860) [40], the court held, at p. 1026, that:

‘… a parent or a schoolmaster… may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or of rage, or if it be immoderate and excessive in its nature or degree, or if it be protracted beyond the child’s powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to the life or limb; in all such cases the punishment is excessive, the violence is unlawful, and if evil consequences to life and limb ensue, then the person inflicting it is answerable to the law, and if death ensues it will be manslaughter.’

Over the years, English case-law has held that the ‘reasonableness’ of the punishment will be examined in accordance with all the circumstances of the case, taking into account the age of the child, his physical condition, his level of understanding and emotional maturity. The method of punishment will also be examined in accordance with the length of time during which it was used and the reason for which the force was applied (see: Lyon and de Cruz, supra [54], at p. 8; A. B. Wilkinson, K, Mck. Norrie, The Law relating to Parents and Child in Scotland [55], at pp. 179-180; P. M. Bromley, N.V. Lowe, Family Law [56], at p. 274).

The authority of a parent to punish his child with corporal punishments finds expression also in English legislation. Statute gave this status also to teachers, educators and guardians. Section 1 of the Children and Young Persons Act, 1933, which was amended in the children Act, 1989, prescribes an offence of cruel treatment of a child under the age of 16. Section 7(1) of the said Act provides:

‘Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person having the lawful control or charge of a child or young person to administer punishment to him.’

An attempt that was made in England to pass a law changing the common law ruling authorizing parents to administer corporal punishment to their children was unsuccessful (see C. Barton, G. Douglas, Law and Parenthood [57], at p. 151); however, s. 47 of the Education Act, 1986, repealed the authority of teachers and educators in public schools and schools supported by the State to use corporal punishment against pupils. In this regard, see Lyon and de Cruz, supra [54], at pp. 242-243.

The American Model Penal Code, which is used as a basis for many criminal codes in the States of the United States, also provides a defence for a parent who uses force against his child for the purposes of education and discipline. It states:

‘The use of force upon or toward the person of another is justifiable if:

(1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian or other responsible person and:

(a) The force is used for the purpose of safeguarding or promotion the welfare of the minor, including the prevention or punishment of his misconduct; and

(b) The force used is not designed to cause or known to create substantial risk of causing death, serious bodily harm, disfigurement, extreme pain or mental distress or gross degradation; or…’ (Part I, Article 3, s. 3.08)

According to the American Model Penal Code, the criminal law of many of the States of the United States contains a defence that allows parents to administer ‘reasonable’ corporal punishment for educational purposes and imposing discipline. In these States it has been held that the court, in considering the ‘reasonableness’ of the punish inflicted on the child, will examine the personality of the child, the age and sex of the child, his physical and emotional state, the need to use force and its degree. It has also been held that corporal punishment that a parent inflicts on his child out of anger and loss of control does not serve any educational purpose, and therefore the parent will not be exempt from criminal liability (see, for example, State v. Arnold [36]).

Several States in the United States have determined a statutory definition for the ‘reasonableness’ of the corporal punishment that a parent may inflict on his child. Sometimes the definitions are broad. Thus, for example, the law in the State of Pennsylvania, like the Model Penal Code, provides that the corporal punishment inflicted by a parent on a child will not lead to criminal liability if:

‘the force used is not designed to cause or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation’ (18 Pa.C.S.A. s. 509(1)(ii)).

In the State of North Dakota, corporal punishment inflicted by a parent on his child is not improper as long as it does not cause serious injury, which is defined in the language of the statute as ‘serious physical harm or traumatic abuse’ (see N.D.C.C. s. 50-15.1-02(2) (Supp. 1995); see also Raboin v. North Dakota Dept. of Human Serv. (1996) [37], in which it was held that the ‘educational’ hits of parents did not amount to child abuse, since no evidence had been found of such damage).

A small number of States in the United States grant parents an exemption from criminal liability for using ‘reasonable force’, as long as it is not proved that they acted with intent to harm the child. See the prosecuting guidelines in V. I. Vieth, ‘When Parental Discipline is a Crime: Overcoming the Defense of Reasonable Force’, 32 AUG Prosecutor 29. With regard to the different approaches of legislation in the various States of the United States, see K. K. Johnson, ‘Crime or Punishment: The Parental Corporal Punishment Defense — Reasonable and Necessary or Excused Abuse?’ [61].

In Canada, s. 43 of the Criminal Code, which has the title ‘Correction of child by force’, says the following:

‘Every schoolmaster, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances’ (R.S.C., 1985, vol. III, c. C-46, s. 43 (1985)).

This section has been included in the Criminal Code of Canada since 1892. Canadian case-law has held that the requirement in this section 43 that the use of force must be done in order to correct the behaviour and education of the child does not exist if the purpose of the use of force is to instil fear in the heart of the child (R. v. Komick (1995) [41], at para. 51), or if the parent used force against the child in an uncalculated way, out of anger and loss of control (R. v. D. W. (1995) [42], at para. 13); R. v. D. H. (1998) [43], at para. 31). The requirement that the use of force is ‘reasonable’ has also been interpreted narrowly. In R. v. Dupperon (1984) [44] it was held that when considering the question of the reasonableness of the use of force by a parent against a child, the court shall take into account considerations such as the age of the child, the level of his understanding and the possible effect of using force against him, the degree of the force used, the circumstances of using it and also the nature of the damage caused to the child, if indeed any was caused.

The aforementioned section 43 has been interpreted and even applied in Canadian case-law, but the section has met with much criticism in the various courts there. The criticism points to the lack of clarity with regard to the definition of ‘reasonable’ force for the exemption from liability. The argument made is that parents who have used a little force have been put on trial and convicted whereas other parents who used excessive force have often been acquitted. Thus, for example, a complaint was made in one judgment that the condition as to the ‘reasonableness’ of the use of force has been interpreted and applied differently by different judges, and as a result inconsistency has arisen in applying the section in case-law. Criticism was also made that the criteria laid down in R. v. Dupperon [44] with regard to the ‘reasonableness’ of a parent using force against his child do not establish any clear boundaries between ‘reasonable’ use and ‘excessive’ use of force. Consequently, parents lack a clear guideline for distinguishing between proper and improper use of force. In that judgment the court pointed out that Canada is a signatory to the Convention on the Rights of the Child of 1989, and it said in this respect:

‘… the Convention stands in direct conflict with the state of the law. One wonders how section 43 can remain in the Criminal Code in the face of Canada’s international commitment. To the extent this paradox might inform any discussion of the constitutionality of the defence, it is not a question likely to be tested by a court, because the party who would have to raise the question would be the crown itself…

… The only personal view I will express is that I think this is an area that begs for legislative reform’ (R. v. James (1998) [45]).

Similar criticism of the aforesaid section 43 was expressed in another judgment:

‘I consequently hope that the law makers will see to establish clearer rules, so that parents will know with some degree of certainty when they are permitted to physically discipline their children; or alternatively, if Parliament determines that corporal punishment is no longer tolerable in our society, to then repeal Section 43 of the Code.

The current state of uncertainty is inadequate to protect children, while simultaneously potentially placing otherwise law abiding parents at risk of obtaining a criminal record.’ (R. v. J. O. W. (1996) [46]).

22. In contrast to the approach that gives the parent protection against criminal liability if he afflicts his child with ‘reasonable’ corporal punishment, there is an approach that denies the parent authority to inflict corporal punishment on his child. This approach places the emphasis on the child’s right of dignity, bodily integrity and mental heath. According to this approach, corporal punishment as an educational method does not merely fail to achieve its goals, but it causes the child physical and emotional harm, which may leave its mark on him even when he becomes an adult. In various articles published recently in the United States, the authors discuss the gap between legal attitudes, which often are tolerant of reasonable corporal punishment intended for educational purposes, and the attitudes of professionals in the fields of medicine, education and psychology, who see no merit in it (see: Orentlicher, supra [59], and Johnson, supra [61]).

The approach of the education profession that disapproves of corporal punishment as an educational tool has found expression over the years in the legislation of several countries, including Sweden, Finland, Denmark, Norway and Austria, which have forbidden or severely curtailed the authority of parents to inflict corporal punishment on their children (see: Barton & Douglas, supra [57], at p. 151; Orentlicher, supra [59], at p. 166).

23. Let us turn from the various approaches to the appellant’s defence case which relies on corporal punishment for educational purposes.

The appellant argues that she acted within the framework of her authority as a parent, and she inflicted on her children reasonable corporal punishments in order to educated them and discipline them to obey her, for this is what she understood was in their best interests. According to her counsel, this amounts to a justification in law for the appellant’s behaviour, and exempts her from criminal liability. Is this the case?

I should point out from the outset that a defence argument based on reasonable corporal punishment cannot succeed with respect to acts of abuse. I have already discussed how an act of abuse is tainted by immorality. Therefore, there can never be a justification in law or a justification based on an accepted social norm for an act of abuse. Consequently, I am of the opinion that if the acts of the appellant were acts of abuse, she cannot invoke the defence of justification by claiming she gave reasonable punishment for educational purposes.

The argument of counsel for the defence is wider. He argues that the use of force imputed to his client does not constitute a criminal offence at all. In my opinion, the discussion of the defence that relies on justification of corporal punishment for educational purposes is relevant to the offence of assault of which the appellant was found guilty; this discussion is therefore relevant according to those who think that the acts done by the appellant to her children do not amount to ‘acts of abuse’, but are a series of acts of assault.

24. The argument of the defence counsel about the existence of justification in law for the behaviour of the appellant relies on the case-law of this court in CrimA 7/53 Russey v. Attorney-General [19]. In that case Justice S. Z. Cheshin held that:

‘In the case before us, there is no serious dispute between counsel for the parties that a father and an educator may punish children under their authority, even by means of corporal punishment…

…

… Parents may inflict corporal punishment on their children in order to educated them properly and teach them discipline’ (at pp. 793-794).

In the same case the court cited the English case-law rule on this subject, as held in R v. Hopley [40] supra.

The ruling of the late Justice S. Z. Cheshin in this matter relies on the reference to English common law, which was required at that time by section 46 of the Palestine Order in Council, 1922. His remarks formed the basis for several judgments in the lower courts for years afterwards (see, for example, CrimC (TA) 570/91 State of Israel v. Asulin [27], per Justice A. Strasnov).

A similar approach that also derives from English law is adopted by the Torts Ordinance [New Version], which provides a defence for parents and teachers against tortious liability for the torts of assault and false imprisonment. Section 24(7) of the Torts Ordinance [New Version] stated that in an action based on the tort of assault, the defendant shall have a defence if:

‘The defendant is the parent or guardian or teacher of the plaintiff, or if his relationship to the plaintiff is similar to that of his parent or guardian or teacher, and he punished the plaintiff to an extent reasonably necessary to improve his behaviour.’

(A similar defence exists in section 27(6) of the Torts Ordinance [New Version], with regard to the tort of false imprisonment).

The aforesaid section 24(7) of the Torts Ordinance [New Version] has its origin in the English version of the Ordinance of 1944. This section reflects an outlook that is enshrined in the culture in which it arose. The ruling of Justice S. Z. Cheshin in Russey v. Attorney-General [19] was made in 1953. It is based on the English common-law rule, but the dependence on English law has since been repealed by the enactment of the Foundations of Justice Law, 5740-1980. With the passage of time the question has arisen whether the outlook embodied in section 24(7) of the Torts Ordinance [New Version] and Russey v. Attorney-General [19] reflects the outlook of Israeli criminal law today.

I should first point out that the defence in section 24(7) of the Torts Ordinance [New Version] does not exempt a parent from liability under criminal law. With regard to the relationship between the defence in the Torts Ordinance [New Version] and criminal liability, see S. Z. Feller, Fundamentals of Criminal Law, vol. 1 [48], at pp. 417-418, who thinks that the defences enshrined in the civil law do not add to the defences against criminal liability, and the expression ‘unlawful’ that appears as an element in some of the offences in the Penal Law does not refer to the defence, as distinct from a positive prohibition that exists in civil law. See also in this respect: State of Israel v. Sedeh Or [11], at p. 380-381, and also my opinion in CrimA 3779/94 Hamdani v. State of Israel [20], at pp. 417-419. As for me, I do not think that the defence in the Torts Ordinance [New Version] can affect the question of the liability of parents in criminal law with regard to the offences under consideration in this case. In any event, it may be assumed that even the interpretation given to the defence in the Torts Ordinance [New Version] about the ‘reasonable necessity’ of the parent punishing his child will follow the developments in modern educational approaches.

25. Any decision on the legitimate question about inflicting corporal punishment on children is influenced to a large extent by social and ethical outlooks. These outlooks are naturally subject to change as a result of social and cultural developments; what appeared right and proper in the past may not appear so today (cf. The Law of Torts — the General Doctrine of Torts [49], at p. 424, note 13. See also State of Israel v. Sedeh Or [11], at pp. 381-383).

The case of State of Israel v. Sedeh Or [11] reflects the changes that have taken place in Israeli society in a field that is closely related to the case under discussion. Whereas in the ruling in Russey v. Attorney-General [19] in 1953 it was held that teachers and educators are authorized to inflict ‘moderate and reasonable’ corporal punishments (ibid. [19], at p. 795) on their pupils, in the ruling in State of Israel v. Sedeh Or [11] which was given not long ago, Justice Dorner, with the agreement of Justices Or and Englard, held as follows (at p. 381):

‘Admittedly, in the first case that considered the question of corporal punishment in the educational establishment — CrimA 7/53 Russey v. Attorney-General, at pp. 794-795 — it was held that corporal punishment inflicted by teachers and headmasters is permitted. But since this judgment was given, forty-five years have passed, and the outlook reflected in it, allowing the use of violent measures for educational purposes, no longer conforms to our accepted social norms.’

            And at p. 383:

‘According to the educational approaches currently accepted, the use of force for educational purposes itself undermines the achievement of those purposes, in so far as we are concerned with education towards a tolerant society free of physical and verbal violence… For this purpose the severity of the corporal punishment inflicted on the child is irrelevant. As a rule, corporal punishment cannot be a legitimate measure to be applied by teachers, kindergarten teachers or other educators. An erroneous outlook on this issue endangers the welfare of children, and may undermine the basic values of our society — human dignity and bodily integrity.’

See also the remarks of President Barak in CrimA 4405/94 State of Israel v. Algeny [21], at p. 192:

‘Physical violence towards a pupil is forbidden. Beatings, hitting and ear-pulling have no place in the school. The classroom is a place of education and not an arena for violence. The body and mind of the pupil are not unprotected. His dignity as a human being is harmed if his teachers inflict physical violence on him.’

26. These remarks, which were made with regard to teachers, kindergarten teachers and educators are, in my opinion, also apt with regard to parents, notwithstanding the difference in the status and rights of parents vis-à-vis their children, as compared with those of educators as stated.

Indeed, the right of parents to raise and educate their children is essentially a natural right. It reflects the natural relationship between parents and children. Israeli law naturally recognizes these parental rights (see CA 2266/93 A (a minor) v. B [22], at p. 235).

The right of parents vis-à-vis their children is not only a natural right; it is enshrined in law. Section 15 of the Legal Capacity and Guardianship Law, 5722-1962, states as follows:

‘Roles of parents

15. The guardianship of parents includes the duty and the right to look after the needs of the child, including his education, studies, training for work and an occupation and his work, and also protecting, administering and developing his property; and it is accompanied by the permission to have custody of the child and determine his place of residence, and the authority to represent him.’

The Penal Law imposes criminal liability for failing to carry out parental duties within the framework of the parent’s liability to the child, as stated in section 323 of the Penal Law:

‘Duty of parent or person responsible for a minor

323. A parent or someone who has responsibility for a minor in his household who is younger than eighteen years is liable to provide him with what he requires for his sustenance, look after his health and prevent any abuse to him or injury to his person, and he shall be deemed to have caused the consequences that befell the life or health of the minor because he did not carry out his aforesaid liability.’

Parents are the persons who are initially and mainly responsible for their children, and the duties and rights granted to them in the law give them discretion as to how to raise and educate their children. The basic outlook, both from a legal viewpoint and from a psychological-educational viewpoint, is that in the normal case the discretion of the parents is what best signifies and formulates the proper decisions in raising their children. Notwithstanding, this discretion does not mean that the parents are completely autonomous in their decisions with regard to their children. The discretion of parents is limited, and it is also subject to the needs, welfare and rights of the child (see sections 14, 15, 17 and 22 of the Legal Capacity and Guardianship Law). The right of the parents towards their children inherently carries a duty — the general duty of parents to act in the best interests of the child and to make decisions that promote his welfare. In the words of Prof. P. Shifman, ‘It is the right of parents that they — and not others — perform the duty of raising the child’ (in P. Shifman, Family Law in Israel, vol. 2 [50], at p. 219).

Against this background, it is accepted that the rights of parents to raise and educated their children are not absolute rights. The relative nature of these is reflected in the duty of the parents to care for the child, his welfare and his rights (see CA 2266/93 A (a minor) v. B [22], at p. 237. See also CFH 7015/94 Attorney-General v. A [23], at p. 65, per Justice Dorner, and at p. 99, per Justice M. Cheshin).

The law imposes a duty on State authorities to intervene in the family circle and protect the child when needed, inter alia from his own parents. The basic approach of the law is that the child is not the property of his parents, and they may not do with him whatever they wish. When the parent does not carry out his duties properly or abuses the discretion or the parental authority in a way that endangers or harms the child, the State will intervene and protect the child. The power of the State to intervene in the family circle derives from its duty to protect those who are unable to protect themselves (see: section 27 of the Legal Capacity and Guardianship Law; section 3 of the Youth (Care and Supervision) Law, 5720-1960; the Protection of Dependents Law, 5726-1966; the Family Violence Prevention Law and the Adoption of Children Law, 5741-1981).

According to the aforesaid approach, the Penal Law imposes, as aforesaid, criminal liability on a parent for an assault on his child, for neglecting him or for abusing him. The defences available to parents in certain circumstances against their children’s claims in tort for exercising their parental authority (section 24(7) of the Torts Ordinance [New Version]), and section 22 of the Legal Guardian and Capacity Law) do not, in themselves, give an exemption from criminal liability where it has been proved that the elements of the offence imposing such liability on parents under the Penal Law are fulfilled.

27. Psychological and educational research shows that parental use of punishment that causes their children pain or humiliation is undesirable, and may even be harmful. The reasons for this are various: in many cases, ‘minor’ punishment sinks over time into more serious violence, since the parent feels he must increase the force of the punishment in order to communicate to his child the ‘educational message’ that he is interested in conveying; the research also shows that corporal punishment which is initially for disciplinary purposes sinks into systematic abuse, which endangers the welfare of the child. Punishment that causes pain or humiliation as an educational method may harm not only the body of the child but also his mind. Instead of encouraging the child to discipline himself, it is likely to cause him major psychological damage: the child will feel humiliated, his self-image will be harmed, and he may develop increased anxiety and anger; since the parent is a model for the child to emulate, the child is likely to adopt a violent form of behaviour, so that the cycle of violence will pursue him as he progresses throughout life, and from a victim of violence he may as an adult himself become a violent person (B. Bettelheim, A Good Enough Parent [51], at pp. 111-129; Orentlicher, supra [59], at pp. 155-160; see also the citations there of research in the field, inter alia the research of T. B. Brazelton, and the book of M. A. Straus & D. A. Donnelly, Beating the Devil Out of Them: Corporal Punishment in American Families [58]. See also the aforementioned article of Johnson [61], and the research which he cites).

The court cannot and may not turn a blind eye to the social developments and the lessons learned from educational and psychological research which have changed from one extreme to the other the attitude towards education that uses corporal methods of punishment.

28. Painful and humiliating punishment as an educational method not only fails to achieve its purposes and causes the child physical and emotional damage, but it also violates the basic right of children in our society to dignity and the integrity of body and mind.

The court in examining the normative aspect of a parent’s behaviour to his child will take into account the current legal attitude to the status and rights of the child. This is the case in many countries around the world, and it is also the case in Israel after the enactment of the Basic Law: Human Dignity and Liberty, and in the era after Israel became a signatory to the Convention on the Rights of the Child.

Today it can be said that in a society such as ours the child is an autonomous person, with interests and independent rights of his own; society has the duty to protect him and his rights. In the words of Justice M. Cheshin:

‘A minor is a person, a human being, a man — even if he is a man of small dimensions. A man, even a small man, is entitled to all of the rights of a large man’ (CA 6106/92 A v. Attorney-General [24], at p. 836).

With regard to the rights of the child and the nature of these, see the remarks of President Shamgar in CA 2266/93 A (a minor) v. B [22]:

‘… The concept “rights of the child” tells us that the child has rights. The concept “rights of the child” in effect extends the canopy of constitutional protection over the child. It is expressed in a recognition of his rights and in that all of the rights are also a surety that guarantees his welfare’ (at pp. 253-254).

(See also the remarks of Justice Strasberg-Cohen in that judgment, at p. 267. I will not comment with regard to the difference of opinion between my colleagues in the matter considered in that case, which does not directly reflect upon the case before us. See also CFH 7015/94 Attorney-General v. A [23], at p. 100, per Justice M. Cheshin).

The Basic Law: Human Dignity and Liberty, which elevated the status of human dignity to a super-legislative constitutional right, is also an important source for the case before us. It gives binding force to the dignity and protection that society must provide for its members who are weak and helpless, including children who fall victim to the violence of their parents. On the rights of the child under the Basic Law, President Barak said:

‘At the centre of the Basic Law: Human Dignity and Liberty stands “man” — “as a man”. Therefore the rights are extended to man the adult and man the child.’ (A. Barak, Interpretation in Law, vol. 3, Constitutional Interpretation [52], at p. 435).

With regard to the influence of the Basic Law: Human Dignity and Liberty on the proper legal policy on the use of violence by parents against their children, the remarks of Justice H. H. Cohn in his article ‘The Values of a Jewish and Democratic State — Studies in the Basic Law: Human Dignity and Freedom’ [53], at pp. 30-31, are most apt:

‘But I think that in the wake of the Basic Law the legislator would do well to take a fresh look at some of the dispensations currently to be found in the law, which are perhaps too broad. This is specially the case with regard to the right of parents and teachers to harm the body of their children or pupils “to an extent reasonably necessary to improve his (the victim’s) behaviour”…

… The right to protection of body which the Basic Law gives to every adult man must, a fortiori, be given to the child; not merely because the former is also capable of protecting his body on his own whereas the latter is unable to do so, but because the welfare and best interests of children is one of the highest values of the State — both as a Jewish State and as a democratic State.’

 The approach that recognizes the rights of the child to protection of the integrity of his body and mind received its most obvious expression in the Convention on the Rights of the Child that was ratified in Israel on 4 August 1991, and came into force with regard to Israel on 2 November 1991. The Convention expressly prohibits the use of physical or mental violence towards children, and obliges the States to take measures to prevent violence to children. Article 19(1) of the Convention provides as follows:

‘States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.’

29. In accordance with all the aforesaid, it should be held that corporal punishment of children, or their humiliation and degradation by their parents as an educational method is totally improper, and it is a relic of a socio-educational outlook that is obsolete. The child is not the property of his parent; it is forbidden that he should serve as a punching bag which the parent may hit at will, even when the parent believes in good faith that he is exercising his duty and right to educate his child. The child is dependent upon his parent, needs his love, protection and gentle caress. Inflicting punishment that causes pain and humiliation does not contribute to the character of the child and his education, but violates his rights as a human being. It harms his body, his feelings, his dignity and his proper development. It distances us from our desire for a society that is free of violence. Consequently, we ought to know that the use by parents of corporal punishments or measures that humiliate and degrade the child as an educational method is now forbidden in our society.

Support for this view, with regard to the criminal liability of a parent who harms his child for ‘educational’ purposes, can be found in the fact that section 49(5) of the draft Penal Law (Preliminary Part and General Part), 5752-1992, was not passed. According to the draft of the aforesaid section 49, entitled ‘Justification’, a person would not bear criminal liability for an act that he did, if:

‘(5) He did it for the purpose of educating a minor under his authority, provided that he did not depart from what is reasonable.’

Between the first reading and the second and third readings of the draft law in the Knesset, the aforesaid section 49(5) was removed, and it did not form part of the amendment of the Penal Law that was passed. During the session in which the draft law had its second and third readings in the plenum, Knesset Member Yael Dayan explained her approach to this issue as follows:

‘In our society, in which there is abuse of children, in which there is violence against the weak, in which there is violence against the helpless, in which there is violence by persons with authority, even in the family, and particularly in the family, sometimes we cannot rely on what is “reasonable”. We do not know what is “reasonable”…

… One person regards education as three slaps on the face, another regards it as burns with a iron or an instrument, and another regards it as imprisonment. It is totally forbidden to introduce here any intermediate norms, since this must be unambiguous — no violence shall be inflicted and no means of enforcement shall be used against a child or against someone who is under the authority or power or guardianship of someone else’ (Knesset Proceedings 139 (1994), 9822, at pp. 9847-9848).

30. It may be argued that in this determination we are imposing on the public a standard that the public cannot reach, for among us there are many parents who exercise force that is not excessive towards their children (such as a light hit on the bottom or on the palm of the hand), in order to educate them and discipline them. Shall we say that these parents are criminals? (See the remarks of Knesset Member Dan Meridor in Knesset Proceedings 139, supra, at pp. 9842-9843, and also Feller, supra, vol. 2 [48], at pp. 497-498).

The proper answer is that in the legal, social and educational situation in which we find ourselves, we may not compromise by risking the welfare and safety of children. It must also be taken into account that we are living in a society in which violence is spreading like a disease; a dispensation for ‘minor’ violence is likely to sink into violence on a major scale. The welfare of a child’s body and mind should not be endangered by any corporal punishment; the proper criterion must be clear and unambiguous, and the message is that there is no permitted corporal punishment.

Notwithstanding, it should not be forgotten that the parent has available the defences prescribed in the Penal Law, which provide for restrictions on criminal liability in certain circumstances, and which include all those cases of using force in order to protect the body of the child or of others. The restrictions that are recognized as providing exemptions from criminal liability are, in my opinion, sufficient in order to express the proper distinction between the use of force by parents for the purposes of ‘educational punishment’ which is improper and also forbidden, and the reasonable use of force which is intended to prevent harm to the child or to others, or to allow minor physical contact, even if it is forceful, with the child’s body to maintain order.

In addition, the criminal law has sufficient ‘filters’ to ensure that insignificant cases do not fall within its province. Thus, for example, the prosecution has discretion not to put someone on trial if there is no public interest (section 56 of the Criminal Procedure Law [Consolidated Version], 5742-1982); the criminal law also contains the defence of ‘de minimis’ (section 34Q of the Penal Law), which can also prevent criminal liability being imposed for the insignificant use of force by a parent against a child.

Moreover, in general an act that a person of normal temperament would not complain about cannot form the basis for criminal liability. Thus, for example, not every everyday contact of one person with another leads to the imposition of criminal liability on the perpetrator, even if, prima facie, it complies with the formal elements of the offence of assault. Obviously parent-child relationships involve constant physical contact, and therefore normal physical contact between a parent and his child will not constitute a basis for a criminal offence.

In my opinion, it is possible to rely on the filters that I have mentioned, by means whereof criminal liability will not be imposed on a parent in insignificant cases that do not justify enforcement within the framework of the criminal law.

From the general to the specific

31. In the case before us, the appellant’s hitting of her children was not an isolated hitting of minor significance that does not exceed the limits of de minimis, but a persistent pattern of behaviour, which created an atmosphere of tension and systematic violence in the house. The children were beaten with painful blows for insignificant matters, until the violence became an integral part of their lives. The marks of the appellant’s deeds were made on the children’s bodies and their young minds. I believe the appellant when she says that she loves here children, but this does not change the fact that the acts of violence that she inflicted on her children are improper and forbidden. Her claim that this was done for their benefit so that they should improve their behaviour conflicts with the basic values of our society with regard to human dignity and the welfare of the child’s body and mind. Even the appellant’s claim that the behaviour of her children is wild, and she raises them alone and is compelled to deal with the hardships of life on her own is insufficient to justify systematic violence against the children. For these reasons the trial court was right to hold that there was no justification in law for the acts of the appellant that might exempt her from criminal liability.

Wherefore, and for all the reasons given above, the appeal against the conviction must be denied.

32. The appellant appealed, in the alternative, against the sentence that was given to her — a suspended sentence of twelve months’ imprisonment, which she will serve if within three years from the date of the sentence she commits any offence of violence that constitutes a felony under the Penal Law, or the offence of which she was convicted in this case.

The judge in the trial court ordered, in the sentence, that the appellant should be placed on probation for eighteen months, and the probation officer should report to the court about the progress of the treatment once every three months.

At the hearing before us, the probation officer told us that the probation service applied to the District Court to cancel the probation, since at that stage the appellant was not cooperating, and the purpose of the probation was to improve her functioning as a parent.

From the declarations of the appellant during the hearing before us, a doubt arose as to whether she is able to comply with an undertaking to the probation service.

In such circumstances, it would appear that we should reconsider what is the effective punishment that can be given to the appellant. A long time has passed since the proceedings began, and ideally an updated picture of the appellant’s position should be obtained for the purpose of deciding sentence.

Therefore, before adopting any attitude with regard to the appeal against the sentence imposed on the appellant, we would like to receive, within forty-five days, an updated report of the probation service concerning the possibilities of supervising the appellant.

Wherefore, we deny the appeal with regard to the appellant’s conviction. Our judgment with regard to the sentencing will be given after we receive an updated report as stated.

 

 

President A. Barak

I agree.

 

 

Justice I. Englard

1.    I agree with my colleague Justice Beinisch that the appellant was rightly convicted of assault on her children, an offence under s. 379 of the Penal Law. In the circumstances of this case, the violent methods of punishment inflicted by the mother on the children were not reasonable and were also not insignificant.

2.    By contrast, I find the appellant’s conviction on the offence of abuse, an offence under section 368C of the Penal Law, problematic. My colleague Justice Beinisch also discussed at length the problems that the term ‘abuse’ raises in the criminal context. She pointed out that the linguistic meaning, found in the dictionary, is ‘harsh and cruel behaviour; inhuman treatment’, but this does not necessarily reflect the legal meaning, and therefore the dictionary definition is not in itself sufficient. In her opinion, the legal meaning of the term should be derived from the purpose of the statute ‘and by exercising judicial discretion’.

3.    The fundamental concrete problem which my colleague discussed is what is the difference between the offence of abuse and the offence of assault, and where is the dividing line between them. To be more precise, the question is what are the additional elements, in a case of physical abuse, as distinct from emotional or sexual abuse, that are required in order to change an offence of assault on a minor or a helpless person into an offence of abuse under section 368B or 382(b) of the Penal Law.

4.    After my colleague Justice Beinisch said that the answer to the said question is not simple, she went into great detail to characterize the special aspect of the offence of abuse. Within this framework, she began by saying that ‘abuse, including physical abuse, refers to cases of a nature and type that our conscience and feelings cannot regard merely as acts of assault’ (paragraph 13 of her opinion). She continued by stating that:

‘Because abuse is behaviour that involves cruelty, intimidation or degradation — the nature of which we shall consider below — it acquires a stigma of immorality which does not necessarily accompany every criminal act that involves the use of force.’

Nonetheless, my colleague said that she did not presume to give a comprehensive definition and that she would confine herself to presenting the elements of the offence and the traits that characterize cases of physical abuse.

5.    Among the characteristics is the use, directly or indirectly, of force or a physical measure against the body of the victim, which is done in a way and to a degree that is likely to cause physical or emotional damage or suffering, or both. With regard to this she said:

‘Although causing actual damage is not one of the elements of the offence of abuse, it is obvious that proof of physical or emotional damage to a victim may serve as a probative tool to prove the existence of potential to cause suffering and damage, and the severity or the exceptional nature of the act that allegedly constitutes abuse.’

In this regard she said:

‘… the decisive attitude for the purpose of determining the existence of behaviour that amounts to an offence of abuse is that of the bystander, i.e., the objective viewpoint that examines the behaviour of the abuser to the victim.’

6.    At this point my colleague went on to list the characteristics, even though these do not, in her opinion, amount to a closed or exhaustive list, which are: first, a continuing series of acts or omissions, in which it is possible that each act (or omission) in the chain of abuse is not of a cruel or degrading nature. Nonetheless, the accumulation of the acts or omissions and their continuation over time are what lead to the degree of severity, cruelty, degradation and humiliation or terror that constitute abuse. Second, these characteristics of cruelty, terror and intimidation, degradation and humiliation can exist even with regard to an isolated instance. Third, acts that are intended to impose authority, fear, punishment or extortion. Fourth, the fact that the abuser is in a position of power or authority with regard to his victim, in a way such that the victim is in a position of inferiority and helplessness without the ability to protect himself, i.e., a characteristic of unequal strength.

7.    With regard to the emotional element, my colleague said that since the offence under section 368C is an offence of behaviour, the mens rea required, within the meaning of section 20(a) of the Penal Law, is awareness as to the nature of the behaviour and the existence of the relevant circumstances that are prescribed for the relevant offence.

8.    After describing the characteristics of the actus reus of the offence of abuse, and after pointing out the mens rea of this offence, my colleague went on to the circumstances of the case before us. She said the following:

‘As stated above, the children were hit by the appellant in the years 1994-5… on various parts of their bodies (head, neck, hands, bottom), sometimes with a sandal and sometime by throwing shoes. We are not talking of an isolated act, but of a pattern of violent and continuing behaviour. The children were hit by the appellant frequently and systematically, until the children, who were under her control, learned their “lesson” that there was a connection between their behaviour and violence being directed against them.’

And she continues:

‘It is possible that each individual hit was not, in itself, cruel. Nonetheless, the methodical nature of the hitting, its continuation over a period of time and the frequency of the violence experienced by the children from their mother, being hit with an object such as a sandal and also the atmosphere of terror and harsh authority that prevailed in the home, where trivial matters were followed by a painful physical blow and outbursts of rage — all of these indicate that we are dealing with cruel behaviour of the mother to her children while humiliating them, regarding them as property that she can do with what she wishes.’

She also said:

‘… the violence directed by the appellant against the children had the potential to damage them; what is more, the kindergarten teachers noticed bruises on the bodies of H and N, and even testified about the recoiling and the fear that overcame the children when they approached one of them; the recoiling indicated their emotional state as battered children.’

9.    Notwithstanding, my colleague’s opinion notes that ‘… it is indeed possible that the appellant did not intend to cause harm to her children…’. But, in her opinion, the absence of an intent to cause harm on the part of the appellant is irrelevant for the purpose of committing the offence under section 368C of the Penal Law. Elsewhere my colleague held that she believed that the appellant felt love towards here children, ‘…but this does not change the fact that the acts of violence that she inflicted on her children are improper and forbidden…’.

            10. Before I analyze in detail the approach of my colleague Justice Beinisch, I would like make some preliminary remarks on matters of principle. In my opinion, the principle of legality in criminal law, as stated in section 1 of the Penal Law, is of decisive importance. Another aspect of this principle is the rule of interpretation, prescribed in section 34U of the Penal Law, that ‘if a law is capable of several reasonable interpretations in accordance with its purpose, the matter shall be decided in accordance with the most lenient interpretation from the viewpoint of a person who is supposed to bear criminal liability under that law’. According to the principle of legality, it is desirable that the actus reus of offences should be defined as clearly as possible, so that someone subject to criminal sanction may know in advance the bounds of what is forbidden and permitted. Therefore, in so far as possible, vague definitions, whose meaning is unclear, should be avoided.

            11. It should be noted that in United States law the courts tend to disqualify provisions in criminal statutes because of their vagueness, for constitutional reasons of due process. With regard to the welfare of children see, for example, State v. Gallegos (1963) [38], in which the Supreme Court of the State of Wyoming held, after setting out the principles that require specificity in criminal statutes, the following:

‘Section… a part of the Child Protection Act, declares it is a policy of the act to protect children from all types of abuse which jeopardize their health, welfare or morals. Without doubt, statutes directed to that end are essential for the safeguarding of youth and for the preservation of health and moral standards. However, criminal statutes cannot be couched in terms so vague and indefinite as to deny due process to an accused’ (at p. 968).

12.  The question of the legality of a criminal provision, which suffers from vagueness, has not arisen before us, and therefore I will not adopt any position thereon for Israeli law. I will concentrate on the interpretation of a provision of this kind. It is my opinion that one should adopt a method of interpretation which will cure the defect of vagueness in so far as it can. This principle of interpretation can be seen, in my opinion, both in the principle of legality prescribed in section 1 of the Penal Law and also in the principle of lenient interpretation prescribed in section 34U of the Penal Law. It should be noted that even in the United States there is a principle of interpretation of this kind, under the title ‘Rule of Lenity’. See in this regard In re S.K. (1989) [39]:

‘The statute under which the alleged [child] abuser is charged must sufficiently apprise him or her of what conduct is prohibited… If that statute is ambiguous, it is strictly construed, for the rule of lenity applies’ (at p. 1388).

13. What is the essence of the term ‘abuse’? It originates in the Bible, first in the book of Exodus 10 2 [62]: ‘… that I acted harshly[*] towards the Egyptians’ (see Rabbi Avraham Ibn Ezra, Commentary on Exodus 10 2 [63]) ‘and the Torah spoke in the language of men to say “I acted harshly” like a person who changes his nature to be avenged on another’); see also I Samuel 6 6 [64]: ‘… when he acted harshly towards them, did they not send them forth and they went’; Numbers 22 29 [65]: ‘And Balaam said to the ass: “Because you have treated me badly, had I a sword in my hand, I would now have killed you”;’ Judges 19 25 [66]: ‘And the people did not want to listen to him and the man took hold of his concubine and brought her out to them and they had intercourse with her and they abused her all night until the morning, and they sent her when dawn came’; I Samuel 31 4 [64]: ‘And Saul said to his armour-bearer: “Draw your sword and pierce me, lest these uncircumcised people come and pierce me and torture me…’; see also 1 Chronicles 10 4 [67]; Jeremiah 38 19 [68]: ‘And king Zedekiah said to Jeremiah: “I am afraid of the Jews who have fallen to the Chaldeans lest they give me up to them and they torture me’.

14. According to the Biblical commentators, ‘abuse’ is an act of ridicule, dishonour, humiliation, revenge, cruelty, trickery and degradation. According to Ben-Yehuda’s dictionary, someone who abuses another ‘does bad, harsh things to him with hatred, contempt’. In this spirit, Even-Shoshan’s dictionary, which was quoted by my colleague Justice Beinisch, says that abuse is ‘harsh and cruel behaviour; inhuman treatment’.

15. However, in my colleague’s opinion, as stated, the linguistic meaning does not necessarily reflect the legal meaning. Therefore, she is not prepared to satisfy herself merely with the linguistic meaning in order to determine what is an act of abuse, and the concept should be construed, in her opinion, in accordance with the purpose of the statute while exercising judicial discretion. Her premise is that one should not give a general definition, but it is sufficient to show the elements of the offence and the characteristics that characterize the cases of physical abuse. In other words, it is possible to give meaning to the offence of abuse by progressing from case to case. According to her approach, the tools that will allow a distinction to be made between cases of mere assault and cases of abuse are the conscience and feelings of the person examining the acts. This premise is unacceptable to me. As stated, the principle of legality requires that the offence is defined ab initio with as general a definition as possible, and the idea that the conscience and the feelings will define, ex post facto, its criminal character is inconsistent with the rule that ‘We may not punish unless we give warning’ (Babylonian Talmud, Tractate Sanhedrin 56b [69]).

16. Notwithstanding, as stated above, my colleague points to certain characteristic indicators of behaviour that constitutes abuse, albeit while emphasizing that they do not constitute a comprehensive or closed list. The first of the characteristics of physical abuse is the existence of a continuing series of acts or omissions. It is possible that each, in itself, does not have a cruel or degrading nature. ‘Notwithstanding, the accumulation of acts (or omissions) and their continuation over a period of time are what lead to a level of severity and cruelty, degradation and humiliation or intimidation that amount to abuse’. Assuming that the accumulation of acts and their continuation can indeed make the behaviour cruel and degrading, the question arises what is the degree of accumulation and continuation that turns the behaviour into abuse. In other words, what is the frequency required for this? This question indicates, again, a factor of uncertainty, which is undesirable within the framework of criminal law.

17. How has case-law dealt with the vagueness of the concept of abuse? The first use of the term ‘abuse’ was in the offence of exercising authority towards subordinates, an offence under regulation 87 of the Emergency (Court Martial Law 5708) Regulations, 5708-1948. This concerned the misuse of authority or rank of a soldier towards his subordinates, in which one of the aggravating circumstances is abuse of authority. In CMA 209/55 Chief Military Prosecutor v. Corp. Nehmad [28], the Appeals Court Martial referred to CMA 224/54 [29], in which it was said:

‘For the purposes of determining whether the offence was accompanied by abuse or not, it is irrelevant whether the act of misuse of authority which was expressed in hitting a subordinate took the form of one single blow or several blows to the body of the subordinate. The proper test to be considered on this point is not the quantitative criterion of the hits or blows that the subordinate received but the circumstances, the manner and form of those blows.’

In CMA 4/52 Chief Military Prosecutor v. Capt. Timor [30], at p. 187, the Appeals Court Martial writes:

‘We do not accept the argument of the prosecution that the act of the respondent was accompanied by abuse. It was not proved that the respondent acted to settle a personal score or in a manner that shows that he wished to humiliate Private L. before his comrades or to hurt him especially.’

The Emergency (Court Martial Law 5708) Regulations were replaced by the Court Martial Law, 5715-1955. The law contains an offence of abuse in section 65. This provision includes several sub-sections, one of which is the hitting of a soldier of lower rank. In CMA 152/78 Aharon v. Chief Military Prosecutor [31], the court held, at p. 203:

‘Case-law has held that the third sub-section [of section 65(a) ‘or otherwise abused them’] should not be restricted merely to a physical blow, and an offence of abuse is possible (under this sub-section) by injuring the soldier’s dignity, humiliating him or degrading him. It has also been held that the test whether an act constitutes abuse or not is objective. This means that there is no need to prove that the officer intended to injure the dignity of his subordinate. It is sufficient that from an objective viewpoint his behaviour to the soldier may be interpreted in such a way’ (square parentheses supplied).

The court goes on to say:

‘In other judgments… it was held that abuse can be expressed in acts that are sufficient to “humiliate” the soldier or “were intended to hurt him”.’

18. Study of military case-law shows that whereas the judges were of the opinion that an act of abuse, which is not defined as hitting a soldier of lower rank or a person in custody, must involve, from an objective viewpoint, an element of degradation, they differed with regard to the mens rea. Some judges held that it is necessary that there also exists an element of intent to humiliate. But the majority of judges thought that a degrading manner from an objective viewpoint is sufficient, and an element of intent is unnecessary. See: CMA 190/58 Chief Military Prosecutor v. Capt. Gad [32], at p. 63; CMA 156/70 Lieut. Meir v. Chief Military Prosecutor [33], at p. 291; Aharon v. Chief Military Prosecutor [31] supra, at p. 203; by contrast, see: CMA 143/72 Chief Military Prosecutor v. Capt. Yosef [34], at p. 198; CMA 85/62 Sgt. Brown v. Chief Military Prosecutor [35], at p. 185.

19. I will now turn to the case-law of the civil courts on the question of abuse. I will first consider the elements of the actus reus of the offence of abuse under section 368C of the Penal Law, as they emerge from case-law.

The following was written in CrimA 295/94 A v. State of Israel [17]:

‘There is no dispute that the appellant cut off the hair from the head of his youngest daughter, a child of 12 years of age, while using force on her during the cutting, and lacerating the tissue of her scalp…

…

This phenomenon may adopt the form of severe violence, it may be expressed in the confinement of the child and depriving him of his freedom and it may be shown by a wretched, humiliating and despicable act such as the act of the appellant.’

Justice Bach described acts of abuse in CrimA 3958/94 A v. State of Israel [25] as follows:

‘We are dealing, inter alia, with the severe beating of children, sometimes with the use of devices such as a stick or a belt, biting them, pinching them, and banging their heads against a wall, and also imposing on them unreasonable punishments. The most severe act was when the appellant gave one of her children a severe injury in that she heated up a knife and while it was still hot she used it to cause burns on the backs of the child’s hands.

In addition, there was also various acts of emotional abuse…’.

In CrimA 7861/96 A v. State of Israel [14] the court said that:

‘… The appellant had the habit of putting his children in the living-room together, humiliating and insulting the mother in their presence, and threatening that if the mother would complain, he would murder her. The appellant used to lock the children in their room for a whole day. Once he went into the room of his daughter and spat on her. Another time he cut off the sidelocks of his son against his son’s wishes. He also slapped his son and ridiculed him in the presence of other children and kicked him on his legs. He hit another of his sons on the face with a videotape and threw a shoe at him.’

My colleague Justice Kedmi held in CrimA 3754/97 A v. State of Israel [26] that:

‘… The blows which the father — mercilessly — inflicted on his daughters did not cause any of them broken bones or injuries to internal organs. However, the description of the manner of the blows and the physical marks that these left behind are sufficient to provide an expression of their force and severity; and the emotional scars — including the fears, anxieties and nightmares — that these left on the souls of the battered girls are of course incalculable.’

In CrimA 3783/98 A v. State of Israel [12] the court described the acts which led to the father being convicted of abuse:

‘… From time to time he hit one of the girls with a military belt which had iron buckles, or with a broom, or a clothes-hanger, and also with punches, kicks, etc.. From time to time they suffered injuries as a result of the attacks… he made the living-room in the apartment available to himself only…he deprived them of basic living requirements, including food and the use of electricity. He frequently cursed his wife and his daughters and called them humiliating names.’

20. From the case-law it can be seen that in cases where the courts convicted people of an offence of physical abuse there was an element of severe physical violence and cruelty towards the victim which also involved his humiliation. In my opinion, the actus reus of physical abuse should be defined along these lines, i.e., acts of severe violence and cruelty which humiliate and degrade the victim. This definition is consistent with the dictionary meaning of the term abuse, and I do not see any reason to depart from this meaning.

21. The requirement that in physical abuse there must be acts of particular severity, expressed in cruel and degrading violence, is also consistent with the outlook of the legislator as can be seen from the levels of penalties for the different offences relating to minors and helpless persons. Thus, in the provisions of section 368B of the Penal Law, someone who assaults a minor or a helpless person and causes him a real injury is liable to five years’ imprisonment. If the assailant was responsible for the child or the helpless person, he is liable to seven years’ imprisonment. If they suffered severe injury and the assailant was responsible for them, he is liable to nine years’ imprisonment. But we see that a person who commits an act of physical (or emotional or sexual) abuse on a minor or helpless person for whom he is responsible, is also liable to nine years’ imprisonment. It follows that the legislator compared the abuser precisely to an assailant who causes a severe injury. Therefore, the context requires us to narrow the offence of physical abuse to acts that have particular severity, namely violence of a cruel and humiliating nature, which may cause the victim particular suffering.

22. This conclusion brings me to the question whether the offence of abuse is really merely an offence of behaviour — which is the opinion of my colleague Justice Beinisch and the opinion of other judges in this court — or whether it may be an offence of consequence. The answer to this question has clear implications for the mens rea required for this offence. The answer to this question is not at all simple. Abuse is defined by the provision of section 368C of the Penal Law as an act of physical, emotional or sexual abuse of a minor or of a helpless person. This wording implies to some extent the existence of a consequence of suffering for the victim of the abuse. Moreover, since physical abuse is an offence which is in essence and in concept closely related to the offence of causing an injury to minors and helpless persons — it is only logical that it too should be an offence of consequence. Likewise, in reality it is hard to conceive of a person being convicted of an act of physical abuse, without the victim being caused real suffering, but it should not be forgotten that in principle, criminal liability usually arises if a person behaves illegally, and this is accompanied by criminal intent of awareness of the nature of the act, and not necessarily of the consequences of his actions. Therefore, if there is no express provision in the statute that connects the liability with the causing of consequences, the assumption is that the offence is one of behaviour. It appears, therefore, that notwithstanding the fact that the offence of abuse is very closely associated with the causing of the consequence of suffering to the minor or the helpless person, in essence it remains an offence of behaviour. Therefore, the offence is not conditional upon proof of a harmful consequence to the victim of the abuse.

23. Assuming that we are concerned with an offence of behaviour, we still need to determine the mens rea, i.e., the criminal intent required for convicting someone of this offence. Under the provision of section 20(a), the mens rea of an offence of behaviour is awareness of the nature of the act and the existence of the circumstances that are included among the details of the offence. In view of my conclusion that the nature of the actus reus of the offence of physical abuse is expressed in an act of severe and cruel violence which involves humiliation, a person who commits such an act must be aware of these circumstances.

24. I will now turn to apply these principles to the special circumstances of this case. I have studied the facts again and again and I have not been convinced that we are dealing with a case of abuse, which must be based, in my opinion, on a factual element of severe and cruel violence. I will mention once again that according to the structure of the offences that are intended to protect children and helpless persons, the offence of abuse is similar in essence — according to the severity of the penalty — to causing a severe injury. We see that in the circumstances of this case, the court decided to acquit the appellant of the offence of assault of a minor causing real injury under section 368B(a) of the Penal Law. No appeal was submitted with regard to this acquittal. Admittedly, the acquittal on this offence of assault does not mean that there is no possibility of convicting the appellant of abuse for any cruel acts that could have caused the child exceptional suffering, but not a real injury. However, as stated, I have not found that the behaviour of the appellant amounted to abuse. This conclusion with regard to the actus reus makes it unnecessary for me to consider the existence of mens rea.
            25. In my opinion, it is not a proper legal policy to attribute acts of abuse to an accused unless the acts involve characteristics of unusual severity. Doing this as a matter of course may lead to the offence becoming morally insignificant. This will happen especially if the sentence given to the offender is relatively light, as happened in this case. In my opinion, in this case there was no need to add to the offence of assault under section 379 in the aggravated circumstances of section 382(b) of the Penal Law, for which the maximum sentence is four years’ imprisonment, an offence of abuse for which the maximum sentence is nine years’ imprisonment. The sentence — in which the appellant was placed on probation for eighteen months and given twelve months’ suspended imprisonment — could have been justified completely and without any objective difficulty on the basis of offences of assault that the appellant committed against her children over a very long period. In my opinion, by defining these acts — which should not be underestimated — not only as acts of assault in aggravated circumstances, but also as acts of abuse, no additional social goal is achieved that is not achieved by convicting the appellant of assault.

Therefore, if my opinion were to be accepted, I would acquit the appellant of the offence of abuse.

 

 

18 Shevat 5760

25 January 2000.

Appeal against conviction on the offence of assault denied. Appeal against conviction on the offence of child abuse was denied by majority opinion, Justice I. Englard dissenting.

 

 

[*]    Editor’s note: the Hebrew word for the offence of abuse is התעללות; it is a form of this word used in Exodus 10 2 that I have translated here ‘act harshly’. However, this word cannot be translated identically in all contexts. For this reason, in the Biblical sources quoted here, the translation of this word is italicized in each quote.

HCJ 6204/06

Dr Yossi Beilin

v.

1.            Prime Minister of Israel

2.            Government of Israel

HCJ 6235/06

Guy Yoren

and 25 others

v.

1.            Ehud Olmert, Prime Minister

2.            Government of Israel

3.            Minister of Finance

HCJ 6274/06

Movement for Quality Government in Israel

v.

1.            Government of Israel

2.            Minister of Defence

3.            Minister of Finance

4.            Finance Committee of the Knesset

5.            Foreign Affairs and Defence Committee of the Knesset

 

 

The Supreme Court sitting as the High Court of Justice

[1 August 2006]

Before Justices D. Beinisch, A. Procaccia, E. Arbel

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: On 12 July 2006, the Hezbollah organization carried out an offensive operation inside the territory of Israel, as a result of which eight Israel Defence Forces (IDF) soldiers were killed and two other soldiers were kidnapped and taken over the border into Lebanon. In response, the IDF began military operations in Lebanon, and the State of Israel was attacked at the same time with thousands of missiles and Katyusha rockets, which caused death and injuries to dozens of Israeli citizens in the north of Israel, as well as substantial damage to property.

The petitioners argued that the government was constitutionally required to make a declaration of war and that it should have taken action to compensate the residents in the north of Israel for the economic losses that they suffered from the Hezbollah attacks.

 

Held: What constitutes ‘starting a war’ is a complex question. The definition of ‘war’ cannot be separated from the foreign affairs of the state. A government decision that can be interpreted as a declaration of war is likely to have extreme consequences in the sphere of international relations. In any case, the government complied with all the constitutional formalities that would be required by a declaration of war.

The Knesset and the government have enacted legislation to address the compensation of the residents of the north of Israel. There has therefore been a change in the legal position since the petitions were filed. In so far as these arrangements do not satisfy the petitioners, the doors of the court will be open to them.

 

Petition denied.

 

Legislation cited:

Basic Law: the Army, s. 2(a).

Basic Law: the Government, ss. 4, 40, 40(a), 40(b), 40(c).

Civil Defence Law, 5711-1951, ss. 9C(b)(1), 9C(b)(3).

Customs Ordinance [New Version], s. 211(c).

Declaration of Death Law, 5738-1978, s. 1.

Penal Law, 5737-1977, s. 99.

Property Tax and Compensation Fund Law, 5721-1961, ss. 35-38B.

Property Tax and Compensation Fund (War Damage and Indirect Damage) Regulations, 5733-1973.

Property Tax and Compensation Fund (Payment of Compensation) (War Damage and Indirect Damage) Regulations (Temporary Provision), 5766-2006.

Protection of Workers in a State of Emergency Law, 5766-2006.

 

Israeli Supreme Court cases cited:

[1]          CrimA 6411/98 Manbar v. State of Israel [2001] IsrSC 55(2) 150.

[2]          HCJ 5128/94 Federman v. Minister of Police [1994] IsrSC 48(5) 647.

[3]          HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) 455.

[4]          HCJ 3975/95 Kaniel v. Government of Israel [1999] IsrSC 53(5) 459.

[5]          HCJ 963/04 Laufer v. State of Israel [2004] IsrSC 58(3) 326.

 

For the petitioner in HCJ 6204/06 — H. Ashlagi, H. Peretz.

For the petitioners in HCJ 6235/06 — Y. Goldberg.

For the petitioner in HCJ 6274/06 — T. Medadluzon.

For the respondents in HCJ 6204/06 and HCJ 6235/06 and respondents 1-3 in HCJ 6274/06 — E. Ettinger.

For respondents 4-5 in HCJ 6274/06 — R. Scherman-Lamdan.

 

 

JUDGMENT

 

 

Justice D. Beinisch

The three petitions before us were filed against the background of the state of hostilities in which Israel has found itself since 12 July 2006, when the hostilities began between Israel and the Hezbollah organization, which is operating against the IDF and against the citizens of the State of Israel from the territory of Lebanon.

The background to the petitions

1.            On the morning of 12 July 2006, the Hezbollah organization carried out an offensive operation inside the territory of Israel, as a result of which eight IDF soldiers were killed and two other soldiers were kidnapped and taken over the border. Following this attack, the government adopted a decision on the same day, in which, inter alia, it decided the following:

‘Israel must respond with the severity required by this offensive operation, and it will indeed do so. Israel will respond in a forceful and determined manner against the perpetrators of the operation and the parties responsible for it, and it will also act to frustrate efforts and activity directed against Israel’ (government decision no. 258).

Within the framework of that decision, the government approved the recommendations presented to it by the security establishment, and it also authorized the prime minister, the Minister of Defence, the various deputy prime ministers and the Minister of Public Security to approve the specific operations presented by the security establishment for implementation. Since 12 July 2006, the IDF has been carrying out massive military operations in the territory of Lebanon, and the State of Israel has been attacked at the same time with thousands of missiles and Katyusha rockets, which have caused death and injuries to dozens of Israeli citizens in the north of Israel, as well as substantial damage to property. On 13 July 2006, the Minister of Defence appeared before the Foreign Affairs and Defence Committee of the Knesset, and at that session descriptions were given by the minister and by intelligence and operations officers. It should also be stated that on 15 July 2006 the Minister of Defence decided to make use of the power given to him under s. 9C(b)(1) of the Civil Defence Law, 5711-1951 (hereafter: the Civil Defence Law) and he declared the existence of a ‘special situation on the home front.’ This declaration has significance with regard to granting powers to give orders concerning defence of the home front against military attacks. On 16 July 2006, the government convened a second time to discuss the security position and it also considered, inter alia, the special situation on the home front. The government decided, inter alia, that it would consider extending the order made by the Minister of Defence within 48 hours of the date of the declaration after it had received the recommendations of an inter-departmental committee chaired by the director-general of the Prime Minister’s Office (government decision no. 273). The next day, on 17 July 2006, the prime minister made a statement with regard to the security situation before the Knesset. In his statement in the Knesset he announced, inter alia, that:

‘Extreme, terrorist, violent elements are disrupting the life of the whole area and putting its stability in jeopardy. The area in which we live is threatened by these murderous terrorist groups; it is an interest of the whole area — and an international interest — to control them and to stop their activity… We will continue to act with all our power until we achieve this… In Lebanon we will fight in order to achieve the conditions that the international community has determined, and this was given a clear expression only yesterday in the decision of the eight leading nations of the world:

The return of the hostages Ehud (Udi) Goldwasser and Eldad Regev.

An absolute cessation of hostilities.

The deployment of the Lebanese army throughout Southern Lebanon.

The removal of Hezbollah from the area by implementing United Nations resolution no. 1559.

Until then, we will not cease to act.

On both fronts we are speaking of self-defence operations in the most fundamental and basic sense. In both cases we have an interest whose importance and significance go far beyond the scope of the individuals concerned.’

On the same day, the government also adopted decision no. 282, in which it was decided, inter alia, to extend the declaration of the Minister of Defence concerning ‘a special situation on the home front’ in accordance with the power given to the government under s. 9C(b)(3) of the Civil Defence Law. The government also decided ‘to apply to the Foreign Affairs and Defence Committee of the Knesset and to ask for its approval to extend the period during which the declaration is valid until the date on which the government will decide to cancel the declaration.’ It should also be pointed out that the Foreign Affairs and Defence Committee of the Knesset held two additional sessions with regard to the situation. At the session that took place on 18 July 2006, the chief of staff, the Home Front Commander and the Head of the Research Division in the Intelligence Branch appeared before the committee. At the session that took place on 26 July 2006 the prime minister gave the committee a report concerning the security position. An additional government decision that is relevant to the petitions before us is decision no. 309 that the government adopted on 23 July 2006. This decision approved the draft Protection of Workers in a State of Emergency Law, 5766-2006 (hereafter: the Protection of Workers in a State of Emergency Law), which was intended to prevent the dismissal of workers who are unable to go to work during the period of the hostilities. With regard to the economic loss caused to Israeli residents as a result of the current security position, we were told in the response to the petitions that was filed on behalf of the attorney-general that on 27 July 2006 an agreement was signed between government representatives, the General Federation of Labour and the Manufacturers Association of Israel. This agreement was intended, inter alia, to regulate matters concerning employment relations that were affected by the security position and the directives of the security forces. The aforementioned agreements in the sphere of labour relations were enshrined in an agreement that the government regards as a collective agreement, and the government also gave notice of its intention to table a draft law in order to apply the provisions of the aforesaid agreement to all the workers in the economy. The Minister of Finance also announced, within the framework of the agreement of 27 July 2006, that he intended to submit, for the approval of the Finance Committee of the Knesset, the Property Tax and Compensation Fund (Payment of Compensation) (War Damage and Indirect Damage) Regulations (Temporary Provision), 5766-2006 (hereafter: the Property Tax Regulations, 2006), which would provide, inter alia, a mechanism that would allow compensation to be given to towns that were not considered border towns under the Property Tax and Compensation Fund Law, 5721-1961 (hereafter: the Property Tax Law) and the regulations enacted thereunder. The Property Tax Regulations would also determine the areas and periods in which employers would be entitled to compensation from the state for indirect damage, and would also determine the amount of the indirect damage. On 31 July 2006, the Finance Committee of the Knesset did indeed approve the aforesaid regulations, and on the same day the Knesset also passed the Protection of Workers in a State of Emergency Law, whose purpose, as aforesaid, was to protect workers who were absent from their work because of the security situation.

The petitions

2.            As stated, three petitions were filed against the background of the events arising from the hostilities, and these were heard jointly before us on 30 July 2006. All of them concern the legal steps required by the situation that has arisen. In the petition filed by the petitioner in HCJ 6204/06, MK Dr Y. Beilin argues that the government of Israel acted unlawfully in that it did not make a decision to start a war in accordance with s. 40(a) of the Basic Law: the Government, even though Israel has de facto been in a state of war since 12 July 2006. The petitioner also argues that, contrary to the provisions of s. 40(c) of the Basic Law: the Government, the government did not deliver a notice of its intention to start a war to the Foreign Affairs and Defence Committee of the Knesset, nor did the prime minister give such a notice to the plenum of the Knesset. The petitioner emphasizes that the matter at issue in the petition is not the question whether the decisions made by the political leaders concerning the war were justified, but whether they complied with the constitutional obligations imposed on them with regard to the manner of making the decision to start a war. The petitioner also addresses in his petition the economic ramifications that he claims are the result of not making a declaration of war. The petitioner therefore requests that the respondents make use of the power given to them in s. 40(a) of the Basic Law: the Government, and that the government should decide to make a declaration of war. The petitioners in HCJ 6235/06, who are business owners in Haifa and Tiberias, request that a state of emergency should be declared in Israel that will have immediately effect in the area of Haifa and the north, and that the government shall be liable to enact emergency regulations in order to prevent the collapse of the petitioners’ businesses and to enable them to continue to survive from an economic viewpoint during the emergency period. The petitioner in HCJ 6274/06, the Movement for Quality Government in Israel, requests that the respondents should exercise the powers given to them under the law in order to give real financial compensation to the workers and their employers, especially in the north of Israel, who have been harmed economically by the military hostilities taking place at this time. According to the petitioner, the respondents are liable to compensate financially those citizens who have been harmed economically by the war and the refusal of the respondents to exercise their powers amounts to a shirking of the state’s duty to the residents in the line of fire, which is unreasonable and results in an unequal division of the economic burden, as well as undermining the values of solidarity and collective responsibility.

Deliberations

3.            Let us first consider the arguments of the petitioner in HCJ 6204/06 with regard to the relief he is seeking that a state of war should be declared. These arguments are based on the provisions of s. 40 of the Basic Law: the Government, which states the following:

‘Declaration of war          40. (a) The state shall not begin a war other than by virtue of a government decision.

                (b) Nothing in this section shall prevent military operations that are required for the purpose of the defence of the state and the security of the public.

                (c) A notice of a government decision to start a war under subsection (a) shall be delivered to the Foreign Affairs and Defence Committee of the Knesset at the earliest opportunity; the prime minister shall also deliver the notice at the earliest opportunity to the plenum of the Knesset; a notice of military operations as stated in subsection (b) shall be delivered to the Foreign Affairs and Defence Committee of the Knesset at the earliest opportunity.’

Section 40(a), which according to the petitioner is the relevant section in this case, was intended to ensure that the State of Israel would not begin a war without a decision of the government, which has collective responsibility to the Knesset (see s. 4 of the Basic Law: the Government). Section 40(c) of the Basic Law: the Government provides that the government should give notice of a decision that it makes under s. 40(a) of the Basic Law to the Foreign Affairs and Defence Committee of the Knesset, and that the prime minister should also give the notice at the earliest opportunity to the plenum of the Knesset. These provisions are a tangible expression of the responsibility of the government to the Knesset.

In his arguments before us, counsel for the petitioner, Advocate Ashlagi, discussed at length the constitutional importance of the aforesaid s. 40(a), and how important it is that the government should act according to law and carry out the constitutional processes required by the Basic Laws, which are the basis for the government’s collective responsibility to the Knesset. The state argued before us, in so far as the current conflict between Israel and Hezbollah is concerned, that the government saw no reason in the present situation why it should make use of its power under s. 40(a) of the Basic Law: the Government; according to its outlook, it is carrying out military operations in accordance with s. 40(b) of the Basic Law: the Government, and the government decision of 12 July 2006 was made accordingly.

4.            The constitutional propriety of the proceedings whereby a government decision is made with regard to starting military activity in Lebanon is what lies at the heart of the petition of MK Y. Beilin. According to the Basic Law: the Government, the government is the executive authority of the state and it has collective responsibility to the Knesset. By virtue of its role as the executive authority of the state, the government is responsible for managing the foreign affairs of the state and by virtue of its status and according to s. 2(a) of the Basic Law: the Army, the army is subservient to it. Part of the democratic character of our system of government is that all the security authorities are subservient to the government, whereas the government, as aforesaid, is responsible to the Knesset (see, in this regard, A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel — the Organs of Government and Citizenship (sixth edition, 2005), at pp. 979-981; M. Kremnitzer and A. Bendor, The Basic Law: the Army (Commentary on the Basic Laws edited by I. Zamir, 2000), at pp. 44-45). Indeed, in order to uphold the principles of our system of government, it is very important that no significant military operations are carried out without a government decision and without parliamentary scrutiny. This is also the premise underlying the provisions of s. 40 of the Basic Law: the Government; the provisions of the section are intended to ensure that there is no departure from the basic principles concerning the responsibility of the government on behalf of the state for military operations and also to ensure that the government is responsible to the Knesset for carrying out such operations. The provisions of ss. 40(b) and (c) of the Basic Law: the Government were also enacted to this end; these provide the exception to the rule in s. 40(a) and the duty of reporting to the Knesset. It should be emphasized that s. 40(a) of the Basic Law did not define what constitutes ‘starting a war’ within the meaning of the section. This is a complex question that is multi-faceted. The definition of the concept of ‘war,’ when we are speaking of the government’s powers with regard to military operations, cannot be separated from the foreign affairs of the state and the functioning of the government in the sphere of international relations. Therefore, the interpretation of the concept of ‘war’ in this context, which has ramifications in the international sphere, is based mainly on the rules of international law. A decision of the government that can be interpreted as a declaration of war is likely to have extreme consequences in the sphere of international relations, and indeed in the international sphere formal declarations of war have not been customary in recent decades. It is not superfluous to add that according to international law a formal declaration of war is not a condition for the existence of a state of war or an armed conflict, nor is it required for the application of the rules of international law concerning the manner of conducting the fighting (see C. Greenwood, ‘Scope of Application of Humanitarian Law’ in D. Fleck, Handbook of Humanitarian Law in Armed Conflicts (1999), at p. 43; I. Detter, The Law of War (second edition, 2004), at pp. 9-17; R. Sabel, International Law (2003), at pp. 423-424).

It should be noted that in Israeli law there is also no binding connection between the existence of a state of war, with all of its legal ramifications, and an official declaration of the government to start a war. The expression ‘war’ appears in various pieces of legislation and the interpretation given to it depends on the purpose of the legislation and the legislative environment in which the expression appears, rather than on the formal proceeding of a declaration of starting a war (see, for example, s. 99 of the Penal Law, 5737-1977, concerning the offence of aiding an enemy in a war; s. 1 of the Declaration of Death Law, 5738-1978, concerning the definition of the term ‘killed’; s. 211(c) of the Customs Ordinance [New Version], concerning the commission of an offence of smuggling during a state of war. See also CrimA 6411/98 Manbar v. State of Israel [1], at pp. 194-197). In support of his arguments, counsel for the petitioner contends that in the last few days steps have been taken to effect a large-scale call-up of reserve forces. He also argued that the Minister of Defence said publicly that we are at war and all of these show that we are indeed speaking of a war within the meaning of s. 40(a). This argument is not convincing, because it has no legal foundation. Large-scale military operations, firing by hostile forces (including a terrorist organization) on a civilian population, the civil population’s feeling of emergency and threat and the casualties suffered as a result of military operations on both sides of the border all lead to a security situation in which the State of Israel is regarded by the public as in a state of war. It should be emphasized that even from a legal perspective, for the purpose of various laws, the current security position may be considered a state of war. But this is insufficient to establish a basis for making a declaration to start a war for the purpose of the provisions of s. 40(a) of the Basic Law: the Government. The provisions of s. 40(a) say that ‘The state shall not begin a war other than by virtue of a government decision’ (emphasis supplied). In the circumstances that have arisen, the government is entitled to determine that the military operations that it decided to carry out do not constitute ‘starting a war’ but merely military operations that constitute self-defence in response to aggression. The government acted in this regard within the framework of its clear authority in accordance with the broad discretion given to it with regard to all matters of foreign and defence policy (see and cf. HCJ 5128/94 Federman v. Minister of Police [2]; see also HCJ 5167/00 Weiss v. Prime Minister [3], at pp. 471-472, and the references cited there).

We should also add that the concern expressed by counsel for the petitioner with regard to a violation of the constitutional purpose of the provisions of the section has no foundation. Even though the government decided that the military activity in Lebanon falls within the scope of the provisions of s. 40(b) of the Basic Law, de facto it also carried out all of the procedures stipulated in the law that are relevant to a decision under s. 40(a). The decision to carry out military operations against the Hezbollah organization was made by the government as a whole. The Foreign Affairs and Defence Committee was given a report about this decision, and several reports were also given to the committee with regard to the developments that took place. These reports satisfy the requirement that the government’s decision is subject to parliamentary scrutiny. In this way, the government de facto discharged its duty even in accordance with the more stringent requirements of s. 40(a). We should also add that the fact that no use was made of s. 40(a) of the Basic Law is of no significance for the purpose of the economic compensation and aid required by the residents of the north of the country. For this reason, the manner in which the government acted in making the decisions under discussion is consistent with its powers and the scope of discretion given to it, and it does not give rise to any ground for our intervention (cf. HCJ 3975/95 Kaniel v. Government of Israel [4], at p. 493; HCJ 963/04 Laufer v. State of Israel [5], at pp. 334-335).

5.            The question of determining the method of compensating the residents of the north of the country, which was raised in all the petitions before us, is a serious question that deserves the immediate consideration of the government and the Knesset. There is no doubt that the residents of the areas that lie within range of the continual shooting carried out by the Hezbollah without respite are entitled to be compensated by the state for the direct and indirect damage suffered by them. A large sector of the population has been harmed and is confined to reinforced rooms and shelters. Ordinary life — business, trade, agriculture and industry — has been disrupted. Workers have been prevented from going to their places of work and employers have been reduced to economic difficulties. All of this requires the special attention of the government and the Knesset in order to find appropriate solutions. We see from the statement of counsel for the Attorney-General that at the very moment steps are being taken by the government, which will also be submitted for the approval of the Knesset, and these will include various compensation arrangements for the residents of the north. It can also be seen from this statement that there are also proper legal tools in existing legislation (see ss. 35-38B of the Property Tax Law, and the Property Tax and Compensation Fund (War Damage and Indirect Damage) Regulations, 5733-1973), and in so far as adjustments are required for the current situation the government will take steps to initiate legislation and to enact regulations immediately. The Knesset has notified us that there are private bills pending before the Knesset, and these are intended for the same purpose. The government also gave notice, as we said above, that on 27 July 2006 it reached an agreement with the General Federation of Labour and the Manufacturers Association of Israel with regard to the regulation of employment relations between workers and employers that are affected by the current security position. The agreement also contains a mechanism that will allow compensation for towns that are not currently considered ‘border towns’ under the Property Tax Law and the regulations enacted thereunder. It should be noted, however, that this agreement is valid for a period that ended on 31 July 2006 and it was argued before us that the agreement does not encompass all of the problems that have arisen as a result of the military operations. In any case, in view of the statements given to us with regard to the steps being taken for this purpose, it can be assumed that the government will indeed act as quickly as possible in order to ensure an immediate reduction of the damage caused to the residents of the north and proper compensation for the severe economic harm caused to them. And so, as we said above, on 31 July 2006 the Knesset passed the Protection of Workers in a State of Emergency Law, which concerns the protection of workers’ rights in the current security situation. On the same date, the Finance Committee of the Knesset also approved the Property Tax Regulations, 2006, whose purpose is to regulate the compensation for certain aspects of the economic loss of residents of the north resulting from the military operations. The provisions of the law and the regulations enshrine the provisions of the agreement that was signed on 27 July 2006. Therefore, in so far as the petitions relate to the lack of compensation arrangements, there has been a change in the legal position since the petitions were filed. In so far as the arrangements that have been made do not satisfy the petitioners and their dissatisfaction is well-founded, the doors of this court will be open to them. In concluding our judgment, we should point out that with regard to the claims of the petitioners in HCJ 6235/06, who are requesting that a state of emergency should be declared and that emergency regulations should be enacted, there is no need for the relief sought by them. The Knesset already decided on 31 May 2006 to extend the state of emergency that has existed in Israel since it was founded by another year, by virtue of the power given to the Knesset in s. 38 of the Basic Law: the Government. Moreover, the petitioners also did not succeed in showing any reason why the measure of enacting emergency regulations should be adopted in order to regulate the granting of compensation to which they claim they are entitled.

For these reasons the petitions should be denied.

 

 

Justice A. Procaccia

I agree.

 

 

Justice E. Arbel

I agree.

 

 

Petition denied.

7 Av 5766.

1 August 2006.

 

HCJ 2245/06

1.            MK Neta Dobrin

2.            MK Ronen Tzur

v.

1.            Israel Prison Service

2.            Yigal Amir

3.            Dr Larissa Trimbobler

 

 

The Supreme Court sitting as the High Court of Justice

[13 June 2006]

Before Justices A. Procaccia, S. Joubran, E. Hayut

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: The second respondent (Amir) was convicted of the murder of the late Prime Minister Yitzhak Rabin and was sentenced to life imprisonment. While in prison, he married the third respondent. When the first respondent refused, on security grounds, to allow Amir conjugal visits with his wife, Amir applied to the first respondent to be allowed to provide his wife with a sperm sample for the purposes of artificial insemination. The first respondent granted his request.

The petitioners, two members of the Knesset, consequently filed the petition, arguing that the first respondent did not have any authority in statute to grant the request and its decision was therefore ultra vires. In addition, the petitioners argued that it was immoral to allow the murderer of the prime minister to have children; that he had no right to start a family while in prison, that the parental capacity of the third respondent should have been considered; and that the decision was contrary to the natural rules of justice and unreasonable, in that it gave no weight to the feelings of deep abhorrence felt by most citizens at the despicable acts perpetrated by Amir.

 

Held: The first respondent’s decision was made intra vires. A prisoner has a constitutional human right to parenthood. This does not cease automatically as a result of the sentence of imprisonment, although it may be restricted for reasons relevant to the imprisonment. The first respondent does not need an authorization in statute to permit a prisoner to realize his rights. The premise on which the petition is based is fundamentally unsound; it effectively turns the law upside down and undermines basic principles of public and constitutional law. When a person has a right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: authority is required in statute in order to restrict or violate the right.

The first respondent does not have a power to add to a prisoner’s punishment that was imposed on him in the sentence handed down by the court. The public’s feelings of abhorrence at Amir’s crime cannot affect the scope of the human rights given to him in prison, and the nature of the restrictions upon them that are permitted.

 

Petition denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 4, 8.

Knesset Elections Law, 5729-1969, s. 116.

Penal Law, 5737-1977, ss. 1, 48.

Prisons Ordinance [New Version], 5732-1971, ss. 25, 56(30), 58, 76.

Release from Imprisonment on Parole Law, 5761-2001, ss. 9, 10.

 

Israeli Supreme Court cases cited:

[1]          LHCJA 3172/99 Amir v. Israel Prison Service (unreported).

[2]          LHCJA 5614/04 Amir v. Israel Prison Service (unreported).

[3]          HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (1) IsrLR 443.

[4]          LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) (unreported).

[5]          HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [2003] IsrSC 57(1) 419.

[6]          CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661; [1995-6] IsrLR 320.

[7]          CA 232/85 A v. Attorney-General [1986] IsrSC 40(1) 1.

[8]          LCA 3009/02 A v. B [2002] IsrSC 56(4) 872.

[9]          CA 2266/93 A v. B [1995] IsrSC 49(1) 221.

[10]        LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [2003] IsrSC 57(5) 385.

[11]        HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[12]        LHCJA 3713/04 A v. State of Israel (not yet reported).

[13]        LHCJA 1552/05 Hajazi v. State of Israel (not yet reported).

[14]        LHCJA 8866/04 Hammel v. Israel Prison Service (not yet reported).

[15]        PPA 4463/94 Golan v. Prisons Service [1996] IsrSC 50(4) 136; [1995-6] IsrLR 489.

[16]        PPA 1076/95 State of Israel v. Kuntar [1996] IsrSC 50(4) 492.

[17]        PPA 5537/02 State of Israel v. Sarsawi [2004] IsrSC 58(1) 374.

[18]        PPA 4/82 State of Israel v. Tamir [1983] IsrSC 37(3) 201.

[19]        HCJ 114/86 Weil v. State of Israel [1987] IsrSC 41(3) 477.

[20]        LHCJA 4338/95 Hazan v. Israel Prison Service [1995] IsrSC 49(5) 274.

[21]        HCJ 221/80 Darwish v. Prisons Service [1981] IsrSC 35(1) 536.

[22]        HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [1986] IsrSC 40(1) 567.

[23]        HCJ 89/01 Public Committee Against Torture v. Parole Board [2001] IsrSC 55(2) 838.

[24]        LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [2005] IsrSC 59(2) 176.

[25]        LHCJA 9837/03 A v. Parole Board [2004] IsrSC 58(2) 326.

[26]        HCJ 337/84 Hukma v. Minister of Interior [1984] IsrSC 38(2) 826.

[27]        CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

[28]        HCJ 1/49 Bajerno v. Minister of Police [1948] IsrSC 2 80.

[29]        HCJ 9/49 Bloi v. Minister of Interior [1948] IsrSC 2 136.

[30]        HCJ 144/50 Sheib v. Minister of Defence [1951] IsrSC 5 399; IsrSJ 1 1.

[31]        HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [1954] IsrSC 8 1524.

[32]        HCJ 112/77 Fogel v. Broadcasting Authority [1977] IsrSC 31(3) 657.

[33]        HCJ 935/89 Ganor v. Attorney-General [1990] IsrSC 44(2) 485.

[34]        HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[35]        HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [1988] IsrSC 42(2) 309.

[36]        HCJ 217/80 Segal v. Minister of Interior [1980] IsrSC 34(4) 429.

[37]        HCJ 6358/05 Vaanunu v. Home Front Commander (not yet reported).

[38]        HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[39]        CA 518/82 Zaitsov v. Katz [1986] IsrSC 40(2) 85.

[40]        HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[41]        BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [2004] IsrSC 58(4) 55.

[42]        HCJ 543/76 Frankel v. Prisons Service [1978] IsrSC 32(2) 207.

[43]        HCJ 7837/04 Borgal v. Israel Prison Service [2005] IsrSC 59(3) 97.

[44]        HCJ 96/80 Almabi v. Israel Prison Service [1980] IsrSC 34(3) 25.

[45]        HCJ 144/74 Livneh v. Prisons Service [1974] IsrSC 28(2) 686.

 

American cases cited:

[46]        Turner v. Safley, 482 U.S. 78 (1987).

[47]        Overton v. Bazzetta, 539 U.S. 126 (2003).

[48]        Hudson v. Palmer, 468 U.S. 517 (1984).

[49]        Pell v. Procunier, 417 U.S. 817 (1974).

[50]        Washington v. Harper, 494 U.S. 210 (1990).

[51]        Skinner v. Oklahoma, 316 U.S. 535 (1942).

[52]        Eisenstadt v. Baird, 405 U.S. 438 (1972).

[53]        Carey v. Population Services International, 431 U.S. 678 (1977).

[54]        Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).

[55]        Stanley v. Illinois, 405 U.S. 645 (1972).

[56]        Anderson v. Vasquez, 28 F.3d 104 (9th Cir. 1994).

[57]        Hernandez v. Coughlin, 18 F.3d 133 (2nd Cir. 1994).

[58]        Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986).

[59]        Goodwin v. Turner, 908 F.2d 1395 (8th cir. 1990).

[60]        Percy v. State of New Jersey, Department of Corrections, 278 N.J. Super. 543 (App. Div. 1995).

[61]        Gerber v. Hickman, 291 F.3d 617 (9th cir. 2002).

 

English cases cited:

[62]        R. v. Secretary of State for the Home Department, Ex Parte Simms [1999] 3 All ER 400.

[63]        R. (Mellor) v. Secretary of State for the Home Department [2001] 3 W.L.R. 533.

 

European Commission of Human Rights cases cited:

[64]        X v. UK (1975) 2 D&R 105.

[65]        X v. Switzerland (1978) 13 D&R 241.

[66]        Hamer v. UK (1979) 4 EHRR 139.

[67]        Draper v. UK (1980) 24 D&R 72.

[68]        ELH and PBH v. UK (1997) 91A D&R 61.

 

European Court of Human Rights cases cited:

[69]        Dickson v. United Kingdom, no. 22362/04 [2006].

[70]        Hirst v. United Kingdom, no. 74025/01 [2005].

[71]        Aliev v. Ukraine, no. 41220/98 [2003].

[72]        Evans v. United Kingdom, no. 6339/05 [2006].

 

For the petitioners — S. Ben-Ami.

For the first respondent — I. Amir.

For the second and third respondents — A. Shamay, O. Schwartz.

 

 

JUDGMENT

 

 

Justice A. Procaccia

1.            Yigal Amir, a prisoner serving a life sentence, was convicted of the murder of the late Prime Minister Yitzhak Rabin. He submitted an application to the prison authorities in which he requested permission to send a sperm sample out of the prison in order to enable the artificial insemination of his wife, Larissa Trimbobler. On 5 March 2006, the competent authority at the Israel Prison Service decided to grant the request (hereafter — ‘the decision).

2.            The petitioners, who were both members of the last Knesset, filed a petition against the Israel Prison Service and against the prisoner and his wife in order to cancel the decision. Alternatively, they request that the Israel Prison Service establish a special committee composed of professionals who will consider and examine the conditions required for granting a permit to a security prisoner regarding artificial insemination, which should take into account, inter alia, the factor of the best interests of the child that will be born and examine the consent and ability of the wife to take responsibility for raising him, and it should make recommendations in this regard. We were also asked to stay the decision of the Israel Prison Service that is the subject of this petition until the proceedings in the proposed committee are completed. As a third option, the petitioners request that they be allowed to table a draft law in this matter, and that the implementation of the decision should be stayed in the interim.

Background

3.            The respondent was convicted of the murder of the late Prime Minister Yitzhak Rabin and of the wounding of his bodyguard in aggravated circumstances. He was sentenced to life imprisonment and to an additional six years imprisonment. He was also convicted in another trial of conspiracy together with his brother, Haggai Amir, and another person, Dror Edni, to murder the prime minister, and of conspiring with them to assault residents of Arab towns and Palestinian police personnel in Judaea and Samaria. For this conviction he was sentenced to an additional eight years imprisonment, to be served consecutively.

4.            Because of the nature of the risk presented by Amir, he was classified by the prison authorities as a ‘security prisoner.’ This classification led to the imposition of various restrictions upon him, of which the main ones are that he is held separately from other prisoner, surveillance cameras are installed in his cells and there are visitation restrictions. Various objections by Amir to these restrictions were rejected (LHCJA 3172/99 Amir v. Israel Prison Service [1], PPA (BS) 2077/01, and see also PPA (TA) 2853/05-A). Notwithstanding, Amir’s application to allow him to have meetings with the third respondent, his wife, was approved by the court; this was because, inter alia, no evidence was presented with regard to her activity (PPA (BS) 2077/01).

5.            In January 2004, Amir submitted a request to the Israel Prison Service to be allowed to marry Larissa and to have conjugal visits with her. When the response was slow in coming, Amir filed a prisoner’s petition in this matter to the Tel-Aviv District Court. In response to the petition, the Israel Prison Service gave notice that it decided to deny the request for conjugal visits, and that it had not yet formulated a position on the question of marriage. The District Court, in reliance on privileged intelligence information, decided to deny Amir’s petition with regard to conjugal visits. Amir applied for leave to appeal this decision in the Supreme Court, which denied the application (LHCJA 5614/04 Amir v. Israel Prison Service [2]; hereafter — LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits)). In its decision (per Vice-President M. Cheshin), the court examined the conflict of values between the right of a human being to conjugal visits, and the interest of state security that is likely to conflict with it, and it evaluated their weight in order to balance them. The court found that in the circumstances of the case there was a real concern that allowing conjugal visits between the couple would lead to a security risk. It said that the great risk presented by Amir had not decreased since he committed the offences for which he was serving his sentence, and he remained committed to the terrorist ideology that he espoused in the past. The court also found that Amir was the subject of adulation and a role model in certain circles, there was concern that unsupervised meetings with his wife would be abused in order to transmit messages in the spirit of his extreme views, and that he would thereby influence others to carry out extreme acts of the kind that he committed. The concern regarding security interests was greater, in the opinion of the court, because of information that was submitted, according to which Larissa had independent contacts with extreme activists who identified in their ideologies with Amir’s beliefs. All of this led to the court’s conclusion that the refusal of the competent authority to allow Amir conjugal visits with his wife was reasonable and proper. The question of Amir’s right to marry his wife was not decided in that case, since at that stage the decision of the Israel Prison Service on this matter had not been made. At a later stage Amir and Larissa married by proxy, and on 10 July 2005 the marriage was declared valid by the Rabbinical Court.

6.            On 27 July 2005 Amir made a request to the Israel Prison Service to allow him to carry out procedures for the purpose of artificial insemination treatments for his wife, in order to allow them ‘to realize their desire to bring children into the world,’ and he produced a medical certificate in this regard as required by the authority. On 3 January 2006, before a decision was made with regard to the request, Amir filed a prisoner’s petition in which he applied ‘to carry out artificial insemination with his wife, Ms. Larissa Trimbobler.’ On 5 March 2006, after considering the legal position, the Israel Prison Service decided to approve Amir’s request. The following is the language of the decision:

‘1.           After the petitioner’s request has been examined [it has been decided] to allow the petitioner to send sperm outside the prison for the purpose of the artificial insemination of Ms. Larissa Trimbobler.

2.            The transmission of the sperm sample will be allowed within the framework of a visit by Ms. Larissa or within the framework of a visit by another person who is permitted to visit the petitioner.

3.            Nothing in the aforesaid amounts to consent for the prisoner to be allowed outside the prison for the purpose of any fertility treatments or for other fertility treatments to be administered in the prison, something that was not even requested by him.

4.            It is also clarified that no change whatsoever will be allowed in the rules governing the terms in which the petitioner is held, including the number of visits to which the petitioner is entitled.

5.            If you wish to clarify anything concerning the manner of transmitting the sperm sample, we ask you to refer the matter to us and the matter will be examined by us.’

The petition before us is directed against this decision.

The arguments of the parties

The arguments of the petitioners

7.            The petitioners’ arguments are composed of several strata: first, they argue that the Prison Service Commissioner does not have the authority to grant a permit to a security prisoner to transmit a sperm sample for the purpose of insemination within the framework of the powers given to the Commissioner under the Prisons Ordinance, which gives him power to regulate matters of prison administration and discipline. According to the petitioners, a permit for artificial insemination, if at all, should be found in express legislation and not in administrative guidelines, and therefore the decision of the Israel Prison Service concerning Amir should be set aside because it was made ultra vires. Alternatively, even if the decision was made intra vires, it should be set aside on the merits because it is immoral and violates the basic outlooks of an enlightened society. It is not right to allow the murderer of a prime minister, who has not expressed regret for his despicable act, to give life to a new generation of his progeny and to bequeath the heritage of his despicable beliefs through his child. This decision, so it is alleged, departs from the natural rules of justice, runs contrary to administrative reasonableness and is also contrary to the rules of equality between prisoners, since it was made without carrying out a process of properly examining the right of all security prisoners to have children. The petitioners further argue that a prisoner has no inherent right under the law to create a family while he is in prison. Giving permission for artificial insemination by a prisoner constitutes a privilege that requires the discretion of the competent authority in the specific case, and this should be exercised by balancing the wishes of the prisoner to bring children into the world with maintaining discipline in the prison. In this case, no balance was made between these values, and for this reason also the decision is defective. Amir’s special personal circumstances, the seriousness of his actions, his current attitude to his actions and his conduct in the prison were not considered. In giving this kind of permission, the authority should also consider questions of the parental capacity of the mother to raise on her own the child that will be born, as well as the interests of the child, and no weight was given to these matters in the decision of the Israel Prison Service. Finally, the petitioners argue that the unreasonableness of the decision is also reflected in the fact that no weight was given to the serious injury to the feelings of the public that will be caused by granting this permission, in view of the deep abhorrence felt by the citizens of Israel towards Amir for his despicable acts.

The position of the state

8.            The state’s position is that there is no basis for intervening in the decision of the Israel Prison Service to allow Amir to send a sperm sample out of the prison for the artificial insemination of his wife. According to case law, a distinction should be made between restrictions on human rights required by the actual imprisonment, such as a restriction on the freedom of movement, and restrictions on other rights that are not inherent to the imprisonment and are not limited by an express provision of statute. A restriction on the ability of the prisoner to provide a sperm sample for artificial insemination is not inherent to the actual imprisonment, and there is no provision of statute that prohibits or restricts it. In the absence of such an express provision of statute, and in the absence of a security reason or any concern of prison discipline that requires such a restriction, there is no basis for denying Amir’s request to give a sperm sample to his wife. In the course of the hearing, the state gave notice that the Israel Prison Service intends in the near future to formulate a general procedure concerning the sending of sperm samples by prisoners to their wives.

The position of the second and third respondents

9.            The argument of the second and third respondents, Amir and his wife, is that even if we assume that the offences that Amir committed are despicable offences, there is no legal or moral basis for depriving them of the right to have children. The sentence imposed on Amir is limited to depriving him of his freedom for his whole life; it does not extend to the basic right to have a family and to bring children into the world, nor does it permit these to be restricted without a conflicting consideration of great weight. A prisoner retains his human rights as long as there is no public interest of great weight that justifies depriving him of them, and in this case there is no such interest. The consideration of the best interests of the child, which was raised by the petitioners as a reason for denying Amir his right to hand over a sperm sample, is unfounded, since it is clear that the wife has full parental capacity, and this assumption has not been rebutted.

Decision

10. A prisoner serving a life sentence, who has been convicted of the despicable murder of a prime minister, wishes to realize the right to have children by giving a sperm sample to his wife outside the prison. The Israel Prison Service granted his request, while stipulating certain conditions for it that concern the administrative arrangements of the prison. Were there any defects in this administrative decision that justify the intervention of this court to amend it or set it aside?

In view of the petitioners’ arguments, it is clear that we are required to examine the validity of the commissioner’s decision in two respects: the issue of authority and the issue of administrative discretion. With regard to the issue of authority, the question is whether the commissioner required express authority under the law to grant permission to a prisoner to transfer a sperm sample to his wife outside the prison. With regard to the issue of discretion, the question is whether the decision is reasonable and proportionate; were all the relevant considerations and no others taken into account? Was the balance between the relevant considerations a proper and proportionate one, in view of the fact that we are concerned with a basic right which can only be violated if the tests of the limitations clause in the Basic Law: Human Dignity and Liberty are satisfied?

I will start with my conclusion and say that the commissioner’s decision was made intra vires and it contains no departure from the powers given to him by law; the decision on its merits is founded on relevant considerations, it is reasonable and proportionate and it does not contain any defect that justifies judicial intervention.

The following are my reasons.

The commissioner’s powers — a normative outline

11. Does the commissioner’s decision to allow Amir to hand over a sperm sample fall within the scope of his authority under the law? Is special authorization required in the law in order to give this permission, such that without such authorization the permission falls outside the scope of the authority’s power?

There is currently no express statutory arrangement with regard to the right of a prisoner to give a sperm sample to his wife for the purposes of insemination outside the prison. Notwithstanding, the existence of such a legislative arrangement is not a precondition for permitting this, for the following reason: according to general constitutional principles of law, a person in Israel has constitutional human rights. These are reflected, inter alia, in the Basic Law: Human Dignity and Liberty (hereafter — ‘the Basic Law’), which enshrines some of the human rights and gives them a super-legislative status. These rights include the human right to dignity, from which the right to family and parenthood is derived.

The constitutional outlook that focuses on the protection of human rights is based on the assumption that the constitutional rights of a person are not absolute, and sometimes there is no alternative to allowing a violation of them in order to realize a conflicting essential public interest. In circumstances where tension arises between a human right and a conflicting public purpose, a balance needs to be struck between them for the purpose of finding the balancing point that will reflect the proper relative importance of the conflicting values. The tests in the limitations clause in s. 8 of the Basic Law are what define the criteria for a permitted violation of the Basic Law, and they are an essential tool for properly balancing the right and the public interest, whose realization necessarily involves a violation of the right. A violation of the right will only satisfy the required constitutional test if the act that violates the right is done pursuant to statute, is consistent with the values of the state, is for a proper purpose and satisfies the test of proportionality.

This normative constitutional basis also lies at the heart of the proper approach to the rights of prisoners who have been sentenced to imprisonment, including those serving a life sentence. It is an established rule that a criminal sanction, including imprisonment, does not automatically deprive someone serving a sentence or a prisoner of his human rights, except to the extent that the restriction of those rights is necessarily implied by the imprisonment and is consistent with the nature of the permitted constitutional violation in accordance with the limitations clause.

The Prison Service Commissioner was given his powers under the Prisons Ordinance [New Version], 5732-1971. Beyond the specific powers given to the competent authority in the Ordinance, the Israel Prison Service is responsible for administering the prisons, guarding the prisoners and doing everything required by these duties (s. 76). The prisons and the warders shall be under the command and management of the commissioner, subject to the directives of the minister (s. 80). The authority of the commissioner extends to the organization of the prison service, administrative arrangements, prison management, discipline and ensuring the proper functioning of the service, and he is authorized to issue general orders in this regard. Within the scope of its authority, the Israel Prison Service is subject to the general principles of the constitutional system and to the fundamental constitutional recognition of human rights and the rights of prisoners that derive therefrom. The restrictions that it is authorized to impose on the prisoners derive from the enabling law, which is the Prisons Ordinance, but where these restrictions violate human rights, they must also satisfy the constitutional test of the limitations clause in the Basic Law. When we are speaking of a constitutional human right, which is given by the Basic Law to a person as a human being, we should not look in the enabling law for a right to uphold it, but the opposite: where the authority wishes to restrict it, we should examine whether it has the power to do so and whether the use made of that power amounts to a permitted constitutional violation in accordance with the limitations clause in the Basic Law.

As we shall describe below, the right of a prisoner to be a parent and to have a family is a constitutional human right, which does not automatically cease to exist as a result of the sentence of imprisonment, even though it is likely to be subject to various restrictions as a result of the conditions of the imprisonment. It follows that the Prison Service Commissioner does not need an authorization in the law to permit a prisoner to realize the various aspects of the right to have a family and to be a parent that he has by virtue of recognized basic rights in Israel. It is a refusal to allow a prisoner to realize the right to have children and to be a parent that makes it necessary to satisfy the tests for a permitted constitutional violation. Such a situation will exist where the prisoner’s right to be a parent and to have a family is opposed by a conflicting value of sufficient weight that it justifies denying the right to a proper degree, in view of the relative weight of the conflicting values.

In our case, Amir, like any other prisoner, has a human right to establish a family and to be a parent. He was not deprived of the right to establish a family and to bring children into the world by the actual sentence that was imposed on him, even if the loss of liberty resulting from the imprisonment deprives the prisoner of the ability to realize family life in full. The Prison Service Commissioner therefore does not need an express authorization in order to give practical expression to the realization of this right, which is one of the supreme constitutional human rights in Israel. Had the commissioner denied the basic right, this would have required him to show that there were good reasons that supported the violation, and defining the scope of the violation in accordance with the tests of the limitations clause.

In addition to the scrutiny of the decision from the perspective of the authority to make it, we shall also examine the question of its reasonableness in view of the arguments that were raised. This scrutiny will focus on the question whether the authority addressed the relevant considerations and balanced all the relevant considerations in the case properly. The principles of constitutional scrutiny also apply to the consideration of this question, as we shall make clear below.

Let us examine in greater detail the principles of the normative framework that apply to this case.

Constitutional human rights and the right to family and parenthood

12. The Basic Law: Human Dignity and Liberty enshrines the human rights to dignity and liberty and thereby expresses the values of the State of Israel as a Jewish and democratic state (s. 1A). It provides that the dignity of a person as a human being may not be violated and that every person is entitled to protection of his dignity (ss. 2 and 4); it recognizes the possibility of violating a person’s basic constitutional rights, provided that the violation satisfies the tests of the limitations clause (s. 8). The tests in the limitations clause make the constitutional legitimacy of the violation conditional: it should be done pursuant to statute or by virtue of an express authorization therein; it should be consistent with the values of the state; it should be for a proper purpose and it should not be disproportionate.

Within the scope of the right to human dignity lies the right of a person to have a family and to be a parent (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3]). The right to family is one of the most basic elements of human existence. It is derived from the protection of human dignity, from the right to privacy and from the realization of the principle of the autonomy of the will of the individual, which lies at the very essence of the concept of human dignity. The family and parenthood are the realization of the natural desire for continuity and for the self-realization of the individual in society (LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) [4]; HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [5], at p. 447; CFH 2401/95 Nahmani v. Nahmani [6], at p. 719 {390}). Within the scope of the human right to dignity, the right to family and parenthood is a constitutional right that is protected by the Basic Law (cf. also CA 232/85 A v. Attorney-General [7], at p. 17; LCA 3009/02 A v. B [8], at p. 894; CA 2266/93 A v. B [9], at p. 235).

On the scale of constitutional human rights, the constitutional protection of the right to parenthood and family comes after the protection of the right to life and to the integrity of the human body. The right to integrity of the human body is intended to protect life; the right to family is what gives life significance and meaning. I discussed this in one case:

‘These are first principles; the right to parenthood and the right of a child to grow up with his natural parents are rights that are interrelated, and together they create the right to the autonomy of the family. These rights are some of the fundamental principles of human existence, and it is difficult to describe human rights that are equal to them in their importance and strength’ (A and B (prospective adoptive parents) v. C and D (biological parents) [4], at para. 6 of my opinion).

This right is therefore very high on the scale of constitutional human rights. It is of greater importance than property rights, the freedom of occupation and even the privacy of the individual. ‘It reflects the essence of the human experience and the concrete realization of an individual’s identity’ (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], at para. 6 of my opinion).

A violation of the right to parenthood and family will be legitimate only if it satisfies the tests in the limitations clause. These tests reflect a balance of the weight of the basic rights against other needs and values that are essential for the existence of proper social life. Basic rights, including the right to family, are not absolute; they derive from the realities of life that make it necessary to give a relative value to human rights and other substantial interests, whether of other individuals or of the public. A harmony between all of these interests is a condition for a proper constitutional system (LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [10]). In order for a violation of a human right to satisfy the constitutional test, it must fall within the proper margin of balances, which weigh the right against the conflicting value. The more elevated the status of the constitutional right, the greater the weight of the conflicting interest that is required in order to derogate from or counter the right (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], ibid.).

Prisoners’ rights

13. The constitutional outlook that gives human rights a supreme normative status also has ramifications on the human rights of a prisoner, and his ability to realize these rights when he is in prison. The constitutional system in Israel is based on the presumption that a person’s basic rights should not be denied or restricted unless there is a recognized conflicting interest, whether private or public, that is of sufficient weight to justify this. The same presumption also applies to sentences that are handed down to offenders. Its significance is that the protection of human rights is extended to prisoners even after they have been sentenced, and a violation of their rights is possible only where a conflicting public interest of great significance justifies it. Such a violation is recognized only to the extent necessary in order to achieve the conflicting interest, but no more. In this spirit it has been said that:

‘The walls of the prison do not separate the person under arrest from human dignity. Life in the prison inherently requires a violation of many liberties that are enjoyed by a free man… but life in the prison does not necessitate a denial of the right of a person under arrest to bodily integrity and to protection against a violation of his dignity as a human being’ (per Justice Barak in HCJ 355/79 Katlan v. Prisons Service [11], at p. 298).

Restrictions on prisoners’ rights

14. According to the prevailing constitutional system, an offender who is sentenced to imprisonment does not automatically lose all of his human rights. The violation of his rights is limited solely to the degree that it is required in order to achieve the goals of a substantial public interest. These goals include, first and foremost, the purpose of the sentence of imprisonment, which is intended to deprive the prisoner of his personal liberty during the term of imprisonment that was imposed.  By being deprived of his personal liberty, a prisoner suffers a violation of a basic right, but the violation is made pursuant to a law that befits the values of the state; it is intended for the proper purpose of isolating the offender from society for a defined period in order to protect the security of the public from the realization of an additional danger that the offender presents, and to rehabilitate him; the assumption is that it is a proportionate sentence relative to the severity of the offence that was committed and the other circumstances that are relevant to the sentence. Restricting the liberty of a prisoner is an inevitable consequence of the sentence that was imposed upon him, and therefore the violation of liberty receives constitutional protection. The restriction upon personal liberty, which is a consequence of the imprisonment, also gives rise to a necessary violation of certain other human rights that cannot be realized because a person is imprisoned. Thus, for example, the prisoner suffers a violation of his right to engage in his occupation, his right to privacy, and to a certain extent also his right of expression, with all the liberties that derive from it. The violation of human rights that accompanies imprisonment as an inherent consequence thereof is limited solely to an essential violation arising necessarily from the loss of personal liberty, but no more than that.

Another purpose that may justify a violation of a human right of a prisoner concerns the need to ensure the proper administration of the prison and to safeguard the welfare of its inmates. The competent authority has the responsibility to impose various restrictions that are required for managing life in prison in an effective manner, and these include maintaining order, security and discipline in the prison, as well as protecting the security of the inmates, the safety of the warders and the safety of the public from the dangers that are presented by the prison inmates (LHCJA 3713/04 A v. State of Israel [12]; LHCJA 1552/05 Hajazi v. State of Israel [13]; LHCJA 8866/04 Hammel v. Israel Prison Service [14]; and PPA 4463/94 Golan v. Prisons Service [15]). For the purpose of achieving the objective concerned with the proper administration of the Israel Prison Service, the Commissioner is competent to give comprehensive orders with regard to all the aspects of prisoners’ lives, and these may in several respects restrict their personal autonomy in various spheres (PPA 1076/95 State of Israel v. Kuntar [16], at p. 299; PPA 5537/02 State of Israel v. Sarsawi [17], at p. 379; Golan v. Prisons Service [15], at pp. 152 {506} and 172-175 {534-539}).

An additional reason for the restrictions on the rights of a prisoner may derive from other needs that involve an important general public interest, which is not directly related to the prison administration, such as, for example, a need that derives from general reasons of state security that are relevant mainly to security prisoners. Considerations of this kind may make it necessary to impose various restrictions on a prison inmate, which may violate his human rights.

When restrictions that are imposed by the public authority violate the human rights of a prisoner and they do not arise inherently from the loss of his liberty as a result of the imprisonment, they should materially satisfy the tests of the limitations clause in order to comply with the constitutional test. They should be consistent with the values of the state, intended for a proper purpose and satisfy the requirement of proper proportionality.

According to the prevailing legal outlook, a sentence that imposes imprisonment on an offender — and this includes a life sentence — is directly intended to deprive him of his personal liberty for the term of the sentence. The restrictions on the other rights, whether they are inherent to the imprisonment or they are intended to achieve other purposes, are not a part of the purpose of the sentence (PPA 4/82 State of Israel v. Tamir [18], at p. 206; HCJ 114/86 Weil v. State of Israel [19], at p. 483; Golan v. Prisons Service [15], at pp. 152-153 {506}; LHCJA 4338/95 Hazan v. Israel Prison Service [20], at pp. 275-276). The constitutional justification for imposing them depends upon the existence of a public purpose of special importance that justifies the violation in accordance with the tests of the limitation clause (Katlan v. Prisons Service [11], at p. 298). The greater the importance of the human right on the scale of human rights, the stronger the reasons required in order to justify a violation of it (Golan v. Prisons Service [15], at para. 13; HCJ 221/80 Darwish v. Prisons Service [21], at p. 546; HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [22], at p. 573).

It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their inherent purpose is not to increase the severity of the sentence that was handed down to the prisoner. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts. Where this is the purpose of the restrictions, they are likely to fail the constitutional test, since this is not a proper purpose. A restriction that is not required by the realization of the purposes of imprisonment or that is not required by another legitimate public purpose constitutes, de facto, the imposition of an additional sentence on the prisoner for the offence of which he was convicted. Such a restriction that adds to the sentence imposed on the prisoner falls outside the scope of the power to limit the rights of prisoners that is granted to the Israel Prison Service. It is a departure from the principles of criminal sentencing, and especially from the principle of legality that is enshrined in s. 1 of the Penal Law, 5737-1977, according to which there are no offences or sanctions unless they are prescribed in statute or pursuant thereto. The penal sanction takes the form of the actual loss of freedom of movement in a prison, which is determined by the court that handed down the sentence; in view of this, the Israel Prison Service is not competent to add a punitive measure to the sentence that was handed down (ss. 9 and 10 of the Release from Imprisonment on Parole Law, 5761-2001; HCJ 89/01 Public Committee Against Torture v. Parole Board [23], at p. 869, and also LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [24], at p. 185; LHCJA 9837/03 A v. Parole Board [25], at p. 333).

The principles of this approach to the rights of a prisoner in Israel have been expressed in case law over the years. In Golan v. Prisons Service [15], at p. 152 {501-502} the court said (per Justice Mazza):

‘It is established law in Israel that basic human rights “survive” even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law…

The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison. If the authorities wish to suspend, or to restrict, his ability to exercise even liberties of this kind, it is required to show that its power to do so is enshrined in a specific provision of law.’

(See also HCJ 337/84 Hukma v. Minister of Interior [26], at p. 832; CrimApp 3734/92 State of Israel v. Azazmi [27], at p. 81).

The right of a prisoner to family life and parenthood

15. The criminal sanction involved in imprisonment was not intended, in itself, to violate the right of the offender to family life and parenthood directly. Notwithstanding, it is clear that a prisoner is de facto deprived of the physical ability to have a regular family life and thereby to realize the right to family as a result of the loss of his personal liberty that is a result of the imprisonment. The violation of the ability to realize a family life in the prison is inherent to the restriction of liberty, and therefore it lies within the margin of the permitted constitutional violation. Isolating the prisoner from society in order to realize the purposes of the sentence also results in a separation from his spouse, children and wider family circle. But even though this restriction is inherent to the imprisonment, the existence of a human right to family and parenthood requires that the scope of the violation is reduced as much as possible, to its essential limits only, such as by way of giving controlled permission for family visits to prisoners, granting furloughs when defined conditions are satisfied, providing facilities that allow conjugal visits between spouses, etc.. This preserves the proportionality of the violation of the human right, which is inherently required by the loss of liberty resulting from imprisonment.

The right to have children is an integral part of the right to family life. It is given to every human being and a prisoner is not deprived of it merely because of the sentence that was imposed on him. The de facto realization of the right to have children given to a prisoner depends on the question whether there is a public-systemic consideration of sufficient weight that justifies preventing a prisoner from realizing it, whether in general or in a specific case. Whereas a prisoner cannot realize a full family life since it is inconsistent with the restriction of liberty resulting from imprisonment, the right to bring children into the world as such may be consistent with the framework of imprisonment, if certain conditions are fulfilled. The realization of this right may be consistent with conjugal visits between spouses, which are ordinarily allowed when certain conditions are fulfilled, in accordance with the procedures of the Israel Prison Service. Because of the need to limit the violation of the prisoner’s human right merely to the most essential cases, where it is not possible to allow conjugal visits because the prerequisites for this are not satisfied, the prisoner may be left to realize his right to be a parent by way of artificial insemination outside the prison, which does not require a conjugal visit. This possibility is consistent with the purpose of the sentence to keep the prisoner isolated from society, and it does not usually involve a disturbance to the Israel Prison Service administration from the viewpoint of the procedures and resources at its disposal. If, however, there is another reason that justifies the realization of the right to be prevented or restricted, it needs to be a substantial reason that can justify a violation of a human right of the greatest importance, to which even a prisoner is entitled.

The right to have children is a human right that is enshrined in the value of human dignity. This value includes the right of a person to personal autonomy and to self-realization in the form of bringing children into the world. The status of the right to have children imposes on the executive authority a duty to uphold it and to give it significant weight in the course of its deliberations, even when the person seeking to realize it is serving a life sentence in prison. The restriction on the right to have children by means of artificial insemination of the wife outside the prison is not necessarily implied by the restriction of the prisoner’s liberty. Notwithstanding, like all human rights, this right too is not absolute, and it may in certain circumstances give way to conflicting interests of great weight. But in view of the strength of the right, reasons of particular importance are required in order to outweigh it and to justify a violation of it, and the principles used to balance them should be consistent with the conditions of the limitations clause, with the elements of the proper purpose and proportionality that are enshrined therein (New Family Organization v. Surrogacy Agreements Approval Committee [5], at pp. 444-445).

It has been held in the past that:

‘We must remember and recall that the human dignity of a prisoner is like the dignity of every person. Imprisonment violates a prisoner’s liberty, but it must not be allowed to violate his human dignity. It is a basic right of a prisoner that his dignity should not be harmed and all the organs of government have a duty of respecting this right and protecting it from violation… Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic State is liable to uphold. A State that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

As an enlightened society, we should ensure that the dignity of the prisoner is upheld and that his rights are protected as long as it does not conflict with the true purposes of the imprisonment or is inconsistent with a public interest of great importance that justifies a restriction of his rights. This duty applies to every prisoner as such. It applies to a prisoner who is serving a short sentence and it applies to a prisoner who is serving a long sentence for serious felonies. It is also the case with regard to a prisoner serving a life sentence for murder, whether the murder was committed against a background of gang wars in the criminal underworld or it is the murder of a prime minister. The same is true of a security prisoner. The set of principles is the same for every prisoner as such, even though the specific application to individual prisoners may vary from case to case according to the conditions and the circumstances.

The power of the commissioner to give permission to hand over a sperm sample — conclusions

16. The premise on which the petition is based is that express authority is required in statute for the competent authority to allow a prisoner to undergo a procedure of artificial insemination with his wife; without this, granting such permission goes beyond the powers given to it under the law. This premise is fundamentally unsound, and it effectively turns the law upside down and undermines basic principles of public and constitutional law. The reason for this is that when a person has a right, and certainly when he has a constitutional right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: it requires an authorization in statute in order to restrict or violate the right, and where the violation restricts or denies the realization of a human right, it should satisfy the tests of the limitations clause as a condition for its validity and legitimacy. Already in HCJ 1/49 Bajerno v. Minister of Police [28], at p. 82, it was held (per Justice S.Z. Cheshin) that:

‘Where an applicant complains that a public official prohibits him from doing a certain act, the applicant does not need to prove that there is a statute that imposes a duty on the public official to allow him to do the act. The opposite is true: the public official has the duty of proving that there is a justification for the prohibition that he is imposing’ (see also HCJ 9/49 Bloi v. Minister of Interior [29], at p. 140; HCJ 144/50 Sheib v. Minister of Defence [30], at p. 411 {14}; HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [31], at p. 1532; HCJ 112/77 Fogel v. Broadcasting Authority [32], at pp. 663-664).

It follows that in our case there is no need to ask whether the Israel Prison Service is competent to permit a prisoner to realize his right to parenthood by means of artificial insemination; at most, we may need to ask whether there is a power to restrict this right, and what is the scope of such a possible restriction in the special circumstances of the case. This question does not arise directly in this case, since the competent authority has recognized and respects the right of the prisoner to parenthood, and it has thereby given expression to a recognition of the human right to family and parenthood that the prisoner has, in so far as possible, even within the framework of imprisonment. It has thereby recognized that the protection of human rights is given to a prisoner in so far as possible, including a prisoner serving a life sentence for a despicable murder, and that the ability to restrict the right does not depend on the nature of the offence but, if at all, on public or systemic purposes that are not a part of the purposes of sentencing. In the circumstances of this case, the commissioner acted within the limits of his authority when he did not find any systemic or other reasons that justify a restriction on the prisoner’s right. His decision relies on recognized basic principles of constitutional law and it gives expression to the right of the prisoner when no basis was found for restricting it.

The decision of the public authority according to the test of reasonableness

17. In addition to the petitioners’ argument that the commissioner’s decision to allow Amir to give a sperm sample to his wife outside the prison was made ultra vires, they also argued that this decision does not satisfy the test of reasonableness. According to this argument, the unreasonableness is expressed first and foremost in the fact that the permission given to Amir to realize his right to have children conflicts with public morality and injures the feelings of the public, when it is given to the murderer of a prime minister; it is also argued that granting the permission ignores the interests of the child who will grow up without a father; finally it is argued that in giving the permission the commissioner did not make a comprehensive examination of the significance of the issue for all prisoners, and in the absence of a general procedure in this regard, he acted in a manner that violates the principle of equality between prisoners.

An examination of the reasonableness of a decision of an administrative authority requires, in the first stage, a clarification of whether it considered factors that are relevant and pertinent to the case; second, we consider the question whether, when making its decision, the authority made a proper balance between all the factors that should be taken into account, and whether a proper relative weight was given to each of these. An examination of the reasonableness of an administrative decision is therefore conditional on a proper balance of the relevant considerations (HCJ 935/89 Ganor v. Attorney-General [33]; HCJ 5016/96 Horev v. Minister of Transport [34], at p. 34 {183}; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [35]; HCJ 217/80 Segal v. Minister of Interior [36]; HCJ 6358/05 Vaanunu v. Home Front Commander [37]).

Where a decision of the public authority violates a human right, an examination of the administrative reasonableness of the decision is conditional upon its satisfying the tests of the limitations clause — proper values, a proper purpose and proper proportionality. The criterion for balancing derives from the limitations clause (Horev v. Minister of Transport [34], at para. 54 of the opinion of President Barak). The elements of the limitations clause are incorporated in the criteria that have been formulated in public law rulings for examining a violation of basic human rights by an administrative authority (HCJ 4541/94 Miller v. Minister of Defence [38], at p. 138 {231}). The court has also held:

‘This connection between the constitutional limitations clause and all the principles of public law — including human rights that are not covered by the Basic Laws… The general purposes are the values of the State of Israel as a Jewish and democratic state. The specific purposes are the “proper purpose” in the limitations clause. The principle of proportionality that is provided in the Basic Law is an additional expression of the principle of reasonableness, according to which we have also been accustomed in the past to interpret legislation. It follows that the transition from the previous law to the limitations clause is “quick” and “clean,” and it involves no difficulty’ (per President Barak in Horev v. Minister of Transport [34], at p. 43 {194-195}).

When an administrative decision violates a constitutional human right, the premise is, first, that the conflicting value whose realization leads to the violation befits the values of the state; second, that this value should be a relevant objective consideration that to a large extent overlaps with the conditions of the ‘proper purpose’ in the limitations clause; and finally, whether in the overall balance proper relative weight was given to the human right, on the one hand, and the conflicting value, on the other, and whether the administrative decision chose a balancing point that properly balances the conflicting values. This is the requirement of proper proportionality in its constitutional sense.

In our case, on one side of the equation is the right of a human being, who is a prisoner serving a life sentence, to realize his right to be a parent by way of fertilizing his wife with a sperm sample that will be sent out of the prison. His application is filed against a background of the refusal of the public authority to allow him conjugal visits with his wife, because of security considerations. The petitioners argue that there are values that conflict with the right of the prisoner to parenthood, which were not given any weight, and therefore the permission that was granted is invalid. These conflicting values are, first and foremost, an outrage to public morals and public feelings that, it is argued, results from permission to have children being given to a criminal who was convicted of murdering a prime minister. Such permission runs contrary to the feeling of natural repulsion that the public feels towards a vile offender of this kind. It seriously injures the feelings of the public, which is repulsed by the despicable offence and the offender who committed it, and which expects that he will spend the rest of his life in prison in absolute isolation, without him being allowed to realize his rights to family and parenthood, or any aspect thereof.

I cannot accept this position. The values that are under discussion, on which the petitioners base their objection to the permission that was given, do not satisfy the test of administrative relevancy or the element of the proper purpose in the limitations clause. The public’s feelings of repulsion towards Yigal Amir for the despicable crime that he committed are, in themselves, understandable and natural, but they are not relevant to the restriction of the right of a prisoner to become a parent by way of artificial insemination. They do not achieve a ‘proper purpose’ that is required as an essential conditional for a violation of a human right.

No one denies that the offence of murder that Amir committed and for which he was sentenced to life imprisonment deserves public condemnation and will be recorded in the history of the state as one of the most terrible offences committed in Israel since its founding. But the seriousness of the offence that was committed, with all of its ramifications, found full and final expression in the criminal sanction that was handed down to Amir. The sentencing considerations that are taken into account within the framework of the sentence lie solely within the sphere of authority of the judiciary, and when the sentence is handed down, the sanctions imposed on the offender are exhausted. The Israel Prison Service does not have jurisdiction to punish the prisoner in addition to the sentence that was imposed on him by restricting human rights that even he has as a prisoner. The argument of showing abhorrence for the base acts of the offence that he committed is insufficient. The public’s feelings of repulsion for an offender who took human life and murdered the state’s leader are also incapable of affecting, in themselves, the scope of the human rights given to him in the prison, and the nature of the permitted restrictions upon them. Basic principles of public morality and the desire for revenge that is felt by a part of the public towards one prisoner or another do not constitute a relevant consideration or a proper purpose for preventing a prisoner from realizing his human right to parenthood, as long as this realization does not amount to a significant administrative disruption in the management of the prison or another relevant violation of a significant public interest that justifies its restriction. The human right is also retained by a prisoner who was convicted of the most terrible offences, and no matter how great the feeling of abhorrence at his acts, it cannot constitute an objective reason for restricting his rights. The strict application of the test for the scope of permitted violations of a human right in accordance with the elements of the limitations clause is what guarantees that the protection of the right does not become neglected; it ensures, especially in difficult cases like the one before us, that the constitutional principles are observed. Since the considerations of public morality, public sentiment and especially the deep abhorrence that most of the public feels towards Yigal Amir for his act are not relevant to a restriction of his right to parenthood and are therefore not a proper purpose, they also cannot serve as an objective conflicting value that may compete with the prisoner’s right to become a parent. Therefore we do not need to consider the question of proportionality, which would have arisen had these considerations constituted a relevant objective reason to restrict Amir’s right and which would have given rise to a need to balance them against his right.

We ought to add in this context that it is precisely because Amir was not given the possibility of conjugal visits by his wife for security reasons that the possibility of realizing his parenthood by being allowed to carry out artificial insemination remains his last resort. These circumstances provide even greater justification for the decision of the Israel Prison Service authorities concerning Amir.

Even the petitioners’ additional argument that Amir should not be given permission because of the damage that can be anticipated to the best interests of the child that will be born to the couple cannot serve as a valid ground for violating the right to parenthood in the circumstances of this case.

The question when the consideration of the best interests of the child may justify preventing his birth is a profound question in the field of ethics and philosophy. The question when the law may intervene in this, and when a public authority has power to intervene in the human right to have a child for reasons of the best interests of the child and for other reasons, is a very difficult and complex one. The right to have a child and the right to be born are concepts that lie to a large extent in the field of morality and ethics that are outside the law. Whether and in what circumstances the Israel Prison Service has a power to restrict the right to have a child against a background of considerations of the best interests of the child is a difficult and loaded question. Thus, for example, a question may arise as to whether the Israel Prison Service may prevent a prisoner’s conjugal visits or the realization of his right to parenthood because of a serious and contagious disease from which he suffers that is likely to infect his wife and child (CA 518/82 Zaitsov v. Katz [39], at pp. 127-128; Nahmani v. Nahmani [6], at pp. 729-30). Is it entitled to restrict the right of women inmates in the prison to have children when they have been sentenced to long terms of imprisonment for the reason that it is not desirable from the viewpoint of the best interests of the child to raise him inside the prison or, alternatively, to condemn him to be placed in a foster home or in an adoption, or to separate him from his mother when he reaches a certain age? Are these considerations that the Israel Prison Service may address and do they fall within the scope of its authority? These questions do not require an answer in this case, since with regard to the best interests of the child it has only been argued that he is expected to be born to a single-parent mother because the father has been sentenced to life imprisonment. This argument has no merit in the specific context. No reasons have been brought before us to show, on the merits, any real grounds why the best interests of a child that will be born from artificial insemination to the Amir couple will be harmed. No basis has been established for the argument that Amir’s wife lacks the capacity to raise a child. Moreover, the raising of a child by a single-parent mother while the father is sentenced to life imprisonment does not in itself indicate that the child’s best interests are harmed, nor does it allow the public authorities to restrict the right of his parents to have children. In the modern world, the single-parent family has become a common and accepted phenomenon, and it does not in itself indicate harm to the interests of the child on such a scale and to such an extent that it justifies the intervention of the public authority in a way that violates the right of individuals to self-realization by bringing children into the world. The mere fact that one of the parents is in prison does not constitute, prima facie, a ground for violating the right of the couple to parenthood and the right of a child to be born, for reasons of his best interests. The remarks of Prof. Shifman in his book Family Law in Israel, vol. 2, at p. 156, are pertinent:

‘… In artificial insemination we are concerned with planning the coming into the world of a child who has not yet been born, in order to realize the expectations of persons to be parents. Is it possible to determine categorically that it would be better for that child not to be born than for him to be born? Will the situation of that child necessarily be so wretched merely because he is born into a single-parent family that for this reason we have a duty ab initio to prevent him from coming into the world?’

In this case, no factual basis was established to show harm to the best interests of the child that may be created as a result of giving the permission to the Amir couple. Therefore the question of balancing the relevant conflicting values to the right to parenthood does not arise, and this argument should be rejected.

18. This leaves the argument that the prison authorities did not conduct a comprehensive examination of the question of prisoners sending sperm samples to their wives, nor did they formulate a general procedure for all prisoners in this regard, nor did they make the proper balances in this regard with regard to the case of Amir, who in their opinion has received better treatment in comparison to other prisoners.

In this matter also the petitioners’ arguments are general and they do not establish a concrete factual basis for the existence of conflicting values to the prisoner’s right, which would justify a restriction or denial thereof. Indeed, the prison authorities have stated that they will take action to prepare general procedures concerning the transfer of sperm samples of prisoners to their wives for the purpose of artificial insemination outside the prison. But their willingness to do this, which is important in itself, has no bearing on the specific decision in Amir’s case, which is reasonable. From the state’s response we see that, first and foremost, it took into account as a relevant factor the right of the prisoner to artificial insemination, and it gave this right the proper weight. There is no real public or administrative need that can be a consideration that conflicts with the prisoner’s right in this case, to the extent that it might justify a violation of the right. The security considerations that were the basis for the refusal of the Israel Prison Service to allow Amir conjugal visits with his wife are not relevant to the transfer of a sperm sample out of the prison, and no other legitimate administrative argument was raised that might justify a violation or restriction of the aforesaid right of the prisoner.

Since there is no important value that conflicts with the prisoner’s right to parenthood, no proportionate balance is required here between relevant conflicting considerations, nor is there a proper reason to violate the prisoner’s human right (see Horev v. Minister of Transport [34], at p. 37 {187}; Ganor v. Attorney-General [33], at pp. 513-514; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [40], at paras. 40 and 41).

In addition, no concrete information was brought before us to support the petitioners’ claim with regard to a violation of equality between prisoners as a result of granting the permission to Amir. Moreover, the concept of equality in this context is loaded and complex, and it may justify possible distinctions between types of prisoners from the perspective of the possibility to realize the right to have children while in prison. Thus, for example, it is possible that there will be a distinction between the ability of male prisoners to realize parenthood by sending sperm samples to their wives for the purpose of insemination and raising children outside the prison, which does not involve any responsibility on the part of the public authority for the birth and raising of the child and does not require any special institutional and budgetary arrangements, and the ability of the authority to allow pregnancies and childbirths of female prisoners in the prison on a large scale, which gives rise to difficult questions concerning the manner of raising and caring for the child after his birth, as well as questions involving resources and budgets that are required for this purpose. This issue involves difficult moral and practical questions that relate both to the prisoners and to the children who are born to a difficult fate. Logic therefore dictates that in this area of realizing the right to parenthood there may be a legitimate distinction between types of prisoner according to various criteria, which should satisfy the constitutional test.

In view of the aforesaid, there is no merit to the petitioners’ argument that the decision of the commissioner to permit the transfer of Amir’s sperm sample to his wife outside the prison was tainted by a defect of unreasonableness. The Israel Prison Service acted in making its decision in accordance with its responsibility by virtue of general legal principles, which recognize the right of the prisoner to realize his right to parenthood, and it saw fit to allow its implementation by way of giving a sperm sample to his wife outside the prison, in the absence of significant conflicting considerations that justify a restriction of the right.

Comparative law

International conventions and the position of the United Nations

19. The position of Israeli constitutional law on this issue and its ramifications upon the rights of prisoners serving a prison sentence is in essence consistent with the outlook of the international conventions and the position of the United Nations. This is the case with regard to the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, which was ratified by Israel in 1991, and also with regard to the position of the Human Rights Commission of the United Nations and the basic principles that were determined by its institutions with regard to the treatment of prisoners. According to these sources, the right of a person to have children is considered to be a natural right, and it may only be restricted by statute, in accordance with the purposes of the United Nations Universal Declaration of Human Rights, and on reasonable grounds according to the circumstances of the case. With regard to the rights of prisoners, the principle enshrined in these conventions is that these should only be limited by those restrictions that are required by the actual imprisonment.

The right to found a family

Article 16 of the Universal Declaration of Human Rights establishes the right to marry and found a family.

This is also provided in art. 23 of the International Covenant on Civil and Political Rights:

‘1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.’

In interpreting this article, the United Nations Human Rights Commission has held that the significance of the right to found a family in its fundamental sense is the right to procreate and to live together (General Comment no. 19 (1990)):

‘The right to found a family implies, in principle, the possibility to procreate and live together.’

The right to protection against arbitrary intervention in family life

Article 12 of the Universal Declaration of Human Rights enshrines the right to privacy and protection against arbitrary intervention in family life.

Article 17(1) of the International Covenant on Civil and Political Rights also enshrines the right to privacy and protection against arbitrary intervention in family life:

‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’

The United Nations Human Rights Commission has commented that this right should only be restricted by law and in accordance with the objectives of the Covenant and should be reasonable in the particular circumstances. It also said that the term ‘family’ should be given a broad interpretation (General Comment no. 16 (1988)).

Prisoners’ rights

Article 5 of the Universal Declaration of Human Rights provides that:

‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’

In addition, article 7 of the International Covenant on Civil and Political Rights provides (inter alia) that no one should be subjected to degrading punishment, and article 10(1) of the Covenant provides that:

‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’

With regard to this article, the United Nations Human RiOPghts Commission has determined that a person who has been deprived of his liberty should not suffer a violation of additional rights except to the extent that the restrictions are required by the actual imprisonment:

‘3.           … Thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment’ (emphasis added).

Similarly the Basic Principles for the Treatment of Prisoners, 1990, that were adopted by the United Nations provide that:

‘5.           Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.’

Human rights and prisoners’ rights under the European Convention on Human Rights

20. The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, regulates the protection of human rights in the European Community. Article 8 of the convention provides the right to respect for private and family life, and article 12 provides the right to marry and to found a family:

‘Article 8 – Right to respect for private and family life

1.            Everyone has the right to respect for his private and family life, his home and his correspondence.

2.            There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

…

Article 12 – Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’

The European Prison Rules of the Council of Europe, 1987, (Recommendation no. R (87) 3 of the Committee of Ministers of the Council of Europe) constitute recommendations for standard minimum rules of imprisonment for the countries of Europe, in which the inherent basic outlook is that the deprivation of liberty is itself a punishment, and it should not be aggravated by imposing conditions of imprisonment that are unnecessary:

‘64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.’

(With regard to the centrality of this principle, see the explanatory notes to the rules, para. 64, ibid.). These principles are consistent with the constitutional outlook underlying the legal system in Israel.

In X v. UK [64] an English prisoner applied to be allowed to have a conjugal visit with his wife. The European Commission of Human Rights (hereafter also: ‘the commission’), to which individuals had to apply at that time in order to file a case in the European Court of Human Rights, held that under art. 8(2) of the convention, it was possible to prevent prisoners from having conjugal visits for reasons of public security. In X v. Switzerland [65], a married couple from Switzerland, who were held separately in the same place of arrest for a period of approximately two months, applied to be allowed to have conjugal visits. The commission held that considerations of public security in a prison might justify preventing married persons under arrest from having conjugal visits. It also held that the persons under arrest were married and had already established a family, and it therefore followed that they were entitled to respect for family life under art. 8, and that a violation of the right to family which is justified under art. 8(2) cannot be considered at the same time a breach of art. 12, which addresses the right to marry.

In two additional cases that considered the right to marry, the commission held that the prisons should allow prisoners to realize their right to marry, since marriage does not create any risk to the security of the prison (Hamer v. UK [66]; Draper v. UK [67]). The commission in these cases rejected the argument that the existence of personal liberty was a precondition for realizing this right, and in the absence of personal liberty the right should not be recognized (Hamer v. UK [66]), and also the argument that imprisonment includes a public interest that justifies preventing the marriage of someone serving a life sentence (Draper v. UK [67]). A particularly important decision for our case was ELH and PBH v. UK [68]. In that case a prisoner requested a conjugal visit with his wife, for the purpose of the wife becoming pregnant. It was also requested that the visit would take place shortly after a surgical operation that the wife would undergo, which was expected to increase her chances of fertility for a short period of time only. The commission reiterated the rule that, notwithstanding the fact that preventing conjugal visits violates the right to respect of family life in art. 8 of the convention, preventing them is justified for the purpose of preventing breaches of discipline and the commission of offences under art. 8(2), and that a justified violation under this provision will not be regarded as a violation of the right to marry under art. 12. Notwithstanding, the commission added that it regarded in a favourable light reforms that were being made in several European countries to prepare prisons to facilitate conjugal visits:

‘The commission considers that it is particularly important for prisoners to keep and develop family ties to be able better to cope with life in prison and prepare for their return to the community. It therefore notes with sympathy the reform movements in several European countries to improve prison conditions by facilitating “conjugal visits”’ (p. 64).

More importantly, the commission went on to say that in the circumstances of the specific case, preventing the visit did not constitute a violation of arts. 8 and 12 of the convention since the local law did not prevent the prisoner having the possibility of artificial insemination:

‘The Commission considers that the same conclusions should be reached under articles 8 and 12 of the convention in the present case, despite the exceptional circumstances invoked by the applicants. Thus, although the first applicant requires major surgery to be able to conceive and this surgery can only be performed when the couple are in a position to attempt conception, domestic law, as the applicants themselves accept, does not exclude artificial insemination in the case of prisoners… The Commission, therefore, considers that no appearance of a violation of Articles 8 and 12 of the convention is disclosed…’ (emphasis added).

From these remarks it can be deduced, prima facie, that the position of the European Commission of Human Rights was that the absolute prevention of a prisoner’s possibility of having children is unconstitutional. But an interesting development in this matter occurred in a judgment that was given only recently by the European Court of Human Rights: Dickson v. United Kingdom [69]. A prisoner who was sentenced to life imprisonment for murder applied, together with his wife (a former prisoner, whom he married in prison), for access to facilities for artificial insemination. The couple argued that when the husband would be released from the prison, the wife would be 51 years old, and if their application would not be granted, their chances of having children would be non-existent. The Secretary of State for Home Affairs refused the application, while clarifying his policy with regard to artificial insemination. According to this policy, requests by prisoners for artificial insemination will be considered on an individual basis, and they will be granted only in ‘exceptional circumstances.’ The policy will give special weight to several factors, including: whether artificial insemination is the only possible means of having children; the date of the prisoner’s release (if the release is very close, it is possible that waiting to be released will not cause much hardship to the prisoner, and if the date is particularly distant, it can be assumed that the prisoner will not be able to function as a parent); whether both parents are interested in the procedure and are able to undergo it from a medical viewpoint; whether the relationship between the couple was stable before the imprisonment, so that it can be assumed that it will continue to be good after the imprisonment; the financial resources of the parent who will raise the child; and whether, in view of the prisoner’s criminal past and other relevant facts, there is a public interest in depriving him of the possibility of artificial insemination. The Home Secretary decided that, even though in that case a refusal of the request meant that the couple would lose most of their chances of having a child, on the other hand the considerations of the seriousness of the offence that was committed and the harm to the interests of the child who would be raised for many years without a father prevailed. The majority justices in the European Court of Human Rights adopted the position of the United Kingdom. First they confirmed that according to the case law of the European Court, the prisoners retain all of their rights under the convention (including the right to respect for privacy and the family) apart from the right to liberty (Hirst v. United Kingdom [70], at para. 69). Notwithstanding, the restriction of liberty naturally results in a restriction upon the ability to realize additional rights, and therefore the key question is whether the nature of the restriction and its degree are consistent with the convention. According to the majority justices, within this framework a distinction should be made between an intervention in the right of the prisoner to respect for family and privacy and a violation that takes the form of non-performance of a positive obligation that is imposed on the state with regard to that right. According to them, even though restrictions on family visits and conjugal visits have been recognized in its previous decisions as intervention in the rights of the prisoner (Aliev v. Ukraine [71], at pp. 187-189), the restriction on the possibility of the prisoner carrying out artificial insemination merely constitutes the non-performance of a positive duty that applies to the state. But when determining the scope of the positive duties, the member states of the convention have a broad margin of appreciation. Further on, the majority justices approved the principle that the convention does not permit an automatic denial of prisoners’ rights merely because of adverse public opinion, but notwithstanding this, according to their approach considerations of public confidence in the penal system are legitimate considerations within the framework of determining policy in the prison. They were also of the opinion that a legitimate consideration in this matter is the question of the best interests of the child. According to these principles, the majority justices held that the criteria determined in the policy of the United Kingdom were neither arbitrary nor unreasonable. With regard to the specific case, the majority justices held that according to the broad margin of appreciation, it was possible to give the considerations of public confidence and the best interests of the child greater weight than the harm to the prisoner in losing the possibility of bringing children into the world. Three justices dissented from this approach. The president of the court, Justice Casadevall, and Justice Garlicki emphasized that the right to have children is a constitutional right, which is enshrined in the convention (Evans v. United Kingdom [72], at para. 57). It follows that the access of a prisoner to artificial insemination facilities is a part of the right to respect for family life in art. 8 of the convention, and where the couple are married, it is also enshrined in art. 12. The minority justices said that the premise adopted by the majority justices, according to which the prisoner retains his constitutional rights apart from the right to liberty is correct. But the logical conclusion that follows from this is that a violation of the right to have children is lawful only if it is necessitated by the restriction on liberty. The minority justices also emphasized that the premise adopted by the United Kingdom in its policy was erroneous, since, according to it, access to artificial insemination would be granted only in special circumstances. This is the opposite of the basic philosophy of human rights and the European Convention, according to which the right is the rule, whereas the restriction of the right is the exception. They held that in the specific case, in which refusing access to artificial insemination facilities means the loss of the possibility of having children in its entirety, the refusal of access was disproportionate. The third minority justice dissented from the majority position that took no account of the mother’s right to have children.

It would appear that the minority opinion in that case is more consistent with the approach to the principles of the convention according to the opinion expressed by the majority, and it is consistent with the principles of the constitutional system in Israel.

English law

21. According to the case law of the House of Lords, imprisonment is intended to restrict the rights and liberties of the prisoner. Therefore, it restricts the personal autonomy of the prisoner and his freedom of movement. At the same time, the prisoner retains all of his civil rights, apart from those that have been taken from him, either expressly or as a necessary consequence of the imprisonment:

‘A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus, the prisoner’s liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that “a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”: see Raymond v. Honey…; R. v. Secretary of State for the Home Department, Ex parte Leech…’ (R. v. Secretary of State for the Home Department, Ex Parte Simms [62]; emphasis added).

The Human Rights Act 1998, which came into force in 2000, applied the main parts of the European Convention on Human Rights (including the rights under discussion in this case) to English law. Without purporting to exhaust the question of how the new statute affected English law, we can say that the various public authorities, including the prisons, are required to act in accordance with the convention (s. 6 of the law). Similarly the courts have a duty to take into account the case law of the European Court of Human Rights (s. 2 of the law; see also P.B Proctor, ‘Procreating from prison: Evaluating British Prisoners’ Right to Artificially Inseminate Their Wives Under the United Kingdom’s New Human Rights Act and the 2001 Mellor Case,’ 31 Ga. J. Int’l & Copm. L. (2003) 459, at pp. 467-470). It should be noted that even before the new law came into force, prisoners were entitled to apply to the European Commission of Human Rights with regard to prima facie breaches of the convention (after exhausting proceedings in England), and the public authorities in England acted in accordance with its decisions. A detailed consideration of the right to have children by means of artificial insemination was made by the English Court of Appeal in R. (Mellor) v. Secretary of State for the Home Department [63]. The Court of Appeal decided that the right of a prisoner to artificial insemination had not yet been recognized in case law under the European Convention, and that a prisoner should not be allowed artificial insemination in every case where he has not been allowed conjugal visits. The implication of the case law, in its view, was that only in exceptional cases, in which the violation of the right granted in the convention was disproportionate, would it be justified to impose a duty to allow artificial insemination. According to the approach of the Court of Appeal, the judgment of the House of Lords in R. v. Secretary of State for the Home Department, Ex Parte Simms [63] means that it is possible to justify a restriction of a prisoner’s rights even when this is not required for reasons of the proper functioning of the prison, but it is a result of the loss of liberty that is inherent in the penal objective:

                ‘They recognised that a degree of restriction of the right of expression was a justifiable element in imprisonment, not merely in order to accommodate the orderly running of a prison, but a part of the penal objective of deprivation of liberty.’

Consequently, according to the approach of the Court of Appeal, there may be a justification for restricting the right to artificial insemination for reasons of public interest:

‘A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern.’

According to the court in England, an additional legitimate consideration for restricting the right is the consideration of the best interests of the child, who will grow up while one of his parents is in prison:

                ‘By imprisoning the husband, the state creates the situation where, if the wife is to have a child, that child will, until the husband’s release, be brought up in a single parent family. I consider it legitimate, and indeed desirable, that the state should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.’

The Court of Appeal did not consider in depth the question when a restriction of the right of a prisoner to carry out artificial insemination will be considered disproportionate. Notwithstanding, it said, as a premise, that it must be shown that preventing the possibility of carrying out artificial insemination does not lead only to a delay in realizing the prisoner’s right to establish a family, but to his being completely deprived of it:

                ‘I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether.’

American law

22. The premise in American law is that prisoners retain their constitutional rights inside the prison:

                ‘Prison walls do not form a barrier separating prison inmates from the protection of the constitution’ (Turner v. Safley [46], at p. 84).

Therefore, the prisoner retains constitutional rights such as the right to equal protection before the law, the right to due process in the Fourteenth Amendment of the United States Constitution, and the right to privacy. At the same time, other constitutional rights that are not consistent with the actual imprisonment are not retained by the prisoner:

                ‘An inmate does not retain [constitutional] rights inconsistent with proper incarceration’ (Overton v. Bazzetta [47], at p. 132; Turner v. Safley [46], at p. 96).

According to the stricter opinion in the United States Supreme Court, the rights of which prisoners can be deprived are only those that are fundamentally inconsistent with imprisonment (‘we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself…’, Hudson v. Palmer [48], at p. 523). But an opinion has been expressed that the rights that are consistent with the actual imprisonment may also be restricted, if this is done for the purpose of realizing legitimate penal objectives:

                ‘It is settled that a prison inmate “retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system,” Pell v. Procunier [49], at p. 822’ (Turner v. Safley [46], at p. 95).

In the leading decision in Turner v. Safley [46], it was held that the appropriate standard for scrutinizing a violation of the constitutional rights of prisoners is the lowest level of scrutiny, the rational connection. The reason for this lies in the complexity of the task of administering the prison, and the court not having the proper tools to consider the matter (ibid. [46], at pp. 85, 89).  In addition, details were given of four tests for examining the constitutionality of the violation, in accordance with the aforesaid standard. The judgment in Overton v. Bazzetta [47], at p. 132, adopted the tests laid down in Turner v. Safley [46] and summarized them as follows:

                ‘Whether the regulation [affecting a constitutional right that survives incarceration] has a “valid, rational connection” to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are “ready alternatives” to the regulation’ (ibid. [47], at p. 132).

The aforesaid standard of scrutiny also applies when the constitutional right that is violated is a fundamental and basic one and when in other circumstances a stricter test would be applied (Washington v. Harper [50], at p. 223). Notwithstanding, restrictions that are imposed in reliance upon a classification that gives rise to a suspicion of a racist consideration are examined with the constitutional strict scrutiny test (Johnson v. California, 543 U.S. 499 (2005)).

The right to have children is recognized in American law as a constitutional right, which lies at the very heart of the right to personal freedom (see: Skinner v. Oklahoma [51], at p. 541; Eisenstadt v. Baird [52], at p. 453; Carey v. Population Services International [53], at p. 685; Cleveland Board of Education v. LaFleur [54], at p. 639; Stanley v. Illinois [55], at p. 651).

In view of these principles, the United States Supreme Court has held that the right to marry is retained even during imprisonment (Turner v. Safley [46]). Notwithstanding, the Federal courts have consistently refused to recognize a right to conjugal visits and intimacy with a spouse as a constitutional right (Anderson v. Vasquez [56]; Hernandez v. Coughlin [57]; Toussaint v. McCarthy [58]). The question whether allowing a prisoner to provide a sperm sample for the purpose of artificial insemination and realizing his constitutional right to have children is consistent or inconsistent with the actual imprisonment and what are the potential conditions for restricting it has not yet been brought before the United States Supreme Court, but other courts in the United States have approved administrative decisions that restrict the realization of the right. These decisions raise the question of whether they are consistent with constitutional principles and the substantive rules of conventional international law on this issue. In Goodwin v. Turner [59] the Federal Court of Appeals of the Eighth Circuit approved a policy that denied prisoners the possibility of artificial insemination. It was held that even if the right survived imprisonment, there was a rational connection between this policy and the duty of the prison to treat all prisoners equally. The argument was that the prisons would also be required to allow female prisoners to realize the right to have children, and as a result also to care for their needs during pregnancy and for their infants, and that this would lead to imposing substantial costs on the prisons and make it necessary to divert resources from important programs and the security needs of the prison. Therefore, for this reason it was possible not to approve artificial insemination for spouses of male prisoners.

                ‘According to the Bureau’s artificial insemination policy statement, if the Bureau were forced to allow male prisoners to procreate, whatever the means, it would have to confer a corresponding benefit on its female prisoners. The significant expansion of medical services to the female population and the additional financial burden of added infant care would have a significant impact on the allocation of prison resources generally and would further undercut the Bureau’s limited resources for necessary and important prison programs and security’ (ibid. [59], at p. 1400; the Supreme Court of the State of New Jersey made a similar ruling in Percy v. State of New Jersey, Department of Corrections [60], at pp. 548-549).

The minority justice in that case thought otherwise. According to him, the right to have children, like the right to marry, survives the imprisonment. In addition, in his opinion it is not legitimate to make use of the principle of equality in order to deny the constitutional right of another (ibid. [59], at pp. 1403-1407). Further detailed consideration of this issue can be found in Gerber v. Hickman [61], in an opinion of the Federal Court of Appeals of the Ninth Circuit. In that case a majority (of six judges) held that the right to have children is inconsistent with the nature of imprisonment, since imprisonment naturally separates the prisoner from his family and his children. It was also stated there that restricting the right to have children is consistent with the legitimate objectives of the penal system, including deterrence and retribution:

                ‘… “these restrictions or retractions also serve… as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction”…’ (ibid. [61], at p. 621).

Following from these remarks it was held that the right to have children is inconsistent with imprisonment, even when it is possible to realize it by means of providing sperm for artificial insemination:

                ‘Our conclusion that the right to procreate is inconsistent with incarceration is not dependent on the science of artificial insemination, or on how easy or difficult it is to accomplish. Rather, it is a conclusion that stems from consideration of the nature and goals of the correctional system, including isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation’ (ibid. [61], at p. 622).

By contrast, the five minority justices were of the opinion that realizing the right to have children by means of a process that does not require an intimate meeting does not pose a security risk, and therefore it is consistent with the substance of imprisonment and should be respected:

                ‘… the right to intimate association and the right to privacy — are clearly inconsistent with basic attributes of incarceration because of security concerns. Procreation through artificial insemination, however, implicates none of the restrictions on privacy and association that are necessary attributes of incarceration’ (ibid. [61], at pp. 624-625).

They also emphasized that the majority judges had not shown why the right to have children was inconsistent with the penal objectives, and in so far as their intention was to deny the right to have children as a method of punishment, a determination of this kind should be made by the legislature:

                ‘The majority identifies correctional goals such as isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation that are supposedly inconsistent with the right to procreate, yet does not explain how the right is inconsistent with any of these goals. If, in fact, the purpose behind prohibiting procreation is to punish offenders, this is a determination that should be made by the legislature, not the Warden’ (ibid. [61], at p. 626).

It would appear that the minority position in this proceeding corresponds in essence to the outlook that has become accepted in the Israeli legal system, whereby human rights are retained by the prisoner in so far as they are not inconsistent with the substance of the imprisonment, and restricting and limiting them is permitted only in so far as this is essential for achieving a very weighty public purpose, such as security and disciplinary arrangements in the prison, or another important public interest. In the absence of such an interest, the remaining rights should be respected, and the prisoner should be allowed to realize them de facto.

Conclusion

23. Yigal Amir was and remains one of the most abhorred criminals in the Israeli national consciousness in recent generations, if not the most abhorred. He was convicted of the murder of a prime minister, and first introduced into the public consciousness the possibility that a terrible event of this kind, in which an ordinary Israeli citizen would murder his leader, could also take place in Israel. Amir has been sentenced by the legal system in so far as the law requires, and his punishment has been exhausted. But his sentence has not reduced the feelings of abhorrence towards him, for the nefarious deed of taking the life of a man who was the symbol of the democratic system of government in the independent State of Israel.

Notwithstanding, from the moment that Amir’s sentence was handed down and he became a prisoner serving a sentence of life imprisonment, his punishment was exhausted. From this stage, like all prisoners, Amir is subject to severe restrictions on his liberty, and additional restrictions on his human rights, that derive inherently and essentially from the loss of his liberty. In addition he is subject to further restrictions that concern the discipline and order that are required by life in the prison. It is also permitted, where necessary, to impose restrictions on him that are derived from the needs of state security or from other essentials needs that are a public interest. But apart from these restrictions he retains, like every prisoner, basic human rights that were not taken from him when he entered the prison (cf. BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [41], at para. 19). The executive authority is required to respect these rights and to do all that it can in order to allow them to be realized, unless they are confronted by conflicting considerations of public interest whose weight justifies a limitation of the human right. These considerations do not include the consideration of desiring to worsen the conditions of imprisonment of someone who is serving a life sentence because of the severity of his crime, or the consideration of restricting his human rights as revenge for his deeds. These considerations are irrelevant to the issue and they are inadmissible.

The outlook that it is possible to violate the prisoner’s right to parenthood because of the gravity of the offence that he committed, for reasons of deterrence and to show abhorrence towards the offender, is foreign to the basic principles of criminal law and to penal theory. This approach is also clearly inconsistent with the prevailing constitutional approach in the Israeli legal system. It is inconsistent with the ethical principles of the State of Israel as a Jewish and democratic state; it does not reflect a proper purpose nor is it proportionate. This court has already said, in another context:

                ‘A restriction upon contact with persons outside the prison should not be imposed on security prisoners if it is not required by security considerations or other objective considerations, but merely derives from considerations of retaliation or revenge, or if it harms the prisoner to a degree greater than that required by objective considerations’ (per Justice Zamir in State of Israel v. Kuntar [16], at p. 501, and LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits), at p. 5).

With regard to the realization of human rights that are retained by a prison inmate, Amir’s status is the same as any other prisoner. In the absence of substantial conflicting considerations of public interest, the human rights that he retains as a prisoner serving a life sentence should be respected and not violated, and the right to parenthood is among the most exalted of these. This is what the competent authority decided in this case, and it was right to do so.

Respect for human rights and the protection of human rights lie at the heart of the constitutional system in Israel. The protection of the human rights of prison inmates is derived from and required by this outlook. Without de facto implementation of this protection, to the extent that it is possible, even for someone who has lawfully been deprived of his liberty, the value of human dignity may be diminished. This is equally true of all prisoners, whether less serious or more serious offenders. It is also true with regard to prisoners serving a life sentence because they have taken human life; society’s recognition of the human rights retained by the prisoner preserves his dignity as an individual. But no less importantly it preserves the dignity of society as a civilized society that does not merely protect the rights of its ordinary citizens, but also those of persons who have committed crimes against it, even if the crime is the worst of all — the murder of a human being — and even where the victim of the murder symbolized in his life and his death the image of Israeli society as a democracy that is built on constitutional values that give precedence to human rights.

                ‘Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic state is liable to uphold. A state that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

We should remember that a civilized country is not merely judged by how it treats its faithful citizens, but also by how it treats the criminals living in it, including the most despicable criminals who wish to undermine its ethical foundations. In a proper constitutional system, the umbrella of human rights extends over every human being, including the criminal sitting in prison, subject to conditions and restrictions that satisfy constitutional criteria. The public authority acted in this case in accordance with the proper constitutional criteria, and its decision was made according to the law.

On the basis of all of the aforesaid, the petition should be denied. The interim order that was made is set aside.

In the circumstances of the case, I propose that no order is made for costs.

 

 

Justice E. Hayut

1.            I agree with the opinion of my colleague Justice Procaccia and I would like to add several remarks.

This petition concerns a decision of the Prison Service Commission of 5 March 2006 to allow Yigal Amir, who is serving a life sentence, to send sperm outside the prison for the purpose of the artificial insemination of his wife, Mrs Larissa Trimbobler. Like my colleague, I too am of the opinion that the argument of the petitioners that the Prison Service Commissioner is not competent to allow the sperm to be transferred as aforesaid should be rejected. The question in this context is not what is the source of the authority to allow this but by virtue of what authority was the Prison Service Commissioner entitled to refuse the request of this prisoner in this regard. It would appear that in so far as the commissioner’s decision does not restrict the human rights of the prisoner but realizes them, his decision enjoys the presumption of being made with authority and no fault can be found with it in this regard. A completely different question is whether the authority has a duty to exercise its power in this matter and what are the limitations and restrictions that it may determine in this regard. These questions do not arise in the case before us, and therefore we can leave them until they do.

2.            With regard to the question of the reasonableness of the decision, the petitioners as public petitioners sought in their petition to give expression to the feeling of abhorrence that the Israeli public feels to the murderer of the late Prime Minister Yitzhak Rabin. According to them, the punishment incorporated in the criminal sanction should also receive expression after the sentence has been imposed, when the murderer is serving his sentence of imprisonment. Therefore, so it is alleged, he should not be allowed to realize his right to parenthood. The petitioners further argue that the decision of the Israel Prison Service to allow the Trimbobler-Amir couple artificial insemination is an improper decision from a moral viewpoint, and according to them ‘a person who commits such a serious crime ought to know that not only will he lose his personal liberty, but also other basic rights may be impaired… someone who takes the life of his fellow-man may discover that that he cannot give life to his progeny.’ The petitioners emphasize, however, that it is not in every case that a prisoner is not entitled to have children, but in their opinion ‘the murder Amir does not have this right.’

3.            In his book A Judge in a Democracy (2004), President Barak discussed how a judge ought not to estrange himself from the society in which he lives and functions. In his words:

‘The administration of justice is a form of life that involves a degree of seclusion; it involves distancing oneself from social and political struggles; it involves restrictions on the freedom of expression and response; it involves a considerable degree of solitude and introspection. But this is not a form of life that involves an estrangement from society. A wall should not be built between the judge and the society in which he functions. The judge is a part of his people’ (ibid., at p. 52).

Indeed, as an integral part of Israeli society we ought to be aware and sensitive to the strong feelings that the public has to the terrible act of murder committed by Amir, and these feelings have been well expressed by the petitioners in their petition. But as judges in a democracy, we are enjoined to decide the petition according to the law, by applying the basic principles of our legal system even if our decision is not consistent with these feelings. In his aforementioned book, President Barak outlines the important distinction between the need to maintain the confidence of the public in its judges and being carried away unprofessionally by public opinion and public feelings. He says:

‘The need to ensure public confidence does not imply a need to ensure popularity. Public confidence does not mean following the prevailing trends among the public. Public confidence does not mean making decisions on the basis of public opinion surveys. Public confidence is not pleasing the public. Public confidence does not mean making decisions that are inconsistent with the law or with the conscience in order to reach a result that the public wants. On the contrary, public confidence means making decisions according to the law and in accordance with the judge’s conscience, irrespective of the public’s attitude to the actual decision’ (ibid., at p. 51).

In our case, it is possible to understand the collective feeling of revenge that the petitioners are expressing in view of the national trauma caused by Amir by means of the political murder that he committed. But this feeling cannot dictate an outcome that is inconsistent with the basic principles of our legal system. According to these principles, which my colleague discussed at length in her opinion, the punishment to which Amir was sentenced, according to which he was removed from society and imprisoned behind bars for life, does not inherently deprive him of the right to parenthood. Therefore, we can find no unreasonableness in the decision of the Israel Prison Service to allow the transfer of the sperm (subject to the restrictions stipulated in the decision), in order to give Amir a chance to realize his right to parenthood by means of artificial insemination.

 

 

Justice S. Joubran

1.            I agree with the opinion of my colleague Justice A. Procaccia and the reasons that appear in her profound and comprehensive opinion. Notwithstanding, in view of the complexity of the question before us, I think it right to add several remarks of my own, if only in order to present the difficulties raised in this case from a different and additional viewpoint.

2.            From time to time the court is asked to consider petitions concerning the conditions of imprisonment and the various restrictions that are imposed on prisoners who are serving sentences in the prisons. On a theoretical level, these petitions involve complex questions concerning the purpose of the sanction of imprisonment. In this context, it is possible to identify two main approaches that conflict with one another. According to one approach (hereafter — the first approach), the purpose of imprisonment is limited to depriving the prisoner of his personal liberty, by restricting his freedom of movement when imprisoning him behind bars for the period of imprisonment to which he has been sentenced. According to this approach, restricting any other rights of the prisoner is not a part of the sentencing purpose. In this regard it makes no difference whether we are dealing with rights whose violation is a consequence of the restriction of the liberty because of the fact that the ability to realize them depends upon the freedom of movement, or we are dealing with rights that are being violated in order to achieve other public purposes, including ensuring the proper management of the prison service, security considerations and other legitimate public interests (see para. 14 of the opinion of my colleague Justice A. Procaccia).

3.            According to the other approach (hereafter — the second approach), a restriction of additional basic rights of a prisoner, apart from the right to personal liberty, will be possible if this is consistent with the additional legitimate purposes underlying the objective of the sentence, including the removal of the prisoner from society, the suppression of crime, (specific or general) deterrence, a denunciation of the offender and punishment (with regard to these reasons, see the memorandum of the draft Penal (Amendment — Incorporation of Discretion in Sentencing) Law, 5765-2005, which is based on the opinion of the committee chaired by Justice Emeritus E. Goldberg; an expression of the second approach can be found in the majority opinion in the judgment in Gerber v. Hickman [61], which is mentioned on page 33 of my colleague’s opinion). In other words, according to this approach, the purpose of the sentence of imprisonment that is imposed on the prisoner is not limited to sending him to prison in itself, and the restriction of the prisoner’s freedom of movement, together with the other violations of his rights that accompany it, do not express the full sentence that is imposed on him.

4.            It is not superfluous to point out that the distinction between the aforesaid two approaches is not merely a matter of semantics but a difference that goes to the heart of the purpose of sentencing. Thus it may be asked most forcefully why sentencing should only take the form of a denial of the prisoner’s liberty and freedom of movement and not a restriction of other rights. It should be emphasized that the distinction between the different approaches has major ramifications on the scope of the protection given to the rights of the prisoner. Thus it is not difficult to see that whereas the first approach results in a restriction of the violation of the prisoner’s basic rights, the second approach actually extends the possibilities of violating them. To a large extent it can be said that the approach that the sanction of imprisonment should realize the various purposes underlying the sanction, including punishment and deterrence, leads to an approach that holds that the mere restriction of the freedom of movement does not exhaust, in every case, the sentence that is imposed on the prisoner. According to this approach, imprisonment should fully reflect the society’s abhorrence at the acts that the prisoner committed and the severity with which society regards them. In this way, not only is the prisoner placed behind bars for his acts, but his imprisonment should reflect, in all its aspects, his isolation and removal from society.

5.            The difference between the aforesaid two approaches may easily be clarified by giving several examples: serving a prison sentence within the confines of a prison inherently results in a violation of the prisoner’s right to engage in an occupation, since he is subject to various restrictions that deprive him of the possibility of leaving the prison confines. But consider, for example, a case in which a prisoner, who committed crimes that gave rise to public outrage, wishes to publish, from the prison, a novel that he has written, which is based on the story of his personal life. Assuming that the writing of the book during the prisoner’s free time does not interfere with the proper functioning of the prison and does not affect the maintenance of order and discipline in the prison, according to the first approach the prisoner should not be prevented from publishing the book, by which means he realizes his right to the freedom of expression and the freedom of occupation. In parenthesis I will point out that the need to examine the writings of the prisoner and to ensure that they do not include details that may affect order and discipline in the prison may impose a significant burden on the prison service so that it will be justified in refusing publication of the book (see and cf. Golan v. Prisons Service [15], at pp. 165-166 {524-527}). In any case, it should be noted that according to the second approach it is possible that the publication of the book may be prevented for very different reasons. It may be argued that the purposes underlying the sentence of imprisonment, including punishment, expressing revulsion at the acts of the prisoner and isolating him from society, justify not allowing that prisoner, while he is in prison and before he has finished serving his sentence, to derive an economic benefit from the commission of his despicable acts or achieving public recognition as a result of the publication of the book.

Another interesting example concerns the question of the rights of a prisoner to participate in elections to the Knesset. Whereas according to the first approach there is no basis for restricting the right of a prisoner to vote, as long as this does not harm the proper management of the prison, according to the second approach it is possible to regard the refusal of the right to vote as a measure that reflects the purpose of isolating the prisoner from society, which derives from the idea that there is no reason to allow a prisoner who has been removed from society for a certain period to influence the shaping of its system of government and other aspects of society. This is the place to point out that, in Israel, the arrangement that allows prisoners to realize their right to vote is enshrined in legislation (see s. 116 of the Knesset Elections Law, 5729-1969; HCJ 337/84 Hukma v. Minister of Interior [26]; Golan v. Prisons Service [15], at pp. 158-159 {514-516}).

The same applies to the restrictions imposed on the prisoner’s ability to have contact with members of his family and with additional persons outside the prison, whether by means of visits to the prison or by sending letters or making telephone calls. It may be argued that the aforesaid restrictions were not only imposed because of the need to prevent a disruption to the running of the prison but they were also intended to realize the purpose of removing and isolating the prisoner from society.

6.            Several different variables may increase the disparity between the aforesaid two approaches. One of these variables concerns the seriousness of the offence that the prisoner committed. Thus, for example, according to the second approach, the more serious the offence, the greater the degree of revulsion that the public feels towards the acts of the prisoner, and this should be reflected to a more significant degree in his sentence. This can be done, inter alia, by preventing him from benefitting from additional rights that he would have had, were he a free man.

7.            It can be said that the petitioners’ arguments are based to a large extent on the second approach. According to what is alleged in the petition, when considering a request of someone who committed such a despicable and serious offence as the second respondent to be allowed to have children, the competent authority should take into account considerations that go beyond the effects of the application on the mere ability to keep him behind bars, and it should also balance the violation of his rights against the principles of punishment and deterrence that underlie his sentence. Thus they request that the administrative authority should also take into account the profound feelings of abhorrence that the citizens of the state feel towards his despicable acts, when it decides whether there are grounds for allowing the artificial insemination of his spouse. It follows from this, the petitioners seek to argue, that someone who committed such a serious act against the Israeli public should not be allowed to realize his right to have a family.

8.            But as my colleagues say in their opinions, the path that the petitioners seek to follow is not the path of the Israeli legal system. It is the first approach presented above that has established over the years a firm basis in our case law. The remarks of this court in Golan v. Prisons Service [15], which are cited in the opinion of my colleague Justice A. Procaccia, are pertinent in this regard:

‘The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison’ (ibid., at p. 152 {502}; see also the references cited there).

Or as my colleague expressed so well in her own words:

‘It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their purpose is not to increase of the severity of the sentence that was handed down to the prisoner as a goal in itself. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts’ (para. 14 of the opinion of Justice A. Procaccia).

9.            Admittedly it is possible to find instances in Israeli case law in which it appears that a prisoner’s rights were in practice denied as a part of his punishment. In this regard, the following examples can be mentioned: the refusal of a prison governor to allow a prisoner to have use of a ‘sex doll’ in order to release his tensions and as a substitute for having marital relations (LHCJA 4338/95 Hazan v. Israel Prison Service [20]); a refusal to allow a book that was held to contain inflammatory and inciting content into a prison (HCJ 543/76 Frankel v. Prisons Service [42]); a decision not to allow prisoners on a hunger strike salt and milk powder and to remove these products from their cells, where it was held that the right to allow a prisoner to participate in a hunger strike is not one of the rights granted to him when he is in prison (HCJ 7837/04 Borgal v. Israel Prison Service [43]); a prohibition against security prisoners having radio receivers (HCJ 96/80 Almabi v. Israel Prison Service [44]). Naturally it is possible to point to many more examples, but for the sake of brevity I will not mention them. But it is important to note that all of these cases concerned a restriction of the prisoner’s rights that derived from the principle that his punishment was exhausted by his being placed behind bars, and any additional restriction was intended to serve the needs of the imprisonment only. Thus, in all the examples that were mentioned above, the restriction of the additional rights was made in order to ensure the proper running of the prison and the disciplinary and security arrangements in the prison. Notwithstanding, in order that these case law rulings with regard to the importance of preserving the human rights of the prisoner do not become empty words, the court should ensure that the Israel Prisons Service does not make improper use of its power to ensure the proper functioning of the prison as a means of restricting additional rights of prisoners, even where this is not necessary. The remarks of Justice H. Cohn in HCJ 144/74 Livneh v. Prisons Service [45] are pertinent in this regard:

‘Many evils that are a necessary part of prison life are added to the loss of liberty. But we should not add to the necessary evils that cannot be prevented any restrictions and violations for which there is no need or justification. The powers granted to prison governors to maintain order and discipline need to be very broad; but the broader the power, the greater the temptation to use it unnecessarily and without any real justification.’

10. It is proper at this stage to make two additional points. First, it is possible to mention incidents that can perhaps be regarded as expressing the second approach. These are cases where certain aspects of the sentence of imprisonment reflect to some extent purposes that go beyond those concerning the restriction of liberty. Thus, for example, s. 9 of the Release from Imprisonment on Parole Law, 5761-2001, provides that among the considerations that should be taken into account when considering the question of the early release of a prisoner from imprisonment, there are considerations concerning the severity and type of the offence, the circumstances in which it was committed, its scope and consequences, and also considerations relating to the prisoner’s criminal record. Moreover, s. 10 of the same law states that:

‘In cases of special seriousness and circumstances in which the board is of the opinion that the parole of the prisoner will seriously harm the public, the legal system, law enforcement and the deterrence of others, when the severity of the offence, its circumstances and the sentence handed down to the prisoner are unreasonably disproportionate to the term of imprisonment that the prisoner will actually serve if he is released on parole, the board may also take these factors into account in its decision.’

Another example of this can be found in the duty imposed on every prisoner to work in the course of the sentence of imprisonment imposed on him (s. 48 of the Penal Law, 5737-1977, together with s. 25 of the Prisons Ordinance [New Version] (hereafter — the ordinance)). According to what is stated in s. 56(30), if a prisoner refuses to work, this will lead to the sanctions listed in s. 58 of the ordinance. Thus, even though the rationale underlying this provision is a rationale that is intended to rehabilitate the prisoner, it does involve a conflict with his freedom of choice.

Notwithstanding, it is important to point out that in all of these examples and others, the violation of the prisoner’s rights in addition to his actually being held in prison is enshrined in a specific provision of statute (see for example Golan v. Prisons Service [15], at p. 152 {502}). The position is different when the Prison Service Commissioner wishes to violate additional rights that are not inherent to the loss of liberty without such a power being given to him expressly in statute.

11. Second, there is an additional category of cases in which the gravity of the offence or the fact that a prisoner has not expressed regret for his actions would appear to have an effect on the scope of the violation of rights that is not necessarily inherent to the loss of liberty. Even though the circumstances relating to the severity of the offence do not constitute in themselves a justification for violating the rights of the prisoner, they are capable of indicating the risk presented by him, and consequently they are capable of justifying imposing additional restrictions that violate the basic rights given to him. Notwithstanding, it is important to note that this is not a continuation of the sentencing or an additional sentence resulting from these circumstances, but a violation that is incidental to the actual sentence of imprisonment (see and cf. LHCJA 5614/04 Amir v. Israel Prison Service [2]).

12. In conclusion, as I pointed out in my opening remarks, I agree with my colleagues that in the circumstances of the present case there was no reason to prevent the second respondent realizing his right to have children by means of artificial insemination. Notwithstanding, I saw fit to add these remarks, in order to try to focus upon the difficulty in the issue before us and to clarify why even when we are dealing with someone who committed one of the most abhorrent crimes in the history of our state, we are obliged to continue to adhere to the principles that lie at the heart of our legal outlook.

 

 

Petition denied.

17 Sivan 5766.

13 June 2006.

 

 

 

 

President D. Beinisch

I concur with the judgment of my colleague, Justice E. Hayut, and would like to briefly add my own comments in support of the conclusions elucidated in her opinion.

1.    First, it should be mentioned that in the initial stages of these judicial proceedings, the respondents were not opposed to handing over the protocols of the Investigation Committee and additional documents submitted to the Committee, without revealing the names of the witnesses or other identifying details (see e.g. the letter of Adv. Lin of 25 May 2004 to the University's attorneys, at the beginning of which she suggested the non-disclosure of the witnesses' names, as opposed to the contents of their testimony or their letters – Appendix 16 of Rs/1 of the respondents' response to the application for an interim order; see further, para. 17 of the Regional Labour Court's judgment and para. 9 of the  National Labour Court's judgment, from which it emerges that the respondents proposed deleting the names of witnesses from the material requested in order "to prevent prejudice to the interests of the parties").  In their response to the petition in this Court, the attorneys for the respondents similarly "agreed to the deletion of the names in the interest of striking a balance as is customary in this kind of case", despite their observation that the identity of the witnesses might be relevant in assessing the reasonability of the conclusions reached by the Investigation Committee (response to petition, paras. 303-304). At all events, it is undisputed that the respondents did not appeal against the National Labour Court's ruling that the names of the speakers and any other identifying detail were to be deleted from any protocols that had not yet been submitted for examination, and that the other documents would be submitted to the Regional Labour Court, which would decide on the deletion of details "liable to be prejudicial to persons who had no interest in the proceedings". Under these circumstances the question for us to decide is whether the University was entitled to refuse to disclose the contents of the protocols that had yet to be submitted for the respondents' inspection and the contents of the additional documents that were presented to the Investigation Committee, subject to the deletion of the witnesses’ names and other identifying details.

In this context it should also be mentioned that the University is not a "public authority" for purposes of the Freedom of Information Law, 5758-1998, and as such the provisions of that Law are not directly applicable to it, other than with respect to its financial management (see O.G 5766, 1050; also cf. per President Barak in Technion – Israeli Technological Institute v. Datz [36], p. 433, para. 15). Under these circumstances I concur with the finding of Justice Hayut, which was also accepted by Justice Naor, to the effect that we were not presented with a suitable factual-legal background for the purpose of determining whether the University is a hybrid body with the characteristics of a public body.  Bearing this in mind, the guiding assumption exclusively for purposes of this litigation, and without ruling on the matter, must be that the voluntary Investigation Committee established by the University does not have public characteristics for purposes of the respondents' application for the disclosure of documents, and therefore, the norms of public law should not be applied (see para. 17 of the judgment of Justice Hayut and para. 7 of Justice Naor's judgment).

2     For the reasons set out at length in the judgment of my colleague, Justice Hayut, I too am of the view that the protocols and other documents under discussion are relevant to the dispute between the parties in the Regional Labour Court, and that the University has not demonstrated any privilege that could prevent the disclosure of the material requested.

There is no real disagreement between the parties that no actual statutory privilege exists that is applicable under the circumstances of this case. The University's central argument was that a new case-law privilege should be recognized in order to protect the constitutional right to privacy of the witnesses who appeared before the Investigation Committee, and in view of the public interest in protecting the proper functioning of voluntary investigation committees in academic institutions.  On this matter, we have already held in previous cases that "[i]n civil litigation the rule is that the disclosure of any material relevant to the dispute being adjudicated by the court should be as broad as possible", and [therefore], "…only in special and exceptional cases will a privilege be recognized" (per Justice D. Dorner, Shimshon v. HaPoalim Bank Ltd. [25], at p. 193; per President A. Barak in Hadassah Medical Association v. Gilead [5], at para. 5). In the current circumstances, I share the view of my colleagues, Justice Hayut and Justice Naor, that the gravity of the damage to the occupation and dignity of the respondents, and the need to ensure a fair proceeding which enables them to effectively defend themselves from the allegations, mandates the disclosure of the contents of the protocols and other documents that were before the Investigation Committee.  This conclusion stands even under the assumption that the disclosure may cause damage – the extent of which is unclear - to the privacy of the witnesses and to the activities of voluntary, internal university investigation committees.

       Here it should be noted that we have not examined the requested documents, and we therefore agree that one cannot categorically rule out the possibility of the witnesses' privacy having been infringed as a result of the disclosure. Justice Hayut stated that "Prima facie… any disclosure of the information in a proceeding between the petitioner and the respondents in the Regional Labour Court infringes the privacy of the complainants and the witnesses to the extent that they received a promise of confidentiality restricting the scope of disclosure of information…". According to Justice Hayut, however, the extent of the damage is relatively limited, and it is not equivalent to the respondents’ right to a due process, a right which would be impaired without the disclosure of the protocols and the other requested documents (para. 21 of her judgment).  Justice Naor too noted that “since these testimonies are not before us, I am prepared to assume, for argument’s sake, that there was an infringement of privacy with respect to some of the complaints or testimony… Even assuming that there was a certain infringement of privacy, when balanced against the harm to the respondents, the respondents would seem to have the upper hand" (para. 4 of her judgment; emphasis at source – D.B).  In support of the above we would emphasize that in the current case the respondents do not oppose receiving material from which the names of witnesses and other identifying details have been deleted. This detracts from the force of the University’s claims concerning the infringement of the witnesses’ privacy resulting from the submission of the material, and its subsequent “chilling effect” on the activities of voluntary investigation committees. As such, in my view, even without having examined the material that the respondents wish to see, it may be said that the severity of the infringement to the witnesses’ privacy is mild, even if only because of the agreement not to reveal the witnesses’ names and other identifying details. Considering all the above, I too am of the opinion that the circumstances of this case do not warrant the non-disclosure of the requested material.

Further to the above, and without ruling on the matter, I would note that in my view one cannot rule out the possibility that in exceptional cases, the public interest might justify recognition of a case-law based privilege which would prevent the divulging of sources who testified before voluntary investigation committees, for example - committees charged with the investigation of matters in which there is a major public interest in receiving information, the non-disclosure of which is a condition for its submission, or the revealing of which may jeopardize the possibility of its continued receipt (see and compare to the arrangement prescribed in s. 9 (b)(7) of the Freedom of Information Law, 5758-1998).  Exceptional circumstances of this kind do not exist in the case before us. The University set up a voluntary Investigation Committee in order to examine difficulties that arose in the management of the Theatre Department from both the academic and administrative perspectives. Without detracting from the importance of this kind of committee as a tool for enhancing the quality of teaching and the streamlining of the support systems in academic institutions, it cannot be said that there is a critical public interest that supersedes the broad principle of disclosure, the reasons for which lie in the public welfare and the aspiration to expose the truth and do justice in the judicial process, and in the respondents’ personal interest in properly defending themselves against the damage to their occupation and their dignity.

3.    As to the contractual promise of confidentiality – the differences between Justice Hayut and Justice Naor in this respect do not appear to be substantive.  The assumption is that the Investigation Committee ought to have anticipated the possibility of its conclusions serving as the basis for measures taken against the respondents, and even that legal action may ensue. Bearing that in mind, both of my colleagues agree that the Investigation Committee was unauthorized to give the witnesses any absolute promise regarding the confidentiality of their testimonies which in the nature and scope would contradict the law governing the disclosure of documents; this is also the case in the absence of a critical, weighty public interest which could justify the recognition of a privilege by force of the very existence of a contractual promise of confidentiality,

As noted in para. 21 of Justice Hayut’s judgment, the University’s central argument against the disclosure of the requested material is based on the concern that the respondents would settle accounts with those who had testified against them.  Without expressing a view as to whether this concern is substantiated and justified on its own merits, it appears that from the University’s perspective the solution lies in the non-disclosure of the names and other identifying details of the witnesses, as distinct from the disclosure of the details of the testimony itself.   My view is that in the absence of any recognized privilege, as explained above, the most that the Investigation Committee could have promised the witnesses and complainants would have been to attempt  to avoid disclosure of their names or of any other identifying details – as distinct from the contents of their testimony.  This could be regarded as a promise of sorts to endeavor not to divulge the identities of the witnesses in the event of a legal proceeding, so as to encourage the cooperation of those giving information with the Committee, in accordance with the applicable statutory provisions (on the "obligation to make an effort” see and compare: CA 444/94 Orot Artists Representation  v. Atari [59], at para. 7).

In the circumstances of this case, the effort not to disclose the identity of the witnesses who appeared before the Committee bore fruit, because as stated, it was agreed, or at least the respondents were not opposed, that the material requested be examined without disclosure of the witnesses’ names. Absent that consent, the promise to “make the effort” may have been translated into an argument  on  the University’s part that it was initially necessary to ascertain whether the disclosure of the witnesses’ identity was essential to the respondents’ defense, in view of the infringement of the privacy of witnesses who were not party to the proceeding, and whose position on the disclosure of the material had not been heard (see and compare, in another context, AP 3542/04 Salas v. Salas [60], per Justice Proccaccia at para. 14, hearing an application for the disclosure of private material in the possession of a third party who was not a litigant in the proceeding). Either way, the University would have been left with the option of deciding whether to refrain from disclosing the witnesses’ identity by agreeing to accept the suit in the Labour Court (on this matter, see para. 6 of Justice Naor’s judgment).

Thus, as opposed to the ruling of the National Labour Court, my view is that the absence of privilege does not mean that the Investigation Committee was not permitted to make any promise regarding the disclosure of the testimonies given before it. At the same time, the nature and extent of such a promise must derive from the statutory conditions applicable to the matter. On the face of it, I think that in these specific circumstances the promise given by the Investigation Committee was not, in essence, violated, in view of the decision that the material would be given to the respondents without revealing the witnesses’ names. However, the contractual relationship between the Investigation Committee and the witnesses who appeared before it is not the subject of this case, and I therefore see no reason to decide on the matter.

I therefore concur in the judgment of Justice Hayut. I would add that any disputes arising between the parties relating to the practicalities of the deletion of witnesses names and other identifying details from the protocols before their submission to the respondents - should be resolved before the Regional Labour Court.

Petition denied.

9 Iyyar 5768.

14 May 2008.

 

In the Supreme Court

CrimApp 10697/05

 

 

Before:  The honourable Justice E. Rubinstein

 

 

The appellant:      Abdul Azbarga

 

                v.

 

The respondent:  State of Israel

 

 

                Appeal of the decision of the Tel-Aviv-Jaffa District Court in MApp 93362/05 (SFC 1145/05) that was given on 7 November 2005 by Justice Noga Ohad

 

For the appellant:                Adv. Moshe Meroz

 

For the respondent:            Adv. Maya Hadad

 

 

Decision

 

1.             This is an appeal of the decision of the Tel-Aviv-Jaffa District Court (Justice Ohad) of 7 November 2005 in MApp 93362/05 (SFC 1145/05), in which the appellant’s application to be allowed out of the house arrest to which he is subject, on a daily basis at fixed times, in order to participate in daily prayers at the mosque of the town of Qalansuwa, was denied.

 

2.             (a)           On 5 September 2005, an indictment was filed against the appellant in the Tel-Aviv-Jaffa District Court, which attributes to him an offence of attempted murder under ss. 305(1) and 29(a) of the Penal Law, 5737-1977.

 

                (b)           According to what is alleged in the indictment, on the afternoon of 2 August 2005, the appellant and a relative of his, Ahmad Azbarga, entered the garage of the Alwahwah brothers in Lod. Each of them carried a hand-gun. Ahmad and the appellant approached Guptan Alwahwah, the appellant cocked his gun and Ahmad shot him in the chest. As a result of the shooting, Guptan lost consciousness and was rushed to hospital in critical condition, suffering from a torn diaphragm, several puncture wounds in the intestine and additional wounds. This happened following a fight that broke out the previous day between the Azbarga family and the Alwahwah family as a result of suspicions that arose that the borrowed car that a member of the Azbarga family brought into the garage of the Alwahwah brothers for a paint job on the occasion of a family wedding was a ‘fake.’ In the course of the fight, the windscreen of the car was smashed and another car in the garage was damaged, following which the appellant said that ‘he would turn the wedding of the Azbarga family into a funeral for the Alwahwah family.’

 

                (c)           When the indictment was filed, the state applied for the appellant to be held under arrest until the proceedings were concluded. On 20 September 2005, the District Court in MApp 93050/05 (per Justice Rozen) denied the application and ordered the appellant to be placed under house arrest on the following conditions: a personal guarantee of a third party in a sum of NIS 250,000, a cash deposit or bank guarantee in a sum of NIS 20,000, complete house arrest at a distance of no less than 30 kilometres from the city of Lod with supervisors who would give a guarantee of NIS 250,000, and a stop order preventing the appellant from leaving the country. The reason given for the decision was that there was prima facie evidence and a ground to hold the appellant under arrest, but the strength of the prima facie evidence was not great.

 

                (d)           The appellant filed an application for a review in the District Court, in which he requested that he should be allowed to go out to pray five times a day at the mosque situated at a distance of approximately 200 metres from the place of the house arrest in Qalansuwa. During the oral hearing, the application was changed to twice a day. On 7 November 2005, the court denied the application. It held that the application had no merit in view of the short time that had passed since the decision regarding the house arrest was given. It was also determined that the state’s consent to allow the appellant to go to pray at the mosque twice a day during the month of Ramadan did not necessarily mean that going out to pray should be allowed on ordinary days, since the permission to go to pray during Ramadan was allowed in order not to discriminate against the appellant in relation to another defendant, a member of the Jewish faith, who was allowed to go to prayers during the Jewish festival season.

 

3.             In the current appeal, it is argued that the appellant is a sheikh, who is very particular about observing the precepts of his religion, including, as aforesaid, praying in a mosque. It was also stated that the mosque of the town of Qalansuwa was approximately 300 metres away from the house where the appellant was under house arrest, that the appellant would go solely to the mosque, and that during the prayers the appellant would be accompanied by the supervisor that gave the guarantee. It was also argued that the appellant was a young man without any criminal record, and that he was summoned for interrogation only approximately a month after the event described in the indictment, during which he was free, and he has been under house arrest for two months. It was argued that the appellant was allowed out for prayers during the month of Ramadan, during which he did not infringe the conditions, and therefore he was deserving of trust. It was also argued that prohibiting his going to prayers in the mosque was inconsistent with upholding the appellant’s constitutional right to freedom of religion and worship.

 

4.             (a)           During the hearing, counsel for the appellant pointed out that we are speaking of prayers between 5:00 and 6:00 in the morning, and between approximately 4:50 and 6:30 in the evening, and on Friday also at midday. According to the appellant, where there is a mosque, there is a religious obligation to pray at the mosque.

 

                (b)           Counsel for the state emphasized that a review requires a change of circumstances, and there is none. Moreover, it was difficult to supervise the appellant’s compliance with the conditions of the house arrest, and the question is one of balance: during Ramadan the appellant was allowed out in view of the importance of the period and in order not to discriminate against him.

 

                (c)           After the hearing, counsel for the appellant submitted references to cases in which Jews and Muslims were allowed to go to prayers. The respondent replied that each case should be examined according to its circumstances. The danger presented by the appellant was an established fact and no change had taken place in this regard. Therefore the possibility of going to prayers undermined the ability to supervise him.

 

5.             (a)           For the purpose of the decision I have studied certain material in order to understand the relevant religious requirements, in so far as I have able to do so. Since the relevant comparison, which counsel for the appellant also addressed, is an application to allow Jewish defendants under house arrest to go to participate in prayers at the synagogue, I have also studied the Jewish sources. It is self-evident — but I nonetheless emphasize the point —that in my remarks below I am not purporting to make any religious law ruling, either with regard to Jewish law or with regard to Islamic law.

 

                (b)           With regard to Islam law, praying (sallat) five times a day, while facing Mecca, is one of the five basic precepts of the religion, which are called the pillars (arkan) of Islam. The others are belief with regard to the unity of God and his emissary, the prophet Mohammed, charity, fasting and the pilgrimage to Mecca. Prayer can be done on one’s own and in any place; see Ibn Rushd, The Distinguished Jurist’s Primer (Prof. I.A.K. Nyazee (tr.)), at p. 129, according to which any clean place is suitable for prayer, but not unclean places such as cemeteries, slaughterhouses, a public bathhouse, etc.). See also H. Lazarus-Yaffe, Chapters in the History of the Arabs and Islam (Heb.), at p. 94: ‘The daily prayers and additional voluntary prayers… may be performed by any Muslim where he chooses, although praying in a mosque is always preferable.’ In other words, it is possible to pray anywhere, at home or outside the home, but Muslims are recommended to pray at a mosque if it is possible in the circumstances. With regard to the duty of prayer itself, see the Qur’an, surah (chapter) 2 (The Calf), verse 238: ‘Guard strictly your (habit of) prayers, especially the Middle Prayer; and stand before Allah in a devout (frame of mind)’; surah 4 (Women), verses 102-104; surah 30 (The Romans, The Byzantines), verses 17-18: ‘So (give) glory to Allah, when ye reach eventide and when ye rise in the morning; Yea, to Him be praise, in the heavens and on earth; and in the late afternoon and when the day begins to decline’ (Yusuf Ali translation). The total number of prayers is determined by tradition. By contrast, the Friday midday prayer is a prayer that is required to be said as a rule in a mosque, led by an imam if possible, and it also involves a sermon (khutbah) (see Encyclopaedia of Islam, vol. 8 (fifth edition), ‘Sallat’ (Prayer), 930, at p. 932; Hebrew Encyclopaedia (Heb.), vol. 4, ‘Islam,’ (by M.M. Plessner), at pp. 954, 972-975; H. Lammans, Islam, at p. 45); the source in the Qur’an for Friday prayers is surah 62 (The Congregation, Friday), verse 9: ‘O ye who believe! When the call is proclaimed to prayer on Friday (the Day of Assembly), hasten earnestly to the Remembrance of Allah, and leave off business (and traffic): That is best for you if ye but knew!’

 

                (c)           With regard to Jewish law, according to Maimonides (Mishneh Torah, Hilechot Tefilla (Laws of Prayer) 1, 1), prayer is in itself a positive commandment:

‘It is a positive commandment to pray each day, as the Torah says: “And you shall worship the Lord your God” (Exodus 23, 25). By oral tradition it has been taught that this worship is prayer, as the Torah says: “… and to worship Him with all your heart” (Deuteronomy 11, 13). The Sages said: “What worship is done with the heart? Prayer.” And there is no number of prayers according to the Torah, nor is the format of this prayer stipulated in the Torah, nor does prayer have a fixed time according to the Torah.’

 

                The laws that follow this describe in detail the rabbinical enactments with regard to the number and times of the prayers. See also Maimonides, Book of Commandments, positive commandment no. 5, which also bases these remarks on the verse ‘… and Him you shall worship…’ (Deuteronomy 13, 5), and he also says (Mishneh Torah, Hilechot Tefilla (Laws of Prayer) 8, 1):

‘The prayer of a congregation is always heard, and even if its includes sinners, the Holy One Blessed be He does not reject congregational prayer. Therefore a person should join with the congregation, and he should not pray individually whenever he can pray with the congregation, and a person should always go in the morning and the evening to the synagogue, since an individual’s prayer is not heard at all times unless it is in the synagogue, and anyone who has a synagogue in his town and does not pray in it with the congregation is called a bad neighbour.’

                Rabbi Yosef Karo states in Shukhan Aruch, Orach Hayim 90, 9:

‘A person should endeavour to pray in the synagogue with the congregation, and if he is prevented and is unable to go to the synagogue, he should seek to pray at the time when the congregation is praying (Comment of Rabbi Moshe Isserlis (Rama): “And that is the law for persons who live in places where they do not have ten men: they should nonetheless pray in the morning and the evening at the time when congregational prayer is held”) and also if a person is prevented from praying at the time when the congregation prays and he prays individually, he should nonetheless pray in the synagogue.’

                Rabbi Yisrael Meir HaCohen (Kagan) in Mishnah Brura (Commentary on Shulhan Aruch, Orach Hayim 90, 9), explains the word ‘endeavour’ as follows: ‘And even if he has ten men in his home, he should endeavour [to pray] in the synagogue…’ and why ‘with the congregation? Because the Holy One Blessed be He does not reject congregational prayer…’. He goes on to point out there: ‘It is written in a responsum of Rabbi David ben Shelomo Ibn Abi Zimra (Radbaz) that if a prisoner is given permission by the ruler to pray on one day of his choice with the congregation, he should pray on that day immediately and should not postpone fulfilling the obligation (of praying with the congregation) until Yom Kippur or Purim…’.

                Thus we see that the obligation to pray in a synagogue — which appears as a normative part of Jewish law — is defined as something that one should endeavour to do. Here we should point out that there are parts of the prayers that can only take place when ten men are present (even if not in the synagogue), such as the Kaddish, Kedusha, the reading of the Torah and the priestly blessing. On the subject of communal prayer and its importance, see Rabbi A.I. Kook, Olat Re’iyah, 1, 261, which is cited in Rabbi M.Z. Nerya, ‘Orot HaTefilla,’ in Siach Yitzhak in memory of Yitzhak Lavi (Rabbi Y. Shaviv, ed.), at pp. 147, 230. I should also add that within the framework of the balances between conflicting interests, even though there is usually a possibility of communal prayer in Israeli prisons, a rabbinical court may deny a prisoner this possibility under s. 6 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, which makes it possible to compel the giving of a divorce bill (Get) by means of imprisonment (see also s. 7, which allows a person to be compelled to perform levirate divorce (Halitza)), by virtue of s. 3A of the Rabbinical Courts (Compliance with Divorce Judgments) Law, 5755-1995.

 

(d)           The freedom of worship is one of the basic values of the State of Israel as a Jewish and democratic state, and it is one of the principles listed in the Declaration of Independence (‘The State of Israel shall guarantee… freedom of religion…’) (see the discussion of its status in HCJ 1890/03 Bethlehem Municipality v. State of Israel [2005] IsrSC 59(4) 736; [2005] (1) IsrLR 98, at paras. 12-16, per Justice Beinisch, and the references cited there, including with regard to a conflict of rights, as well as the freedom of worship and the freedom of movement; see also HCJ 10356/02 Hass v. IDF Commander in West Bank [2004] IsrSC 58(3) 443; [2004] IsrLR 53, per Justice Procaccia). There are those who regard the freedom of worship as also falling within the scope of respect for rights under the Basic Law: Human Dignity and Liberty (see A. Barak, Legal Interpretation: Constitutional Interpretation (Heb.), at p. 430). It need not be said that this right of freedom of worship may conflict, and in the case of arrest or imprisonment it does conflict, with the provisions of the law concerning arrest or imprisonment (see s. 5 of the Basic Law: Human Liberty and Dignity). In such cases a balance needs to be reached on the basis of the specific circumstances, common sense and experience.

 

(e)           Matters of well-established and well-respected religious custom often come before the courts in Israel and elsewhere, and the question in this case is one of the proper balance between the right to communal prayer, even if its religious status is essentially and mostly that of a desirable practice, and the constraints of arrest. Obviously there is a difference, which does not need to be considered here, between compelling someone — Heaven forbid — to transgress a religious precept of a kind where ‘it is preferable to be killed rather than to transgress,’ on the one hand, and not allowing him to observe a desirable practice, on the other.

 

(f)            Approximately twenty years ago, the United States Supreme Court decided the case of Goldman v. Weinberger, 475 U.S. 503. In that case, an officer in the United States Air Force, an orthodox Jew, applied to be allowed to wear a skullcap in his unit’s facility on the ground that his constitutional rights (under the First Amendment of the United States Constitution, which guarantees the freedom of worship) were being violated by the Air Force Regulations that prohibited this. Indeed, the skullcap (a head covering has been a well-established practice for many generations among orthodox Jews) was presented by the petitioner there as a ‘silent devotion akin to prayer.’ The court decided, by a majority of five to four, against the skullcap (the law was subsequently amended to allow the wearing of the skullcap).

 

(g)           I have studied each of the collection of decisions on questions of prayer during house arrest that was presented by counsel for the appellant. They range from judicial decisions of every judicial instance that approved communal prayer at all prayer times, both for Jews and for Muslims, and decisions that approved certain times only. The background and the circumstances in these decisions vary from cases involving the disengagement from the Gaza Strip to cases in the ‘classic’ criminal sphere, such as assaults, indecency, etc.. There are also cases in which permission for communal prayer has been rescinded after it was given; there is a case of administrative house arrest in which the petitioner was not allowed in the circumstances of the case to leave the place of house arrest, but it was held that people could come to constitute a quorum of ten men (minyan) in the place where the petitioner was under house arrest (HCJ 5555/05 Federman v. Central District Commander (unreported)).

 

(h)           In my opinion, ultimately the attitude towards applications to be allowed to participate in communal prayers while under house arrest, both for Jews and for Muslims (the existing examples), as well as for members of other religious communities in accordance with what is accepted in their religions, should be one that inclines towards granting the application, where circumstances allow. However, every case should be considered on its own merits, and naturally there may be cases in which it will not be allowed. The court should consider — and this is what the courts do consider, to the best of my understanding, in such cases — the balance between the grounds for arrest in the law, such as the danger presented by the person under arrest, perverting the course of justice and fleeing from justice, on the one hand, and the desire to pray with the community, on the other. Each of these grounds should be examined, as well as the guarantors and the manner of carrying out supervision in cases that the court decides to approve.

 

(i)            In the present case, I have reached the conclusion that at this time it is possible to accommodate the appellant to some extent, and in this sense the appeal is allowed in part. Approximately two and a half months have passed since the arrest decision, and in the meantime the appellant has gone out twice a day to prayers during the month of Ramadan, and there is no report of his having breached that trust. I have taken into account the danger that he presents, as can be seen prima facie from the offence, but also the approach that was adopted in his case during Ramadan, and also, as aforesaid, in other cases. I have decided at this time to allow a two-stage arrangement: starting this Friday, 9 December 2005, the appellant may go to pray each Friday at the mosque. In so far as the arrangement is observed and there are no other breaches, and if he is still under house arrest, then from the beginning of March 2006 he may go to one prayer each day, which is the morning prayer between the hours of five and six in the morning, on each day apart from Friday, when he may go to the midday prayer. The mosque will be the closest one to the place of the house arrest; the appellant will be accompanied on each occasion by the supervisor, he will go directly to the mosque and will return directly from the prayer without delay. The guarantees that applied during the month of Ramadan when he was allowed out to go to pray will also apply here and compliance with them will be ensured. The other conditions of the house arrest will remain unchanged.

 

Given today, 5 Kislev 5765 (6 December 2005).

 

 

 

 

CA(L) 9041/05

 

 

Applicant:              "Imrei Chayim" registered society

 

 

v.

 

 

Respondents:                                       1.             Aharon Wisel

2.             Yoel Krois

3.             Bella Krois

 

The Supreme Court

 

Before Registrar Y. Mersel

 

 

 

For applicant: Benyamin Schorr

 

For respondents:  Naor Mor

 

For the Attorney General:  Michal Sharvit

 

DECISION

 

1.             The District Court annulled an arbitration award.  A party wishes to appeal that decision in this Court.  Section 38 of the Arbitration Law, 5728-1968 (hereinafter: the arbitration law) determines that a decision made pursuant to that law can be appealed by permission.  The party argues before the Registrar of the Court that the appeal should be heard, despite that, as an appeal as of right, since section 17 of Basic Law: Judicature (hereinafter: the basic law) determines that "a judgment of a court of the first instance can be appealed as of right, excepting a judgment of the Supreme Court", and in any case – so it is argued – section 38 of the arbitration law is unconstitutional.  In light of these provisions, should it be determined that a party, wishing to appeal a decision pursuant to the arbitration law that was given by the District Court, has the right to appeal to this Court pursuant to the basic law, whereas that is a right that trumps section 38 of the arbitration law, and even leads to its unconstitutionality?  That is the question before me.

 

The Facts and Procedural Stance

 

2.             The Rabbinical Court gave an arbitration award.  Respondents submitted an application to the District Court to annul it.  In a judgment of July 7 2005, the District Court decided to annul the arbitration award.  On August 18 2005 applicant submitted an application for an extension to submit an appeal to this Court (CApp 7798/05).  The main reason for the application was that it was unclear, in its opinion, whether appeal of the District Court's judgment in this case is an appeal as of right, despite the provision of section 38 of the arbitration law, and in light of the constitutional provision regarding the existence of the right to appeal, as provided in section 17 of the basic law.  In my decision of August 21 2005 I rejected the application for an extension, stating: "the extension is requested in order to decide the categorization of the proceeding.  In that situation, the proper way is for applicant to timely submit the proceeding determined by law – application for permission to appeal, after which its application to categorize the proceeding as an appeal as of right in light of section 17 of Basic Law: Judicature, and not as an appeal by permission, will be heard on its merits.  That is so, inter alia, in light of the presumption of the constitutionality of the statutory provision whose constitutionality is doubted by applicant".  After that decision, this proceeding was submitted, and registered as an application for permission to appeal (on September 22 2005).  In its arguments, applicant repeated its argument that the appeal should be heard as an appeal as of right, and not as an appeal by permission, due to the reason stated above.  Respondents were asked to respond to that argument of the applicant, and that they did.  The Attorney General also announced that he is appearing in the proceeding, and submitted his position in the case.

 

The Arguments of the Parties

 

3.             Applicant argues, in the application for permission to appeal, that it may appeal the District Court's judgment as of right, by force of section 17 of the basic law.  This constitutional provision is normatively superior to the provision in section 38 of the arbitration law, which determines appeal by way of permission only.  In light of the contradiction between the provisions in the two sections, applicant's conclusion is that section 38 of the arbitration law should be declared void, and that it should be determined that appeals of decisions pursuant to the arbitration law be heard solely as appeals as of right.  Even if the objective of section 38 is proper, section 17 of the basic law does not have a limitations clause, and in any case there is no way to determine that section 38 of the arbitration law contradicts section 17 of the basic law constitutionally.  Applicant further argues that although section 17 of the basic law limits the right of appeal to cases in which the appeal is of a judgment given by the first instance, a decision to annul an arbitration award should be seen, for the purposes of this question, as a judgment given by the first instance, and not as the decision of an appellate instance.  The conclusion, according to applicant, is that this proceeding should be heard as an appeal as of right.

 

 

4.             Respondents, in their response, requested that the applicant's position be rejected, and that it be determined that this proceeding should be heard as an appeal by permission, as provided in section 38 of the arbitration law.  According to respondents, well established precedent determines that the right to appeal is not a substantive constitutional right, rather a right that exists only by statutory provision.  Furthermore, the provision in section 17 of the basic law should not be seen as of higher normative status than that in section 38 of the arbitration law, as the status of the basic law itself is that of a regular statute, as opposed to Basic Law: Human Dignity and Freedom, and Basic Law: Freedom of Occupation.  In addition, argue respondents, the determination in section 38 of the arbitration law, regarding limiting appeals of decisions pursuant to that law to appeals by permission only, is logical, and it has a social objective.  The institution known as arbitration was established in order to be a fast, comfortable and cheaper means for resolving disputes outside of the courtroom, and in any case, determining that there is appeal as of right of the decisions of the court on the matter is superfluous and frustrates the proceedings, and, further, a party who consents to arbitration consents, at the outset, to all its characteristics, including the law according to which appeals of judicial decisions on the matter will be appeals by permission only.  For these reasons, it was requested that appellant's position regarding the categorization of the proceeding be rejected, and that the hearing of this proceeding continue as an application for permission to appeal.

 

5.             The Attorney General was also of the opinion that applicant's argument regarding the constitutionality of section 38 of the arbitration law should not be accepted.  The main reason for that is the view that adjudicative decisions regarding arbitration are not "a judgment of a court of the first instance", which is the only kind that can be appealed as of right pursuant to section 17 of the basic law.  Litigation before an arbitrator should be seen as the first litigation between the parties, and the decisions of court regarding arbitration are not decisions of the first instance, and are not, according to section 17 of the basic law itself – subject to appeal as of right.  Thus, the constitutional provision in section 17 of the basic law is not contradicted by section 38 of the arbitration law, and the latter is thus constitutional.  It was further argued that in light of the purpose of arbitration, and the precedents determined over the years in many judgments, it is clear that the borders of judicial intervention in arbitration awards must be clearly defined and limited, and thus there is logic in the determination in section 38 of the arbitration law, by which appeal of the decisions of the court pursuant to the arbitration law are by permission only.  For these reasons, the Attorney General's position is that the provision of section 38 of the arbitration law is constitutional, and is valid, and, accordingly, that this proceeding should continue to be heard as an application for permission to appeal.

 

A Preliminary Hurdle

 

6.             Indeed, the proceeding before me is not routine, and it raises questions which are by no means simple. Prima facie, the decision is of a question that arises frequently before an appellate court – whether a certain proceeding should be heard as an appeal as of right or as an appeal by permission.  However, the argument in this case is different, as it is attached to a question which is much more significant – the question of the constitutionality of section 38 of the arbitration law.  Applicant requests not only incidental decision of the validity of a provision of a statute of the Knesset – by way of indirect attack – but also that such decision be made in the framework of the question of the categorization of a proceeding as an appeal by permission or as of right.  Indeed, the hurdle which applicant has placed in front of it is high, so high that I found it difficult to determine whether it lifted the burden upon it and that its arguments should be decided on the merits.  Indeed, this proceeding can raise the question of jurisdiction.  Even if this is an indirect attack of the constitutionality of a law, it is doubtful whether it is appropriate for the question of the validity of a law of the Knesset to be decided in a proceeding such as this one, regarding the categorization of a proceeding as an appeal by permission, or as of right.  For the reasons discussed below, mainly rejection of applicant's position, I found no need to determine hard and fast rules on that issue, and I leave it to future decision.  Moreover, it has already been decided, more than once, that an argument regarding the constitutionality of a statute is not a casual argument.  A statute benefits from the presumption of constitutionality, and thus, a party arguing unconstitutionality – even at the first stage of the very proof of the constitutional impingement – must lift the burden, and it is a significant burden indeed (see, e.g., HCJ 7111/95 The Local Government Center v. The Knesset, 50 PD (3) 485, 496).  For this reason, I was of the opinion that there was no cause for extension of the deadline for submitting the proceeding, and that it must be filed as an application for permission to appeal, and that  only afterward – if necessary – I would hear applicant's argument regarding the categorization of the proceeding (my decision in CApp 7798/05).  Indeed, applicant's arguments on this issue, both in the application for extension and in the application for permission to appeal, reveal that the arguments regarding the unconstitutionality of section 38 of the arbitration law were argued with insufficient basis.  Applicant did not clarify the scope of the right to appeal determined in section 17 of the basic law, or whether that right was indeed impinged upon by the provision in section 38 of the arbitration law.  The burden on this point is the applicant's, yet it did not lift it.  This burden has special weight in the circumstances of this case, in which what is being requested is in fact a deviation from many precedents of this Court and of other instances, in which it has been determined again and again that appeal of a decision pursuant to the arbitration law is by permission, and not as of right (see, e.g. CA 299/82 Mitler v. Yavna'i Ashdod Ltd., 39 PD (2) 470, 471-472; CA 107/84 Illit Ltd. v. Elco Electromechanic Manufacturing Ltd., 42 PD(1) 298, 301-302).  Prima facie, that reason would have been enough to lead to the complete rejection of applicant's position on the issue.  It is also problematic to raise that argument after the arbitration itself was carried out by force of an agreement made at the time that the law on this point was clear to the appellant as well.  Nevertheless, in light of the serious nature of the argument and the alleged lack of clarity on the issue, I shall also discuss applicant's argument on its merits.

 

The Constitutionality of Section 38 of the Arbitration Law

 

7.             Indeed, on the merits as well, and possibly beyond what is necessary for decision of this application, I will say that I found no basis for applicant's argument.  In my opinion, section 38 of the arbitration law withstands the constitutional standard stemming from section 17 of Basic Law: Judicature.  When an argument regarding the constitutionality of a law arises, the argument must be examined in a number of stages: first, examination whether an impingement, upon a right or a provision anchored in a basic law of normative supremacy over a regular statute, has indeed been proven.  Second, examination whether that impingement – assuming it exists – withstands the conditions determined by that basic law for contradiction of it, and thus whether it is a constitutionally justified impingement or not.  Third, if it is found that it is indeed an unconstitutional violation, the question of the appropriate relief in the circumstances of the case arises (see, e.g., HCJ 450/97 Tnufa Manpower and Maintenance v. The Minister of Labor, 52 PD (2) 433, 440-441).

 

Impingement upon a Constitutional Right: The Scope of the Right to Appeal

 

8.             Section 17 of Basic Law: Judicature determines, as noted above, that "a judgment of a court of the first instance can be appealed as of right, excepting a judgment of the Supreme Court".  What is to be derived from that provision regarding the existence of a constitutional right to appeal, and the scope of such a right?  The point of departure is that Basic Law: Judicature, in and of itself, has supreme normative status, like the other basic laws (see and compare: HCJ 212/03 Herut v. The Chairman of the Central Elections Committee, 57 PD (1) 750, 755-756; HCJ 3511/02 The "Forum for Coexistence in the Negev" Registered Society v. The Ministry of National Infrastructures, 57 PD (2) 102, 106; HCJ 2208/02 Salame v. The Minister of the Interior, 56 PD (5) 950; HCJ 8071/00 Ya'akobovitch v. The Attorney General (unpublished), and Aharon Barak, haMa'apecha haChukatit – Bar Mitzvah [The Constitutional Revolution – 12th Anniversary], 1 MISHPAT VA'ASAKIM [LAW AND BUSINESS] (5764) 3, 30-31).  Thus, the provision in section 17 of Basic Law: Judicature is a superstatutory constitutional provision.  Indeed, it was rightly stated that the entrenchment of the right to appeal in section 17 of Basic Law: Judicature led to the constitutional recognition of that right (see, e.g., CA 1946/01 The Fund for Care of Wards v. The Administrator General, 56 PD (3) 311, 318-319; CA(L) 9572/01 Dadon v. Weisberg, 56 PD (6) 918, 921; CA 8935/01 Friedman v. Nechushtan, (unpublished); see further CA(L) 7608/99 Lucky Bitsu'a Proyektim (Bniyah) 1989 Ltd. v. Mitzpe Kinneret (1995) Ltd, 66 PD (5) 156, 163, and references therein).

 

9.             Despite the constitutional recognition of the right to appeal, the force of that right, and its scope, are not sufficiently clear (see CHEMI BEN-NOON, HA'IR'UR HA'EZRACHI [CIVIL APPEAL] (2d ed. 2004) 61-64).  It has been determined more than once in caselaw that the right to appeal is not a natural right or a basic right like the other civil and human rights.  Although it is a substantive and not procedural right, when a statute does not grant it, it has no independent existence (see, e.g., CrimApp 3268/02 Kozli v. The State of Israel, 57 PD (2) 835, 843; HCJ 1520/04 Shalem v. The National Labor Court, 48 PD (3) 227, 232; HCJ 87/85 Arjoub v. The IDF Forces Headquarters, 42 PD (1) 353, 360-362).  It has even been seen as some as a "privilege" (HCJ 75/85 supra, Goldberg J. at p. 380).  Beside recognition of the institution of appeal as an important institution (see HCJ 87/85 supra, at p. 363), and the determination that between two interpretations, the interpretation granting the right to appeal should be preferred to that denying it (see CA 8838/02 Goldhammer v. The Haifa Municipality (unpublished)), it was also determined that "the normative status of the right of appeal in our system is not a simple question" (CrimA 111/99 Schwartz v. The State of Israel, 54 PD (2) 241, 271), and that great caution is to be employed in determining its status and scope (see, e.g., Shlomo Levin, Chok Yesod K'vod ha'Adam vaCheruto vaSidrei haDin ha'Ezrachi'im, 35 HAPRAKLIT (5756) 451, 463-464; see also CrimApp 3268/02 supra, at p. 843).  This ambivalence toward the right of appeal is not unique to Israeli law.  A comparative glance reveals that only in a limited number of legal systems is there a recognized constitutional right to appeal (see SHLOMO LEVIN, TORAT HAPROTSEDURA HA'EZRACHIT – MEVO V'IKRONOT YESOD [THE THEORY OF CIVIL PROCEDURE – INTRODUCTION AND BASIC PRINCIPLES] (1999) 32-33, and references therein; CrimA 111/99 supra, at p. 272).  Express constitutional recognition of the right to appeal exists, for example, in the Polish constitution (Article 78) and in the Slovenian constitution (Article 25).  Although in a number of additional countries the right to appeal is recognized in the constitution, that right is only the right of the accused to appeal to a higher instance in criminal proceedings which ended in conviction (see, e.g., the Russian constitution – Article 50(3); the Swiss constitution – Article 32(3)).  Nor is there full recognition of the right to appeal in international law, per se, rather, mostly, limited recognition of the right of an accused who has been convicted to have his case heard before a higher instance (see Article 14(5) of the International Covenant on Civil and Political Rights (1966); Article 2(1) of Protocol no. 7 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (of 1984)).  Furthermore, in the interpretation of Article 6(1) of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms that determines the right to a fair hearing, it has been determined that the member states have no duty to establish instances of appeal or to grant the right to appeal judgments of the first instance (see Tolstoy Miloslavsky v. The United Kingdom [1995] ECHR 25; ADRIAN ZUCKERMAN, CIVIL PROCEDURE (2003) 723-724; JACOBS & WHITE, THE EUROPEAN CONVENTION IN HUMAN RIGHTS (2nd Ed. 1996) 160; compare SERGE GUINCHARD, DROIT PROCESSUEL (2eme. ed. 2003) 498-450; HCJ 87/85 supra).

 

10.          Against that background, how should the essence of the "right of appeal" recognized in section 17 of Basic Law: Judicature be interpreted?  Does the basic law grant a party appeal as of right, as opposed to appeal by permission, of a judgment of the first instance?  The answer to that question is complex, and there are elements pulling in both directions.  In light of my conclusion below, according to which even if section 17 of the basic law has been contradicted, the contradiction is constitutionally justified, I am not required to decide the question of the essence of this "right of appeal" in section 17 of the basic law, and shall leave it for future decision.  I shall however add that the position presented by applicant, according to which section 17 of the basic law includes a party's right to appeal, as of right, every judgment of the first instance, raises questions which are not simple.  True, the language of section 17 of the basic law is clear, prima facie, and grants parties an appeal as of right (as opposed to appeal by permission).  However, constitutional provisions require interpretation with a wide view (see FH 13/60 The Attorney General v. Matane, 16 PD 430, 442).  There is a purposive-constitutional interpretation of the right of appeal in section 17 of the basic law that can lead to the conclusion that it is not to be seen as granting the individual appeal as of right, but rather the right of access to a higher instance.  The "right of appeal" in the basic law, according to such an interpretation, is but the right to bring the case before a higher instance, and not specifically by appeal as of right.  It is thus sufficient that a party be able to request that the appellate instance grant him permission to appeal.  Thus, a statutory provision granting a party appeal by permission to a higher instance – permission which is granted by the appellate instance – like section 38 of the arbitration law, realizes the constitutional right to appeal, and it should be seen as an "appeal as of right" for the purposes of section 17 of the basic law.  What are the reasons behind such a possible interpretation of section 17 of the basic law?

 

11.          Indeed, at the basis of this interpretational conclusion is the trend in the caselaw and literature referred to above, according to which extra caution should be employed regarding the scope of the right to appeal.  This trend is based upon the character of the right to appeal, as a right which is not a basic right.  It is in line with the partial and limited recognition of the constitutional right to appeal in comparative law.  Furthermore, such an interpretative conclusion can also be derived from the objectives behind the idea of appeal.  The institution of appeal is important, as it realizes a long list of important interests: it expresses fair adjudication; it reinforces the fairness and the reasonableness of the decisions of the first instance; it erects a mechanism for review and supervision of judgments of the first instance; it nurtures the public confidence in, and legitimacy granted to judgments; it leads to correction of mistakes (where there are mistakes) – and allows creation of uniform and clear precedents for various courts (see BEN-NOON supra, at p. 57; HCJ 87/85 supra, at pp. 362-363, 372-374; HCJ 1520/94 Shalem v. The National Labor Court, 48 PD (3) 227, 232).  In light of that, a possible conclusion is that the core of the right of appeal is not appeal as of right specifically, rather the ensuring of a party's access to the higher instance, which can hear the case again (see CA 7532/02 Nissim v. Hotsa'at Modi'in Ltd., 57 PD (1) 865, 869; compare CA(L) 1441/02 Perets v. Stern (unpublished); YORAM RABIN, ZCHUT HAGISHA LA'ERKA'OT KE'ZCHUT CHUKATIT (1988) 140, note 307).  According to that line of thinking, the issue of the right of appeal, and the question of the categorization of the proceeding as an appeal as of right or an appeal by permission, are not identical (HCJ 87/85 supra, at p. 372).  The right to a fair hearing does not necessarily require the existence of an appeal as of right specifically, and the question of the categorization of the appeal – as an appeal as of right or by permission – must be derived on the basis of other considerations, related to the specific proceeding at hand (see Fejde v. Sweden [1991] ECHR 43; X. v. Court of Cassation and Review of Criminal Cases (Switzerland, SUI-1998-s-001, 1997)(Reported in BULLETIN ON CONSTITUTIONAL CASE LAW no 2003(2)).  Furthermore, this interpretation of the basic law is possible and appropriate not only for these reasons, but also in light of the very problematic nature of applicant's position, according to which section 17 of the basic law specifically grants appeal as of right.  Indeed, it is accepted that between two interpretations, the one according to which the statute is constitutional is preferable to the one which leads to unconstitutionality (HCJ 9098/01 Genis v. The Ministry of Construction and Housing (yet unpublished); HCJ 4562/92 Zandberg v. The Broadcasting Authority, 50 PD (2) 793, 811).  The interpretation offered by applicant casts a constitutional shadow not only upon section 38 of the arbitration law under discussion in the case at hand, but also upon other provisions of law determining that appeal of judgments of the first instance is by permission (see, e.g., The Courts Law [consolidated version], 5744-1984, section 64; section 86(e) of the Knesset Elections Law [consolidated version], 5729-1969; section 62c of the Prisons Ordinance [new version], 5732-1971).  The interpretation according to which these provisions are constitutional is the one that should be preferred.

 

12.          However, as noted above, I am aware of the difficulties in that interpretation, both in light of the wording of the basic law, and possibly even in light of other of its possible objectives, including granting special weight to the right of appeal.  In light of my conclusion below, according to which the violation of the basic law – to the extent that it exists – is constitutional and justified, I should like, as mentioned above, to leave the question of the scope of section 17 of the basic law for future decision.

 

13.          It should be further noted that the conclusion regarding section 38 of the arbitration law's non-violation of section 17 of the basic law could, prima facie, have been based upon an additional component in the basic law: the determination that the right of appeal is granted regarding "a judgment of a court of the first instance".  Indeed, both respondents and the Attorney General argued before me that to the extent that we are dealing with judgments and decisions according to the arbitration law, they should not be seen as judgments of "the first instance", and that a differentiation should be made between judgments which essentially employ the appellate jurisdiction of the court, and judgments whose essence is employment of the original jurisdiction of the court (CA 439/88 The Registrar of Databases v. Ventura, 48 PD (3) 808, 814-815; CA 138/78 The Director of Customs and Excise v. A. A. L. Ltd., 33 PD (3) 490, 495).  Accordingly, litigation before an arbitrator should be seen as the first litigation between the parties, and the act performed by a court that hears arguments pursuant to the arbitration law should be seen as the act of a court employing jurisdiction of review of the proceeding.  True, there is much logic in this position, to the extent that it relates to the difference between a regular hearing that takes place before the court when it is the first to hear the dispute between the parties, and a hearing in which the court hears the dispute after an arbitration award.  However, this position is not devoid of problems regarding interpretation of section 17 of the basic law, as it seems that the objective of that provision is to provide an instance of review specifically of judgments of a court (except for the Supreme Court, as provided in the end of section 17 of the basic law), as opposed to other quasi-judicial bodies.  And, after all, it is Basic Law: Judicature that we are dealing with.  The interpretation offered by respondents and the Attorney General raises doubt regarding this objective of the right of appeal, if it allows determination that whenever the first court which dealt with the issue employed appellate jurisdiction – including appeal of a body which is not a court – a party has no opportunity to appeal its judgment as of right.  Therefore, the question how the term "first instance" in section 17 of the basic law should be interpreted is not simple, and, similar to my conclusion regarding the scope of the right, as determined above, in light of my conclusion that even if section 38 of the arbitration law contradicts section 17 of the basic law said contradiction is justified, I need not decide that issue and can leave it to future decision.  For this reason also, I did not see to allow applicant to supplement its arguments on this question (application of January 23 2006).

 

Justification of Impingement upon the Right to Appeal

 

14.          Even if there is substance to applicant's argument that section 38 of the arbitration law contradicts section 17 of the basic law, that does not, as mentioned above, conclude the constitutional examination.  The right to appeal is not an absolute right, rather a relative right which is to be balanced against other rights and interests (see CA(L) 7435/05 Segal v. United Mizrachi Bank Ltd. (unpublished)).  Even though the provision being examined is a superstatutory constitutional provision, that can not lead to the conclusion that it can under no circumstances be contradicted by a regular statute of lower normative status.  Indeed, a regular statute can contradict a provision of a basic law, subject to conditions which that basic law itself determines (see, e.g., section 8 of Basic Law: Human Dignity and Freedom; section 4 of Basic Law: Freedom of Occupation).  And what is the law if the basic law does not contain a provision like a limitations clause, regarding contradiction of it?  Applicant argued before me that in such a situation, there is no possibility of contradicting a provision of a basic law.  I cannot accept that position (see further and compare: Hillel Sommer, miYaldut la'Bagrut: Sugiot Ptuchot baYisuma shel haMa'apecha haChukatit [From Childhood to Maturity: Outstanding Issues in Implementation of the Constitutional Revolution], 1 MISHPAT VA'ASAKIM [LAW AND BUSINESS] (5764) 59, 62-65; Barak supra, at pp. 30-33; see also Ariel C. Bendor, Arba Ma'apechot Chukatiot? [Four Constitional [sic] Revolutions?], 6 MISHPAT U'MIMSHAL (5763) 305, 306-307).  In my opinion, the precedents on the issue are clear, and the conclusion that arises from them is that where there is no express limitations clause in a basic law, or another provision exhaustively arranging the possibilities of contradiction of a basic law by a regular statute, the provisions of the basic law can nonetheless be contradicted, provided that the contradiction fulfills the conditions of the "judicial limitations clause", primarily that the contradicting statute befits the values of the State of Israel as a Jewish and democratic state; the existence of  a proper objective; and an infringement that does not exceed the necessary minimum (see HCJ 212/03 supra, at p. 107; EA 92/03 Mofaz v. The Chairman of the Central Elections Committee, 57 PD (3) 793, 810; HCJ 3434/06 Hofnung v. The Chairman of the Knesset, 50 PD (3) 57, 76).  This conclusion is also called for in light of considerations of constitutional harmony (see AHARON BARAK, SHOFET BE'CHEVRA DEMOKRATIT [A JUDGE IN A DEMOCRACY] (2004), at pp. 351-353).  Against this background, section 17 of the basic law regarding the right to appeal  – that doesn't include an express limitations clause – should be read as allowing contradiction of it by a regular statute that fulfills the conditions of "the judicial limitations clause" (compare BARAK (2004) supra at p. 352).

 

 

15.          Does section 38 of the arbitration law fulfill the conditions of "the judicial limitations clause" of section 17 of Basic Law: Judicature?  My answer is affirmative.  Indeed, even if it should be determined that limitation of appeal of decisions according to the arbitration law exclusively to appeal by permission constitutes a contradiction of section 17 of the basic law – and, as aforementioned, it is questionable if that is so – such contradiction fulfills the conditions of "the judicial limitations clause", and thus section 38 of the arbitration law passes the constitutional test.  It is not argued before me that section 38 of the arbitration law is at odds with the values of the State of Israel as a Jewish and democratic state.  Regarding the condition regarding proper objective: that condition it indeed fulfills.  Indeed, at the basis of the restriction of appeal of decisions regarding arbitration exclusively to appeal by permission stands a proper objective which fulfills an important social interest (see CA 4886/00 Gross v. Keidar, 57 PD (5) 933, Procaccia J. at pp. 942-945).  That objective is a derivative of the special objective of the institution of arbitration.  It is based upon the assumption that there is benefit for the parties, as well as for the wider public interest, in resolving disputes on the basis of agreement, outside of the courtroom.  It assumes that the efficiency of such resolution and the incentive to turn to such resolution are conditional, inter alia, upon the ability to conclude the dispute relatively quickly, with very well defined and limited involvement of the courts in the proceedings themselves and their results (see CLA 125/68 Shachav v. Shachav, 23 PD (1) 16, 19-20 Berenson J., and SMADAR OTTOLENGHI, BORERUT – DIN VE'NOHAL [ARBITRATION – LAW AND PROCEDURE] (4th ed. 2005) 3-5, and references therein).  It is for good reason that the causes for intervention in arbitration proceedings were defined clearly in the arbitration law.  It is for good reason that the court usually does not interfere in the arbitration process or in its results.  It is for good reason that intervention of the appellate instance in decisions of courts regarding arbitration are also limited (see CA 4886/00 supra, at p. 943; and CApp 427/62 Amir Biyaf Ltd. v. Chananya Yitschaki u'Banav Ltd., 16 PD 1958, 1960; CA 823/87 Dania Sibus v. S. A. Ringel, 42 PD (4) 605, 612; LCA 1999/02 Ilax (Yisrael) Ltd. v. D. S. M., Construction and Development Ltd. (yet unpublished)).  In any case, against the background of this important objective, the provision of section 38 of the arbitration law, which limits the possibility of appealing decisions pursuant to the arbitration law to appeals by permission only, realizes a proper objective.  It advances the efficiency of the institution of arbitration, and the advantages that stem from it.  It grants weight to the agreement between the parties.  It reflects the fact that the very heart of arbitration is resolution of the issue outside of the courtroom.

 

16.          Even if the objective of section 38 of the arbitration law is proper, the question whether the impingement is not excessive also needs to be examined.  This examination is carried out according to the three tests of proportionality, regarding a rational link between the means and the objective; a lack of a less impinging means that realizes the same objective; and the existence of a proper relationship between the benefit stemming from the impingement and the harm it causes (see, e.g. HCJ 1715/97 The Investment Managers' Bureau in Israel v. The Minister of Finance, 51 PD (4) 367, 392-393).  According to these tests, it is not difficult to determine that the restriction of the possibility of appealing a decision pursuant to the arbitration law exclusively to appeal by permission is a proportional impingement upon the constitutional right of appeal: first, the means chosen – restriction of the possibility of appealing to appeal by permission only – is rationally linked to the objective, which is preserving the objective of the institution of arbitration, of making the arbitration process more efficient, and realizing the interest of the parties and of the public at large in resolving the issue, to the extent possible, without judicial intervention.  Second, prima facie, there is no less impinging means that can realize the same objective.  Prima facie, the spectrum of possibilities that stood before the legislature regarding the possibility of appealing decisions pursuant to the arbitration law was either to completely reject the possibility of appealing to an appellate instance; allowing appeal by permission only; or allowing appeal as of right.  Appeal as of right would, as aforementioned, frustrate the proper purpose of making the arbitration procedure efficient and preserving its framework as a proceeding whose essence is decision of the dispute outside of the courtroom (see CA 4886/00 supra, ibid).  Appeal by permission is a means which impinges less than the more severe alternative – which, prima facie, the legislature could have chosen – of rejecting the possibility of appeal of decisions of courts pursuant to the arbitration law.  No other less harmful means which could still realize the same objective was argued before me.  The conclusion is, therefore, that the means chosen in section 38 of the statute also fulfills the proportionality condition of a lack of a less harmful means that realizes the same objective.  Last, there is a proper relationship between the benefit in limiting the possibility of appeal to appeal by permission only, and the prima facie harm to the party to whom appeal as of right is not granted.  The party's ability to turn to a higher instance is preserved in this arrangement, and the appellate court can examine the circumstances of the case and decide whether to grant permission to hear the arguments as an appeal or not.  At the same time, the need to attain permission ensures that the legal proceedings related to arbitration will be shorter than regular proceedings, and that the objective at the basis of the institution of arbitration will be preserved, as aforementioned.  The conclusion, therefore, is that section 38 of the arbitration law also withstands the third subtest of proportionality, regarding a proper relationship between the benefit from the means and the harm caused by it.

 

Result

 

17.          My conclusion is therefore as follows: applicant's application to determine that it has the right to appeal the judgment of the District Court in light of section 17 of Basic Law: Judicature, despite the clear provision of section 38 of the arbitration law is rejected: first, prima facie, applicant did not lift its burden in arguing the unconstitutionality of a statutory provision of the Knesset, especially in light of the doubts regarding the interpretation of the scope of section 17 of the basic law.  Second, even if section 38 of the arbitration law contradicts section 17 of the basic law, that contradiction is for a proper purpose and is not excessive.  In light of that, my conclusion is that applicant's argument regarding the unconstitutionality of section 38 of the arbitration law is rejected, and thus its argument regarding its entitlement to file an appeal specifically as an appeal as of right cannot be accepted.  The proceeding shall thus continue to be heard as an appeal by permission, as determined in section 38 of the arbitration law.  I make no award of costs for this application.

 

Given today, 1 Shvat 5766 (Jan 30 2006).

 

Yigal Mersel, Judge

Registrar

 

 

 

 

 

 

HCJ 8276/05

Adalah Legal Center for Arab Minority Rights in Israel

and others

v.

1.             Minister of Defence

2.             State of Israel

HCJ 8338/05

Estate of the late Shadan Abed Elkadar Abu Hajla

and others

v.

1.             Minister of Defence

2.             Minister of Justice

3.             Attorney-General

HCJ 11426/05

Estate of the late Iman Alhamatz

and others

v.

1.             Minister of Defence

2.             State of Israel

 

 

The Supreme Court sitting as the High Court of Justice

[12 December 2006]

Before President Emeritus A. Barak, President D. Beinisch

and Justices A. Procaccia, E.E. Levy, A. Grunis, M. Naor, S. Joubran,

E. Hayut, D. Cheshin

 

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: In 2005, an amendment was made to the law of torts with regard to the liability of the State of Israel arising from the activities of its security forces in the territories of Judaea, Samaria and the Gaza Strip. Section 5C of the Torts (State Liability) Law, 5712-1952, which was introduced by the amendment, increased the scope of the state’s exemption from liability, which was previously limited to combatant activities, to any activity (subject to some exceptions) taking place in a ‘conflict zone,’ and the Minister of Defence was authorized to determine which areas would constitute ‘conflict zones.’ He exercised this power on a large-scale basis.

The petitioners attacked the constitutionality of this amendment.

 

Held: Section 5C of the Torts (State Liability) Law, which was introduced by the 2005 amendment, is unconstitutional. It releases the state from liability for tortious acts that are in no way related to ‘combatant activities,’ no matter how broadly the term is defined. The proper approach is to consider each claim on a case by case basis, in order to determine whether the damage is the result of combatant activities or not.

 

Petition granted.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, s. 3.

Torts Ordinance [New Version], ss. 38, 41.

Torts (State Liability) Law, 5712-1952, ss. 1, 2, 5, 5A, 5A(2), 5A(3), 5A(4), 5C(b), 5C(b)(1), 5C(b)(3), 9A.

Torts (State Liability) Law (Amendment no. 4), 5762-2002.

Torts (State Liability) Law (Amendment no. 7), 5765-2005.

 

Israeli Supreme Court cases cited:

[1]           CA 5964/92 Bani Ouda v. State of Israel [2002] IsrSC 56(4) 1.

[2]           CA 623/83 Levy v. State of Israel [1986] IsrSC 40(1) 477.

[3]           HCJ 7957/04 Marabeh v. Prime Minister of Israel [2005] (2) IsrLR 106.

[4]           HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481.

[5]           CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[6]           HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

[7]           HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[8]           HCJ 1030/99 Oron v. Knesset Speaker [2002] IsrSC 56(3) 640.

[9]           HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (not yet reported).

[10]         HCJ 4593/05 United Mizrahi Bank Ltd v. Prime Minister (not yet reported).

[11]         HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[12]         HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2005] (2) IsrLR 335.

[13]         HCJ 2334/02 Stanger v. Knesset Speaker [2004] IsrSC 58(1) 786.

[14]         HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [2005] (1) IsrLR 340.

[15]         HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433.

[16]         HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [2004] IsrSC 58(1) 529.

[17]         HCJ 10026/01 Adalah Legal Centre for Arab Minority Rights in Israel v. Prime Minister [2003] IsrSC 57(3) 31.

[18]         HCJ 3434/96 Hoffnung v. Knesset Speaker [1996] IsrSC 50(3) 57.

[19]         CA 1432/03 Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [2005] IsrSC 59(1) 345.

[20]         CA 6521/98 Bawatna v. State of Israel (unreported).

[21]         CA 6790/99 Abu Samra v. State of Israel [2002] IsrSC 56(6) 185.

[22]         CA 1354/97 Akasha v. State of Israel [2005] IsrSC 59(3) 193.

[23]         CFH 1332/02 Raanana Local Planning and Building Committee v. Horowitz (not yet reported).

[24]         HCJ 2390/96 Karasik v. State of Israel [2001] IsrSC 55(2) 625.

[25]         CA 2781/93 Daaka v. Carmel Hospital [1999] IsrSC 53(4) 526; [1998-9] IsrLR 409.

[26]         HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (1) IsrLR 443.

[27]         HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[28]         HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[29]         LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [2003] IsrSC 57(5) 385.

[30]         HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[31]         AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [2004] IsrSC 58(3) 782.

[32]         HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

[33]         CFH 9524/04 Yinon Food Products Manufacture and Marketing Ltd v. Kara’an (unreported).

[34]         CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

 

American cases cited:

[35]         Koohi v. United States, 976 F. 2d 1328 (1992).

[36]         Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

 

English cases cited:

[37]         Mulcahy v. Ministry of Defence [1996] 2 All ER 758.

[38]         Bici v. Ministry of Defence [2004] EWHC 786.

 

For the petitioners in HCJ 8276/05 — H. Jabareen, O. Kohn, D. Yakir, Y. Wolfson.

For the petitioners in HCJ 8338/05 — H. Abuhussein, R. Masarwa.

For the petitioners in HCJ 11426/05 — O. Saadi, A. Yassin, L. Tsemel, G. Hliehel.

For the respondents — A. Licht, S. Nitzan.

 

 

JUDGMENT

 

 

President Emeritus A. Barak

The Torts (State Liability) Law (Amendment no. 7), 5765-2005, provides that the state shall not be liable in torts for damage that occurred in a conflict zone as a result of an act carried out by the security forces. There are several provisos to this rule. Is the law constitutional? This is the question that needs to be decided in the petitions before us.

A.            Factual and normative background

1.             The first Intifadeh began at the end of 1987. It was characterized by demonstrations, tyre-burning, the throwing of stones and Molotov cocktails at the security forces and Israeli citizens in Judaea, Samaria and the Gaza Strip, stabbings and the use of firearms and other weapons (see CA 5964/92 Bani Ouda v. State of Israel [1], at p. 4). The security forces operated in the territories in order to maintain order and security there. In the course of these operations, they used weapons and ammunition. This resulted on more than one occasion in injuries to persons and damage to property that was suffered by inhabitants of the territories, whether they were involved in the disturbances and hostile acts or not. In consequence, actions for damages were filed in the courts in Israel against the state by inhabitants of the territories who claimed that the state was liable under the law of torts for damage that they suffered as a result of what they alleged were negligent or deliberate actions of the security forces. From figures submitted by the respondents it can be seen that thousands of claims of this kind were filed in the various courts in Israel.

2.             These actions were tried in the courts in Israel in accordance with the Israeli law of torts. Under Israeli law, the state’s liability in torts is governed by the Torts (State Liability) Law, 5712-1952 (hereafter — the Torts Law). The fundamental principle enshrined in s. 2 of the law is that ‘For the purpose of liability in torts, the state is like any incorporated body.’ There are several provisos to this principle. The relevant proviso for our purposes concerns ‘combatant activity,’ which states (in s. 5):

‘The state is not liable in torts for an act that was caused as a result of combatant activity of the Israel Defence Forces.’

The Intifadeh claims gave rise to the question of how the term ‘combatant activity’ should be interpreted. Judgements that were given in these claims by the District Courts varied, on this question, between a ‘broad outlook’ and a ‘narrow outlook’ (see A. Yaakov, ‘Immunity under Fire: State Immunity for Damage caused as a result of “Combatant Activity”,’ 33(1) Hebrew Univ. L. Rev. (Mishpatim) 107 (2003), at pp. 158-172). The two approaches held that the activity of the security forces to maintain order and security in the territories during the First Intifadeh might be protected by this immunity. The broad approach tended to regard most of the operational activity of the security forces, which was intended to maintain order and security, as combatant activity. The narrow approach distinguished policing activities from combatant activities and sought to examine the circumstances of each activity in order to determine whether it was a combatant activity or not.

3.             This question of interpretation came before the Supreme Court at the beginning of the 1990s in Bani Ouda v. State of Israel [1]. During the hearing in that appeal, the respondents said that they intended to regulate the question of the state’s liability for damage caused in the Intifadeh by means of Knesset legislation. This led to the publication of the government-sponsored draft Treatment of Defence Forces Claims in Judaea, Samaria and Gaza Strip Law, 5757-1997 (Draft Laws 2645, at p. 497). The draft law sought to give the term ‘combatant activity’ a broad interpretation. It was proposed that ‘any operational activity of the Israel Defence Forces whose purpose was to combat or prevent terrorism, and any other action of protecting security and preventing a hostile act or an uprising that was carried out in circumstances of risk to life or body…’ should be regarded as combatant activity. But the legislative process was unsuccessful, and the draft law did not become statute. In these circumstances, the Supreme Court was required to make a decision in Bani Ouda v. State of Israel [1].

4.             The question that arose in Bani Ouda v. State of Israel [1] was whether shooting by the IDF in the direction of wanted persons who were in flight, without there being any danger to the lives of the soldiers, fell within the scope of combatant activity. For the purpose of the definition of combatant activity, it was held that:

‘The activity is a combatant one if it is an act of combat or a military-operational act of the army. The act does not need to be carried out against the army of a state. Acts against terrorist organizations may also be combatant activities’ (ibid. [1], at p. 7).

Notwithstanding, it was held that not all activity of the security forces should be considered combatant activity:

‘“Only genuine combatant activities within the narrow and simple meaning of this term… in which the special character of combat with its risks, and especially its ramifications and consequences, finds expression, are those that are intended by the wording of s. 5” (per Justice Shamgar in CA 623/83 Levy v. State of Israel [2], at p. 479)… The army carries out various “activities” in the territories of Judaea, Samaria and the Gaza Strip, which create risks of various kinds. Not all of its activities are “combatant” ones. Thus, for example, if the injured party is harmed by an assault of a soldier because of his refusal to comply with an order to erase slogans that are written on a wall, the act of assault should not be regarded as a “combatant activity,” since the risk that this act created is an ordinary risk of an act of law enforcement. This is not the case if an army patrol in a village or town finds itself in a situation of danger to life or serious physical risk because of shooting or the throwing of stones or Molotov cocktails, and in order to extricate itself it fires and injures someone. The act of shooting is a “combatant activity,” since the risk in this activity is a special risk. Between these two extreme cases there may be intermediate positions’ (ibid. [1], at p. 8).

It was therefore held that:

‘When answering the question whether an activity is a “combatant” one, all the circumstances of the incident should be examined. The following should be considered: the purpose of the act, the place where it occurred, the duration of the activity, the identity of the military force that is operating, the threat that preceded it and is anticipated from it, the strength of the military force that is operating and the duration of the incident’ (ibid. [1], at p. 9).

5.             Meanwhile the second Intifadeh broke out in September 2000. A fierce barrage of terrorism befell Israel and the Israelis in the territories. Thousands of terror attacks, which were mainly directed at civilians, were committed inside Israel and in the territories. More than a thousand Israelis lost their lives in the years 2000-2005. Approximately two hundred of these were in Judaea and Samaria. More than seven thousand Israeli citizens were injured. Approximately eight hundred of these were in Judaea and Samaria. Many of the injured became seriously disabled (see HCJ 7957/04 Marabeh v. Prime Minister of Israel [3], at para. 1 of my opinion). The terrorist organizations and terror operatives employed many different methods in their war against Israel. Frequently they operated from among the civilian population inside the territories. The security forces required special deployments and special operations in order to contend with the terrorism and its perpetrators. Sometimes they were compelled to fight in densely populated areas. Between 2000 and 2005 thousands of Palestinians living in the territories were injured as a result of the activity of the security forces. Some of these took part in the hostilities; others did not. As a result of these injuries, once again many claims were filed against the state for damage that was sustained, according to the plaintiffs, as a result of negligent or deliberate activity of the security forces.

6.             Against the background of these events, and in view of the interpretation given to the expression ‘combatant activity’ by the Supreme Court in Bani Ouda v. State of Israel [1], which in the opinion of the Knesset was too narrow, there was a further attempt to regulate in statute the question of the state’s liability for damage caused during the Intifadeh. The government-sponsored draft law that was formulated in 1997 was once again tabled in the Knesset. This time the legislative attempt was successful, and the Knesset adopted (on 24 July 2002) the Torts (State Liability) Law (Amendment no. 4), 5762-2002 (hereafter — ‘amendment 4’). This amendment added to s. 1 of the Torts Law a definition of the expression ‘combatant activity,’ which said the following:

‘“Combatant activity” — including any act of combating terror, hostilities or an uprising, as well as an act for the prevention of terrorism, hostilities or an uprising that was carried out in circumstances of risk to life or body.’

In addition, amendment 4 added s. 5A to the Torts Law, which provides special arrangements for claims that would be filed after its enactment for damage that was caused as a result of the activity of the security forces in the territories. Inter alia, s. 5A provides that notice should be given of damage within 60 days as a condition for filing a claim (s. 5A(2)); the limitations period for these claims is reduced to two years instead of seven (s. 5A(3)); and the rule concerning the transfer of the burden of proof in negligence with regard to dangerous items that is provided in s. 38 of the Torts Ordinance [New Version] and the rule of res ipsa loquitur provided in s. 41 of the Ordinance shall not apply (s. 5A(4)). The law allows the court to depart from these rules for special reasons that should be recorded. Obviously these restrictions apply in cases of claimants who have shown that their damage does not derive from ‘combatant activity,’ according to the new definition in the law, since otherwise the state would have immunity under s. 5 of the law.

B.             Amendment no. 7

7.             The legislature was not satisfied with this. On 27 July 2005, the Knesset amended the Torts Law once again in a manner that restricted even further the state’s liability for tortious acts that occurred in the territories. It passed the Torts (State Liability) Law (Amendment no. 7), 5765-2005 (hereafter — ‘amendment 7’). This amendment is the focus of the petitions before us. The essence of the amendment was the addition of ss. 5B and 5C of the Torts Law, which state:

‘Claims of an enemy or an operative or member of a terrorist organization            5B. (a) Notwithstanding what is stated in any law, the state is not liable in torts for damage that is caused to anyone stipulated in paragraphs (1), (2) or (3), except for damage that is caused in the types of claims or to the types of claimants as stated in the first schedule —

                (1) A national of an enemy state, unless he is lawfully present in Israel;

                (2) An operative or a member of a terrorist organization;

                (3) Anyone who is injured when he is acting on behalf of or for a national of an enemy state or a member or an operative of a terrorist organization.

                (b) In this section —

                ‘enemy’ and ‘terrorist organization’ — as defined in section 91 of the Penal Law, 5737-1977;

                ‘the state’ — including an authority, body or person acting on its behalf.

Claims in a conflict zone     5C. (a) Notwithstanding what is stated in any law, the state is not liable in torts for damage that is caused in a conflict zone as a result of an act done by the security forces, except for damage that is caused in the types of claims or to the types of claimants as stated in the second schedule —

                (b) (1) The Minister of Defence shall appoint a committee that shall be competent to approve, beyond the letter of the law, in special circumstances, a payment to an applicant to whom subsection (a) applies and to determine the amount thereof…

                                …

                (c) The Minister of Defence may declare an area to be a conflict zone; if the minister makes such a declaration, he shall determine in the declaration the borders of the conflict zone and the period for which the declaration shall apply; notice of the declaration shall be published in Reshumot.’

The first schedule provides that state immunity under s. 5B shall not apply to damage that is suffered by someone who is held in custody by the State of Israel. The second schedule provides that state immunity under s. 5C shall not apply to damage that is caused by a criminal offence, damage that is suffered by someone who is held in custody by the State of Israel, damage that is suffered as a result of an act of the civil administration that was done without reference to the conflict and damage that is suffered as a result of a road accident in which a vehicle of the security forces is involved when it is not being used for security operations.

8.             Section 3(b) of amendment 7 authorizes the Minister of Defence to declare areas conflict zones retroactively for the period from the beginning of the conflict (29 September 2000) until six months from the date of publication of amendment 7. The significance of this declaration is that tortious claims that were filed in the years 2000-2005 cannot be tried if the Minister of Defence has declared that they concern events that occurred in a conflict zone. The Minister of Defence made use of his power under this section and on 9 February 2006 and 12 February 2006 he declared (in Yalkut Pirsumim 5942 and 5943 respectively) various areas to be conflict zones for periods that preceded the enactment of the amendment. The territory of Judaea and Samaria was divided into 88 districts and an additional 22 crossing points. Some of these districts were declared conflict zones during a part of the period under discussion. Thus, for example, the Hebron district was declared a conflict zone during 100% of the period from September 2000 until the end of that year; during approximately 90% of the years 2002 and 2003, and during approximately 80% of the time in the years 2001, 2004 and 2005. The Greater Tulkarm district was declared a conflict zone during approximately 88% of the time in the years 2002 and 2003, and during approximately 82% of the time in 2004. The Greater Ramallah district was declared a conflict area during approximately 75% of the time in the years 2001-2003. District 64, which includes villages to the north of Jerusalem, was declared a conflict area during approximately half of the time since the Second Intifadeh broke out until the date of publishing the declaration. The territory of the Gaza Strip was divided into four districts and seven crossing-points. The southern district of the Gaza Strip was declared a conflict zone throughout the period. The central district of the Gaza Strip was declared a conflict zone during approximately 86% of the time. The northern district of the Gaza Strip was declared a conflict zone during approximately 95% of the time. Since 12 September 2005, when the IDF forces withdrew from the Gaza Strip, the whole of the Gaza Strip has been declared a conflict zone.

9.             The Minister of Defence exercised his power under s. 5C(b)(3) of the Torts Law and on 13 June 2006 enacted regulations that govern the activity of the committee for paying compensation beyond the letter of the law, which was established under s. 5C(b) of the law. In the regulations, it was held that the committee is competent to make payments to family members of anyone who was killed in a conflict zone, and to anyone who was seriously injured, on the conditions prescribed in the regulations. Inter alia, the committee should consider the seriousness of the injury and its circumstances, the family status of the injured person and to what extent making the payment will contribute towards the rehabilitation of the injured person. The committee is also authorized to make payments, for personal injury and property damage that are not insignificant, to anyone who is injured as a result of a criminal act, even if no one has been convicted of that act.

C. The contentions of the parties

10. The petitioners in HCJ 8276/05 are human rights organizations. The petitioners in HCJ 8338/05 are the estate and surviving relatives of the late Shadan Abed Elkadar Abu Hajla. According to them, on 11 October 2002 in the evening the deceased was sitting with her husband and their son on the balcony of their house at Rafidia in Shechem. Two IDF jeeps stopped on the road that passes by the house. Several shots were fired from the vehicle in the direction of the windows of the house. As a result of the shooting, the deceased was killed instantly and her husband and son were wounded. In December 2004, the Chief Military Advocate gave instructions to begin an army investigation to establish the circumstances of the deceased’s death. Before the investigation was completed, the petitioners filed a claim in torts against the state in the Nazareth Magistrates Court. After the enactment of amendment 7, and before the claim was tried, the state filed an application to dismiss the claim in limine. In its application the state said that the Minister of Defence had declared the Shechem district a conflict zone during the whole period from June 2002 until the end of March 2003. For this reason the court was requested to dismiss the claim in limine. In HCJ 11426/05 the petitioners include two separate groups. Each group filed a claim in torts against the state with regard to deaths or serious injuries that were caused, according to them, as a result of negligent and even deliberate activity of the security forces in the territories. All of the events took place between 2001 and 2004. After the enactment of amendment 7, these claims cannot be heard, if the districts in which the events took place are declared conflict zones.

11. The petitioners’ position is that amendment 7, and especially ss. 5B and 5C, are unconstitutional and therefore should be set aside. According to them, the Basic Laws apply to the violations of rights that arise from amendment 7, for four reasons. First, the Basic Laws apply to the violations of rights that arise from the amendment, because the amendment denies rights in Israel itself and in its courts; second, because the amendment applies, according to its wording, both to Israelis and to Palestinians; third, the Basic Laws apply in the territories because these laws apply to all the organs of government, and therefore every soldier carries in his knapsack not only the principles of administrative law but also the Basic Laws; fourth, because the Basic Laws give rights to Palestinians who are inhabitants of the territories, by virtue of their being protected persons who are present in an area that is subject to Israel’s belligerent occupation.

12. The petitioners argue that several constitutional rights have been violated. First, amendment 7 violates the constitutional right to life and physical integrity, in that it denies someone who has lost his life or suffered personal injury as a result of a deliberate or negligent act any relief for this injury. Second, the amendment violates property rights, in that it denies someone whose property has been damaged as a result of a deliberate or negligent act any relief. Third, the amendment violates the constitutional right to apply to the courts. Fourth, the amendment violates the constitutional right to equality, since it is intended to apply mainly to claims of Palestinians. Especially serious, according to the petitioners, is the fact that all of these violations include a retroactive violation of the rights of those persons who were harmed by negligent acts of the security forces and who filed a claim in the years preceding the enactment of the amendment. According to them, the violations are particularly grave when we consider the application of the law de facto. In this regard, the petitioners say that the Minister of Defence has declared extensive areas of the West Bank and the Gaza Strip conflict zones for long periods of time. Thereby he has denied the right of many persons to obtain relief for their damage. The petitioners discuss how Israel holds the territories under belligerent occupation. It maintains strict urban control in most of the towns and villages of the West Bank. This control of the towns and villages, streets and crossings, involves close daily contact between soldiers and civilians. This contact is really a form of police work. Notwithstanding, it sometimes involves harm to civilians, whether negligent or deliberate. The result of amendment 7 is that the law exempts the security forces from liability for all the consequences of their acts in the territories that have been declared conflict zones. It justifies, inter alia, shooting injuries and physical injuries in the course of regular checks at roadblocks, property damage in the course of searches, and looting in the course of patrols and arrests. In all of these cases, the injured parties cannot obtain any relief. This results in contempt for the lives of the Palestinians who live in the territories, and contempt for their rights to physical integrity and their property rights.

13. The petitioners’ position is that the violations of the constitutional rights do not satisfy the conditions of the limitations clause. First, legislation that violates rights retroactively cannot be said to satisfy the condition that the violation should be made in ‘statute.’ Second, amendment 7 was not intended for a proper purpose, nor does it befit the values of the State of Israel. The purpose of the legislation is to prevent Palestinians who live in the territories from applying to the courts in Israel. This is a purpose that is improper. It undermines the status of the judiciary. It also violates the rule of law. Another purpose underlying the law is to exempt the state from the financial cost involved in paying compensation. Considerations of economic cost and administrative efficiency do not constitute a proper purpose for a violation of human rights. An additional purpose that underlies the law is to provide a solution to the special difficulties of evidence that confront the state when it seeks to defend itself against tort claims that are related to combat incidents. The petitioners’ position is that the state has not made clear what is special about these difficulties, especially in view of the fact that the burden of proof in claims of this kind rests in any case with the plaintiffs, and therefore the objective difficulties of proof fall mainly on the shoulders of the plaintiffs. Third, even if we say that the purpose is a proper one, the measures adopted in amendment 7 are disproportionate. The state and its agents have already been granted immunity from claims concerning damage that is caused during combatant activity under the provisions of s. 5 of the Torts Law. The definition of ‘combatant activity’ was even expanded in amendment 4. That amendment also introduced additional substantial and procedural advantages for the state in tort claims. All of these are sufficient in order to achieve the proper purpose, which is to protect the state from tort claims that arise from combatant activity.

14. The petitioners further argue that amendment 7 also violates the rules of humanitarian law that apply in territories that are under belligerent occupation, as well as the provisions of international human rights law. The petitioners say that Israel’s control of the territories is a belligerent occupation. The military commander is responsible not only for security interests but also for the safety, security and rights of the protected inhabitants in the territories. Inter alia, the military commander has the duty to compensate protected inhabitants who are harmed as a result of the negligent actions of the security forces. The amendment denies this obligation of the military commander and therefore it is contrary to the provisions of humanitarian law and the provisions of international human rights law.

D. The respondents’ arguments

15. The respondents discuss at length the security background to the enactment of amendment 7. Their position is that the second Intifadeh is a ‘war in the common meaning of the word’ (para. 1 of the respondents’ reply of 6 July 2006) that is being waged in the streets of Israel as well as in the territories of Judaea, Samaria and the Gaza Strip. The scope of the security activity whose purpose is to contend with the threats of terrorism in the second Intifadeh is very great. The conflict has a special character, because the terrorist organizations operate frequently from within residential areas. This requires activity of the security forces inside those residential areas. This activity is intended to target terrorists, but unfortunately inhabitants who are not involved in terrorist activity are also sometimes harmed. These inhabitants file thousands of tort claims against the state for personal injury and damage to property that they allegedly suffer as a result of the activity of the security forces. But the law of torts was not designed to deal with a situation of this kind. Inter alia, this is because the risks in times of war are greater in scope and of more diverse kinds than in times of peace and because of the difficulties of obtaining evidence in cases concerning war damage. Moreover, it is intolerable that the State of Israel should be liable to compensate not only its citizens who are injured by the armed conflict, but also the inhabitants of the Palestinian Authority. The principle that should be followed is that each party to the armed conflict should be liable for its own damage. The Palestinian Authority has mechanisms that are designed to compensate persons who are injured by the armed conflict for their damage. In addition, the Palestinians receive aid from international organizations. For these reasons, there is no basis for applying the law of torts to damage resulting from the armed conflict between the State of Israel and the Palestinians who inhabit the territories. The law of torts should be adapted to the new reality that has been created. Amendment 7 was intended to achieve this goal. The provisions of s. 5B enshrine in the law the principle that is accepted in international law, in English common law and also in Israeli common law, according to which a state is not liable for damage sustained by an enemy alien.

16. The respondents’ position is that it is doubtful whether amendment 7 violates constitutional rights, since it is doubtful whether the Basic Laws give constitutional rights to inhabitants of the territories. Notwithstanding, in view of their position that, even if there is a violation of constitutional rights, it satisfies the conditions of the limitations clause, the respondents focused their arguments on the conditions of the limitations clause. The respondents’ position is that the purposes underlying the amendment are proper ones. The main purpose of the amendment is, as aforesaid, to adapt the law of torts to the special characteristics of the armed conflict with the Palestinians. The amendment was not intended to undermine the status of the judiciary, but to limit the scope of the state’s liability in torts. Therefore the amendment does not conflict with the principle of the separation of powers. The law also does not contain any approval for or consent to negligent or unlawful activity of the security forces. The absence of any liability in torts does not prevent scrutiny of the conduct of the security forces within the context of the criminal law and disciplinary proceedings. It cannot therefore be said that the amendment undermines the rule of law. In addition, the amendment seeks to avoid an undesirable and unjust result, whereby Israel is responsible both for damage to Palestinian inhabitants and for the burden of the considerable damage suffered by Israel and Israelis. The respondents discuss how this purpose, which does indeed involve an economic element, reflects a proper ethical purpose. Finally, in so far as enemy aliens and members of terrorist organizations are concerned, amendment 7 seeks to restrict their claims in order not to aid the enemy in its war against Israel.

17. The respondents’ position is that the violations of rights in amendment 7 satisfy the requirements of proportionality. First, the arrangements in the amendment make it possible to overcome the ethical and practical difficulties of implementing the law of torts in the course of an armed conflict. The amendment also realizes the principle that each party in a war is liable for its damage. This satisfies the rational connection test between the purpose of the amendment and the arrangements provided in it. Second, the arrangements in the amendment satisfy the second test of proportionality (the least harmful measure test). The amendment does not provide an arrangement that amounts to a sweeping denial of the right to compensation. The application of the amendment is conditional upon a declaration that a certain district is a conflict zone. These declarations are limited in time and place and they are made only after a careful examination of the conditions in the area. Admittedly, because of the large scale of the war, large parts of the territories of Judaea, Samaria and the Gaza Strip have been declared conflict zones for lengthy periods. But this is not a sweeping and general declaration, merely a declaration that is based on a careful and precise analysis. Moreover, the broad principle ruling out liability in torts is accompanied in the second schedule by exceptions to the rule. These exceptions reduce the intensity of the violation. Furthermore, the Minister of Defence may add to the list of exceptions. Finally, the law provides a further ‘exceptions mechanism’ that allows compensation to be paid beyond the letter of the law. On the basis of all of these, the respondents’ position is that amendment 7 reflects an arrangement that satisfies the requirements of proportionality. The respondents’ position is that amendment 4 cannot be regarded as an arrangement that violates rights to a lesser degree. There are several reasons for this. According to them, amendment 4 was prepared after the first Intifadeh, and it does not provide a solution to the unique nature of the current armed conflict. Moreover, amendment 4 does not reflect the ethical purpose that each party in an armed conflict should be liable for its losses. Finally, amendment 4 does not address the claims of enemy aliens and members of terrorist organizations. Therefore for this reason also it is insufficient. Third, the respondents’ position is that amendment 7 satisfies the third condition of proportionality (the test of proportionality in the narrow sense). The benefit of the amendment is very great. It adapts the law of torts to the unique circumstances of the armed conflict. It enshrines ethical standards and solves practical problems in implementing the existing law. The amendment also prevents an abuse of Israeli law for the purpose of obtaining money that may be used to wage war against Israel. On the other hand, the harm caused by the amendment is not as serious as the petitioners claim. The respondents discuss how even according to the law that prevailed before the amendment was enacted, the state had immunity against a claim for combatant activity. Many claims arising from events that occurred in the territories since September 2000 may be dismissed on this ground alone. Moreover, some of the claims can be addressed within the framework of the exceptions to the rule or by the committee that is authorized to pay compensation beyond the letter of the law. Finally, it should be remembered that the plaintiffs have an alternative relief of receiving compensation from the Palestinian Authority. In view of all this, the respondents’ position is that the amendment to the Torts Law satisfies the third requirement of proportionality.

18. The respondents’ position is that the amendment does not violate the provisions of international humanitarian law or international human rights law, since both of these sets of laws restrict the right of claim of enemy aliens and recognize the immunity of the state against claims arising from combatant activities during an armed conflict. The respondents point out that exceptions to the state’s liability for claims in torts that derive from combatant activities are recognized in the law of many countries such as the United States, England, Canada, Italy, Japan and Germany.

E.             The proceeding

19. The petitions in HCJ 8276/05 and HCJ 8338/05 were filed at the beginning of September 2005. The petition in HCJ 11426/05 was filed in December 2005. The hearing of the petitions was deferred twice (in March 2006 and April 2006), with the consent of the parties, until regulations were enacted with regard to the committee for paying compensation beyond the letter of the law. The first hearing of the petitions took place on 13 July 2006 before a panel of three justices. At the end of this, an order nisi was made. On 17 July 2006 it was decided that the petitions would be heard before an expanded panel of nine justices. According to an agreed statement filed by the parties, an interim order was made on 30 July 2006, according to which the hearing of pending claims that the state contended were subject to amendment 7 was suspended. The hearing of the petitions on their merits took place before the expanded panel on 30 August 2006.

F.             The questions that arise

20. The petitions challenge the constitutionality of amendment 7. A claim of this kind should focus on one of the Basic Laws. In our case, this is the Basic Law: Human Dignity and Liberty. Claims that amendment 7 violates human rights that are recognized in Israel under Israeli common law, international human rights law or international humanitarian law cannot — according to the constitutional structure of the State of Israel — lead to the unconstitutionality of a statute. The Supreme Court discussed this in HCJ 1661/05 Gaza Coast Local Council v. Knesset [4], where it held:

‘It is not sufficient to find that the Israeli settlers in the area being vacated enjoy human rights that are enshrined in Israeli common law. It is not sufficient to find that they enjoy human rights that are recognized by public international law. Such recognition — and on this we are adopting no position — while important, cannot give rise to a constitutional problem in Israel. The reason for this is that when the violation of a right that arises in common law or public international law conflicts with an express provision of a statute of the Knesset, the statute of the Knesset prevails, and no constitutional problem arises. Indeed, a constitutional problem arises in Israel only if the right of the Israeli settlers is enshrined in a constitutional super-legislative normative provision, i.e., in a Basic Law. Moreover, it is insufficient that the Disengagement Implementation Law violates a right enshrined in a Basic Law. A constitutional problem arises only if the Disengagement Implementation Law violates the right unlawfully. When these conditions are satisfied, we say that the law is unconstitutional and we consider the question of the relief for the violation of the Basic Law’ (Gaza Coast Local Council v. Knesset [4], at p. 544).

This is the position in our case. We should examine whether amendment 7 unlawfully violates the Basic Law: Human Dignity and Liberty. This examination, according to our accepted practice, is done in three stages (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [5]; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [6]; HCJ 6055/95 Tzemah v. Minister of Defence [7]; HCJ 1030/99 Oron v. Knesset Speaker [8]; Gaza Coast Local Council v. Knesset [4], at p. 544; HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [9]; HCJ 4593/05 United Mizrahi Bank Ltd v. Prime Minister [10]). The first stage examines whether the law — in our case, amendment 7 — violates a human right that is enshrined and protected in a Basic Law. If the answer is no, the constitutional scrutiny ends (see HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [11]; HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [12]). If the answer is yes, the constitutional scrutiny passes to the second stage. In this stage, we consider the question whether the law containing the violation, in whole or in part, satisfies the requirements of the limitations clause. Indeed, our basic constitutional outlook is that not every violation of a constitutional human right is an unlawful violation. We recognize lawful violations of constitutional human rights. These are those violations that satisfy the conditions of the limitations clause (see HCJ 2334/02 Stanger v. Knesset Speaker [13]; HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14]). If the violation of the constitutional human right is lawful, the constitutional scrutiny ends. If the violation does not satisfy one of the conditions of the limitations clause, the violations is unlawful. In such a case, we pass on to the third stage of the scrutiny, which concerns the consequences of the unconstitutionality. This is the relief stage. I discussed the importance of this division of the constitutional scrutiny into three stages in Movement for Quality Government in Israel v. Knesset [9], where I said:

‘This division into three stages is important. It is of assistance in the legal analysis. It is intended “to clarify the analysis and focus the thinking” (HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and Social Affairs [15], at p. 440; …). It clarifies the basic distinction, which runs like a golden thread through human rights law, between the scope of the right and the degree of protection afforded to it and its de facto realization (see A. Barak, A Judge in a Democracy (2004), at p. 135; …). It serves as a basis for the distinction between the horizontal balance (in the first stage) and the vertical balance (in the second stage), between human rights inter se and between human rights and social values and interests (see HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [16], at p. 537); it is of assistance in outlining the distinction between the role of the court in the interpretation of the rights in the Basic Law (in the first stage) and its role in the constitutional scrutiny of the violation of these rights in legislation (in the second stage). It is of assistance in examining arrangements in the law, such as affirmative action, while examining the question whether this falls within the scope of the right to equality (the first stage), or whether is constitutes a violation of equality that satisfies the requirements of the limitations clause (the second stage) (see HCJ 10026/01 Adalah Legal Centre for Arab Minority Rights in Israel v. Prime Minister [17], at p. 40; …). It clarifies disagreements on the question of the burden of proof’ (Movement for Quality Government in Israel v. Knesset [9], at para. 21 of my opinion).

Let us now turn to the required constitutional scrutiny.

G.            First stage: the violation of the constitutional right

(1) Presentation of the problem

21. The first stage of the constitutional scrutiny examines whether the statute of the Knesset — in our case, amendment 7 — violates a human right that is protected in the Basic Law: Human Dignity and Liberty. This stage is comprised in our case of two separate questions. The first of these is whether the Basic Law: Human Dignity and Liberty applies in the petitioners’ case, since the damage was caused to them outside Israel. This is a question that arises specifically with regard to amendment 7. If the answer to this question is yes, then the second question arises. This question arises in all the cases where a constitutional contention is raised. The question is whether a human right that is enshrined in a Basic Law has indeed been violated. As we have seen, it is insufficient that a law violates a human right. The constitutional question arises only if the human right is enshrined in a Basic Law. For our purposes, this is the Basic Law: Human Dignity and Liberty. It is also customary to consider at this stage whether the violation is not merely a trivial one (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [5], at p. 431; HCJ 3434/96 Hoffnung v. Knesset Speaker [18], at p. 57). Let us turn to the first of these two questions.

(2) The first question: does the Basic Law apply?

22. In general, Israeli legislation has territorial application. When a law is intended to apply to persons or acts outside Israel, this needs to be stated in statute (expressly or by implication). Indeed, there is a presumption that the laws of Israel apply to legal relationships in Israel, and they are not intended to regulate legal relationships outside Israel. This is the case with criminal legislation in Israel; it is also the case with legislation in other spheres. This presumption is rebuttable (see A. Barak, Legal Interpretation: Statutory Interpretation (vol. 2, 1993), at p. 578). This rule also applies to Israeli legislation in the territories. Judaea, Samaria and the Gaza Strip are not a part of the State of Israel; no declaration has been made that they are subject to the ‘law and jurisdiction and administration of the state.’ There is a presumption that Israeli legislation applies in Israel and not in the territories, unless it is stated in legislation (expressly or by implication) that it applies in the territories (ibid., at p. 579). A similar rule applies also to the Basic Laws. There is therefore a presumption that the various Basic Laws apply to acts done in Israel. As we have seen, this presumption may be rebutted (either expressly or by implication). Can it be said that this presumption is rebutted when the Basic Law concerns human rights? Should the need to enforce human rights against the state not lead to a conclusion that the Israeli organs of government are obliged ‘to uphold the rights under this Basic Law’ everywhere? Should it not be said that any Israel official carries in his knapsack the Basic Law: Human Dignity and Liberty? Should it not be said that wherever the official goes, the Basic Law goes with him? Should it not be said that this approach is particularly appropriate when the act of the official is done in a place that is subject to Israel’s belligerent occupation (see A. Barak, Legal Interpretation: Constitutional Interpretation (vol. 3, 1994), at p. 460)? These questions are good ones. We considered some of them in Gaza Coast Local Council v. Knesset [4] (at p. 560). We held in that case that the Basic Laws concerning human rights ‘give rights to every Israeli settler in the area being vacated. This application is personal. It derives from the fact that the State of Israel controls the area being vacated’ (ibid. [4]). We left unanswered the question whether the Basic Laws concerning human rights also give rights to persons in the territories who are not Israelis. Should we not say that with regard to ‘protected inhabitants’ international human rights law replaces Israeli internal law in this regard? There is no simple answer to these questions. Indeed, in its reply the State does not devote much attention to this question, since in its opinion amendment 7, even if it violates rights that are enshrined in the Basic Law: Human Dignity and Liberty, does so lawfully. It is also our opinion that there is no reason to consider the question of the territorial application of the Basic Law: Human Dignity and Liberty, since the rights that amendment 7 violates are rights in Israel, not rights outside Israel.

Let me explain.

23. Section 5B of amendment 7 applies, according to its wording, to tortious acts done in Israel. The question of the application of the Basic Law therefore does not arise at all in this context. By contrast, s. 5C of amendment 7 provides that ‘the state is not liable in torts for damage that is caused in a conflict zone as a result of an act done by the security forces.’ A ‘conflict zone’ is outside Israel. Does the question of the application of the Basic Law: Human Dignity and Liberty outside Israel arise with regard to this provision? My answer is no. The rights of the residents of the territories which are violated by amendment 7 are rights that are given to them in Israel. They are their rights under Israeli private international law, according to which, when the appropriate circumstances occur, it is possible to sue in Israel, under the Israeli law of torts, even for a tort that was committed outside Israel. Indeed, since the Six Day War, and especially since the first Intifadeh, the courts in Israel have heard claims in torts filed by Palestinian inhabitants of the territories who were injured in the territories by Israeli tortfeasors in general (see, for example, CA 1432/03 Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [19]), and by the activities of the security forces in the territories in particular (see, for example, Bani Ouda v. State of Israel [1]; CA 6521/98 Bawatna v. State of Israel [20]; CA 6790/99 Abu Samra v. State of Israel [21]; CA 1354/97 Akasha v. State of Israel [22]). This situation is consistent with the principles of the conflict of laws in torts that prevail in our legal system (for an extensive survey, see Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [19]). Even the state made no claims against this application of the Israel law of torts. During the oral pleadings in the petitions before us, we asked the state’s representatives whether they had any contention under Israeli private international law with regard to the application of Israeli tort law to the Intifadeh claims. The reply of the state’s representatives was no. It follows that amendment 7 violates the rights given in Israel to inhabitants of the territories who are harmed by tortious acts of the security forces in the territories. This was the position before amendment 7. This position was changed by s. 5C of amendment 7. The rights in Israel under the law of torts were taken away from the inhabitants of the territories for tortious acts done by the security forces in a conflict zone. The effect of amendment 7 is therefore in Israel. It violates rights that the injured parties from the territories had in Israel. The denial of these rights is subject in principle to the Basic Law: Human Dignity and Liberty. This application is not extra-territorial. It is territorial. Of course, this still leaves us with the second question of whether amendment 7 violates one of the rights prescribed in the Basic Law: Human Dignity and Liberty. Let us now turn to consider this question.

(3) The second question: has a right enshrined in the Basic Law: Human Dignity and Liberty been violated?

24. Amendment 7 provides that the state is not liable in torts when the conditions set out therein are satisfied. Does this denial of liability for torts violate rights that are enshrined in the Basic Law: Human Dignity and Liberty? The answer is yes. There are two main reasons for this. First, the right in torts that is given to the injured party (or to his heirs or dependants) and that was denied by amendment 7 is a part of the injured party’s constitutional right to property. Indeed, the word ‘property’ in s. 3 of the Basic Law: Human Dignity and Liberty — ‘A person’s property should not be harmed’ — means a person’s property rights. In Gaza Coast Local Council v. Knesset [4] it was held with regard to the word ‘property’ in the Basic Law: Human Dignity and Liberty:

‘“Property” in this provision includes every property right. The Basic Law protects against any harm to a person’s property rights. It follows that the protection of property extends not only to “property” rights such as ownership, a lease and an easement, but also to “obligatory” rights that have a property value’ (ibid. [4], at p. 583; see also United Mizrahi Bank Ltd v. Migdal Cooperative Village [5], at pp. 431, 572).

In United Mizrahi Bank Ltd v. Prime Minister [10] I added:

‘The question “what is property?” has arisen in several judgments. The answer to this is not at all simple. The difficulty arises from the complexity of the theoretical concept of “property” and the lack of a consensus as to the reasons underlying it… It would appear that everyone agrees that property in the Basic Law extends to all the various kinds of property rights according to their meaning in private law. Everyone also agrees that property in the Basic Law is not limited merely to property rights. Indeed, property in its constitutional sense is not the same as property in its private law sense… Therefore the constitutional concept of property also includes the right of possession and obligatory rights… In one case it was held that the word property in the Basic Law includes a pension… Against this background it has been held that property in its constitutional sense means a property right, whether it is a right in rem or a right in personam’ (ibid. [10], at para. 9).

This approach to the constitutional concept of property is accepted in most countries where property is given a constitutional status (see Y. Weisman, ‘Constitutional Protection of Property,’ 42 HaPraklit (1995) 258; see also A.J. van der Walt, Constitutional Property Clauses (1999), at p. 22). This leads to the conclusion that the right of an injured party under the law of torts is a part of his property rights and therefore part of his ‘property.’ Moreover, the right of a person to compensation for a violation of his right against the state is also a part of his ‘property.’ Indeed, ‘the right to compensation that is intended to restore the injured party to his original position… is a property right according to its meaning in the Basic Law’ (E. Rivlin, Road Accidents — Procedure and Calculation of Damages (New Extended Edition, 2000), at p. 932). The violation of the right to compensation is also a violation of property rights (see Gaza Coast Local Council v. Knesset [4], at p. 589; CFH 1332/02 Raanana Local Planning and Building Committee v. Horowitz [23]; HCJ 2390/96 Karasik v. State of Israel [24]; CA 2781/93 Daaka v. Carmel Hospital [25]).

25. Second, liability in torts protects several rights of the injured party, such as the right to life, liberty, dignity and privacy. The law of torts is one of the main tools whereby the legal system protects these rights; it reflects the balance that the law strikes between private rights inter se and between the right of the individual and the public interest. Denying or restricting liability in torts undermines the protection of these rights. Thereby these constitutional rights are violated. Indeed:

‘The basic right of a person, who has been injured by a tortious act, to compensation is a constitutional right that derives from the protection afforded to his life, person and property… Any restriction of the right to compensation for a tortious act needs to satisfy the constitutional test of having a proper purpose and not being excessive’ (I. Englard, Compensation for Road Accident Victims (third edition, 2005), at p. 9).

Other legal systems that afford constitutional protection to human rights are also familiar with the approach that the law of torts is subject to constitutional restrictions, and changes to it require constitutional scrutiny (I. Englard, The Philosophy of Tort Law (1993), at pp. 125-134).

H.            Second stage: Is the violation of the constitutional rights lawful?

(1) The limitations clause

26. The second stage of the constitutional scrutiny considers the limitations clause in the Basic Law: Human Dignity and Liberty, which states:

‘Violation of rights                8.             The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose, and to an extent that is not excessive, or in accordance with a law as aforesaid by virtue of an express authorization therein.’

This provision plays a central role in our constitutional system. It has two aspects. On the one hand it protects the human rights that are set out in the Basic Law; on the other hand it determines the conditions for violating the basic right (see HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [26], at para. 54 of my opinion). The limitations clause is based on the outlook that in addition to human rights there are also human obligations; that the human being is a part of society; that the interests of society may justify a violation of human rights; that human rights are not absolute, but relative. The limitations clause reflects the approach that human rights may be restricted, but there are limits to such restrictions (see Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14], at para. 11; Movement for Quality Government in Israel v. Knesset [9], at paras. 45 and 46 of my opinion). Indeed, human rights are not afforded the protection of the law to the fullest extent; the constitutional system does not allow the realization of human rights in their entirety.

27. The limitations clause is based on two main elements. The first element concerns the purpose of the legislation. The limitations clause provides that a statute that violates a constitutional human right should satisfy the requirement that it ‘… befits the values of the State of Israel, is intended for a proper purpose…’. The second element concerns the means used to achieve the purpose. The limitations clause provides that the means adopted by the statute to realize the purpose should violate the constitutional human rights ‘to an extent that is not excessive.’ There is a close relationship between these two elements. The means are intended to realize the purpose. Therefore we should examine whether the purpose is constitutional. When this has been determined, we should examine whether the means for realizing that purpose are constitutional.

28. The question of purpose is complex. In our case, it is sufficient if we determine that the purpose that should be considered is the main purpose of the statute (see HCJ 4769/95 Menahem v. Minister of Transport [27], at p. 264). This purpose should be a ‘proper’ one in the context of a violation of human rights (see Gaza Coast Local Council v. Knesset [4], at p. 548; Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [26], at para. 61 of my opinion). The characteristics of the proper purpose are that it ‘is intended to realize social purposes that are consistent with the values of the state as a whole, and that display sensitivity to the place of human rights in the overall social system’ (see Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [26], at para. 62 of my opinion). From the viewpoint of the need to realize the purpose, the law is that this need varies according to the nature of the right and the degree of the violation thereof (see Tzemah v. Minister of Defence [7], at p. 273; Menahem v. Minister of Transport [27], at p. 258; HCJ 5016/96 Horev v. Minister of Transport [28], at p. 52 {206}). When a central right — such as life, liberty, human dignity, property, privacy — is violated, the purpose should realize a significant social goal or an urgent social need (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [26], at para. 62 of my opinion).

29. In addition to the proper purpose, there are the proportionate means. It is insufficient that the purpose of the statute is a proper one. The means that are adopted to realize it should be proper ones. The means are proper is they are proportionate. The principle of proportionality is based on the outlook that ‘the end does not justify the means’ (per Justice T. Or in Oron v. Knesset Speaker [8], at p. 465); see also Movement for Quality Government in Israel v. Knesset [9], at para. 47 of my opinion). In a host of cases, this court has consistently held that proportionality is determined by three subtests (see A. Barak, A Judge in a Democracy (2004), at p. 346). The use of the subtests is affected by the nature of the right being violated, the degree of the violation thereof and the importance of the values and interests that the violation is intended to realize. The first subtest is the rational connection test or the suitability test. The means that the statute adopts should be suited to realizing the purpose that the statute seeks to realize. The second subtest is the least harmful measure test or the necessity test. It demands that the statute that violates a constitutional right should not violate it to a greater degree than is necessary in order to achieve the proper purpose. ‘The legislative measure can be compared to a ladder, which the legislator climbs in order to achieve the legislative purpose. The legislator must stop at the rung on which the legislative purpose is achieved and on which the violation of the human right is the least’ (Israel Investment Managers Association v. Minister of Finance [6], at p. 385; LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [29], at p. 405; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [30], at p. 840 {297-298}). The third subtest is the proportionate result test or the test of proportionality in the narrow sense. The benefit arising from achieving the proper purpose should be commensurate with the harm caused by the violation of the constitutional right (see Beit Sourik Village Council v. Government of Israel [30], at p. 850 {309-310}; Marabeh v. Prime Minister of Israel [3], at para. 116 of my opinion). This is an ethical test (see the opinion of Vice-President M. Cheshin in Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [26], at para. 107). It focuses on the outcome of the legislation, and the effect that it has on the constitutional human right. It is a balancing principle.

30. With regard to the three subtests of proportionality, we should point out the following: first, there is a major difference between the first and second subtests and the third subtest. The first two subtests — the rational connection and the least harmful measure — focus on the means of realizing the purpose. If it transpires, according to these, that there is a rational connection between realizing the purpose and the legislative measure that was chosen, and that there is no legislative measure that is less harmful, the violation of the human right — no matter how great — satisfies the subtests. The third subtest is of a different kind. It does not focus merely on the means used to achieve the purpose. It focuses on the violation of the human right that is caused as a result of realizing the proper purpose. It recognizes that not all means that have a rational connection and are the least harmful justify the realization of the purpose. This subtest seeks in essence to realize the constitutional outlook that the end does not justify the means. It is an expression of the concept that there is an ethical barrier that democracy cannot pass, even if the purpose that is being sought is a proper one. Second, the three subtests do not always lead to the same outcome. On more than one occasion there is a margin of possibilities that satisfy the proportionality tests to a greater or lesser degree. The fundamental approach is that any possibility that the legislature chooses is constitutional, if it falls within the margin of proportionality. This is the constitutional margin of appreciation given to the legislature within the limits of the margin of proportionality (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [5], at p. 438; Menahem v. Minister of Transport [27], at p. 280; AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [31], at p. 815; Gaza Coast Local Council v. Knesset [4], at pp. 550, 812; Movement for Quality Government in Israel v. Knesset [9], at para. 61 of my opinion; Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [26], at para. 77 of my opinion).

(2) The constitutionality of section 5B of amendment 7

31. The question of the constitutionality of s. 5B of amendment 7 arose before us in a marginal manner only. The parties focused their main arguments on the provisions of s. 5C. They did not discuss s. 5B at length. We were not presented with any cases in which the question of its application arose. All of this reflects upon the question of the constitutional of the section. In these circumstances, as long as these questions have not been properly addressed, the time has not come to decide the constitutionality of s. 5B. Much depends on the manner in which it is implemented and the interpretation that is given to the provisions of the section. Thus, for example, we have heard no argument on the question whether the correct interpretation of the section includes a causal relationship between the activity and the membership of the terrorist organization or what was done on its behalf and the damage suffered by the injured parties. Naturally the parties have the right to raise their arguments concerning the constitutionality of s. 5B in so far as it will arise in specific cases. The civil courts are competent, in specific tort cases, to examine arguments concerning the constitutionality of the section. In the circumstances of this case, we see no reason to decide the question of the constitutionality of s. 5B of amendment 7.

(3) The constitutionality of s. 5C of amendment 7

32. Section 5C of amendment 7 provides that the state is not liable in torts for damage that is caused in a conflict zone as a result of an act done by the security forces. This rule has several exceptions. The exclusion of liability does not depend on the identity of the injured party but on the fact that the damage occurred in a conflict zone. The purpose underlying this provision was addressed by the respondents before us:

‘The main purpose of the amendment, which justifies a restriction of claims that are filed for damage caused in a conflict zone, is to adapt the law of torts to the special characteristics of the war with the Palestinians. Within this framework, the amendment also seeks to prevent an improper and unjust outcome that Israel should be liable for the damage of Palestinian inhabitants, in addition to being liable for the huge damage caused to the Israeli side’ (para. 275 of the respondents’ reply of 6 July 2006).

The respondents’ position is that the law of torts was designed to regulate ‘risk management for harmful acts in ordinary life within a given society’ (para. 26). It is not suited to dealing with damage caused in a time of war. There are several reasons for this:

‘First, the risks in times of war are different from those in times of peace. We are speaking of risks to the soldiers and risks to the state if they fail in their operations… Second, in war the scale of the damage is greater, and sometimes it is caused during a short period… Third, in times of war many soldiers and citizens are harmed… Fourth, war is, as a rule, a confrontation between states, or between a state and organizations, who operate from within the territory of another state… Fifth, litigating a claim in torts is not completely practical with regard to damage that is caused in war, or it encounters many difficulties… Sixth, the law of torts naturally examines a given incident on the basis of a specific and particular set of facts… Therefore, for all of the aforesaid reasons, there is no basis for applying the law of torts to war damage’ (para. 33 of the respondents’ reply of 6 July 2006).

This background gives rise to the question whether the provisions of s. 5C of amendment 7 are constitutional. As we have seen, they violate the rights of a Palestinian who was injured in a conflict zone by a tortious act of the security forces. Before amendment 7 was enacted, the state was liable to Palestinians in conflict zones if the tortious act was caused by a non-combatant activity of the security forces. Now the law provides that the state is not liable in torts for damage caused in a conflict zone as a result of an act carried out by the security forces, irrespective of the question whether the tortious act was caused by a ‘combatant activity’ or a non-combatant activity. This restriction of the state’s liability has violated the constitutional right of the Palestinian (or his heirs or estate) who was injured by a tortious act that was caused by a non-combatant activity. Does this violation of the constitutional right satisfy the provisions of the limitations clause?

33. Is the purpose underlying the provisions of s. 5C of amendment 7 a proper purpose? In my opinion, the answer to this question is yes. Indeed, the ordinary law of torts was not designed to contend with tortious acts that are caused during the combatant activities of the security forces outside Israel in an armed conflict. Excluding liability in torts in situations of ‘combatant activity’ is also accepted in other legal systems (for a survey, see Yaakov, ‘Immunity under Fire: State Immunity for Damage caused as a result of “Combatant Activity”,’ supra, at pp. 115-125). An arrangement whose purpose is to adapt the law of torts to the special circumstances that prevail during the combatant activity of the security forces is an arrangement that is intended for a proper purpose. I discussed this in Bani Ouda v. State of Israel [1]:

‘Combatant activities that cause harm to the individual should not be tried according to the ordinary law of torts. The reason for this is that combatant activities create special risks which should be addressed outside the framework of ordinary tort liability… Combatant activities create, by their very nature, risks that the “ordinary” law of torts was not designed to address. The purposes underlying the ordinary law of torts do not apply when the damage derives from combatant activity that the state is waging against its enemies… It should be noted that the approach is not that “combatant activity” is beyond the reach of the law. The approach is that the problem of civil liability for combatant activities should be determined outside the scope of the classical law of torts’ (ibid. [1], at p. 6).

34. Is s. 5C of amendment 7 proportionate? The first subtest, which concerns a rational connection between the proper purpose and the provisions of s. 5C, is satisfied. The exclusion of liability in torts provided by s. 5C of amendment 7 removes the damage caused by the security forces in a conflict zone from the scope of the ordinary law of torts. This realizes the proper purpose that amendment 7 sought to achieve.

35. Does s. 5C of amendment 7 satisfy the second subtest of proportionality? According to this test, the statute should adopt the measure that is least harmful. Does s. 5C satisfy this constitutional requirement? My answer is that it does not. In order to realize the purpose underlying s. 5C of amendment 7, it is sufficient to provide legal arrangements that the state is exempt from liability for combat activities. The ordinary law of torts is not suited to addressing liability for tortious acts in the course of combat. Arrangements of this kind were provided in s. 5 of the original Torts Law, which determined that the state is not liable in torts for an act done in the course of the combatant activity of the Israel Defence Forces. Amendment 4 extended the definition of ‘combatant activity’ beyond the scope that was given to it in decisions of the courts. It was provided in amendment 4 that combatant activity includes ‘any act of combating terror, hostilities or an uprising, as well as an act for the prevention of terrorism, hostilities or an uprising that was carried out in circumstances of risk to life or body.’ It further provided that notice of the damage must be given within sixty days; it shortened the prescription period and it ruled out the application of laws that transfer the burden of proof to the state. This amendment is proportionate, and it does not give rise to any constitutional difficulty. It realized the purpose underlying amendment 7, which is the need ‘to adapt the law of torts to the special characteristics of the war with the Palestinians’ (para. 27 of the respondents’ reply of 6 July 2006). Amendment 7 goes far beyond this. It excludes liability in torts for all damage that is caused in a conflict zone by the security forces, even as a result of acts that were not done in the course of the combatant activity of the security forces. This amplification of the state’s exemption from liability is unconstitutional. It does not adopt the least harmful measure that achieves an exemption from liability for combatant activities. It releases the state from liability for tortious acts that are in no way related to combatant activities, no matter how broadly the term is defined. Nothing in the ordinary activities of law enforcement that are carried out by the security forces in a territory controlled by them justifies an exclusion from the ordinary law of torts. This is certainly the case when the tortious act is totally unrelated to security activity. Only combat activities justify, as the purpose of amendment 7 indicates, an exclusion of the arrangements in the ordinary law of torts. Excluding tortious acts in which the security forces are involved but which have no combatant aspect does not realize the proper purpose of adapting the law of torts to combat situations. It seeks to realize an improper purpose of exempting the state from all liability for torts in conflict zones. This is certainly the case in view of the retroactive nature of this provision.

36. Section 5C of amendment 7 rules out any liability in torts on the part of the state with regard to any claim in torts that was filed with regard to an incident that occurred in a ‘conflict zone.’ From the respondents’ statement it appears that after the enactment of amendment 7, large areas of the territories of Judaea, Samaria and the Gaza Strip were declared conflict zones for lengthy periods. The territories were divided into several large districts. Sometimes one district encompasses whole cities or several villages and towns. According to the criteria that were determined in this regard, it was sufficient for one terrorist incident to occur in one part of a certain district in order to declare the whole district a conflict zone for several days. In these circumstances, the exclusion of the state’s liability under s. 5C causes a major violation of constitutional human rights. We should remember that the territories of Judaea and Samaria, and until August 2005 also the territory of the Gaza Strip, have been subject to a belligerent occupation for almost forty years. Thus the Israeli security forces are present in the territories on a constant basis and in large numbers. The inhabitants of the territories come into close contact with them on a regular and daily basis, on their way to and from work and school, at checkpoints and roadblocks inside the territories and at crossings into and out of Israel. The security forces have a fixed and permanent presence in the territories. They are deployed and operate in the territories both in combatant activities and in activities that have the character of law enforcement, both in areas where there is terrorist activity and in quiet areas, both in times of conflict and in times of relative calm. In these circumstances, a sweeping immunity of the kind given to the state by s. 5C of amendment 7 means that the state is given an exemption from liability in torts with regard to many kinds of operations that are not combatant activities even according to the broad definition of this term. This means that many injured persons, who were not involved in any hostilities whatsoever and who were injured by operations of the security forces that were not intended to contend with any hostile act, are left without any relief for the injury to their lives, persons and property. This sweeping violation of rights is not required in order to realize the purposes underlying s. 5C of amendment 7. Exempting the state from liability under s. 5C does not ‘adapt the law of torts to the state of war.’ It excludes from the scope of the law of torts many acts that are not combatant ones. It is inconsistent with Israel’s duty that arises from its belligerent occupation in Judaea, Samaria and the Gaza Strip. This occupation imposes on the state special duties under international humanitarian law, which are inconsistent with a sweeping immunity from all liability in torts. We are not adopting any position — since the matter did not arise before us — with regard to changes that may arise from the Oslo accords (see Gaza Coast Local Council v. Knesset [4], at pp. 523-524; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [32], at p. 364 {96}). Obviously we are making no determination with regard to the legal status of the Gaza Strip after the disengagement. Even if Israel’s belligerent occupation there has ended, as the state claims, there is no justification for a sweeping exemption from liability in torts.

37. Indeed, the proportionate approach is to examine each incident on a case by case basis. This examination should consider whether the case falls within the scope of ‘combatant activity,’ however this is defined. It is possible to extend this definition, but this case by case examination should not be replaced by a sweeping exemption from liability. I discussed this in Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [26]:

‘The need to adopt the least harmful measure often prevents the use of a blanket prohibition. The reason for this is that in many cases the use of a criterion of an individual examination achieves the proper purpose while using a measure whose violation of the human right is less. This principle is accepted in the case law of the Supreme Court… A blanket prohibition of a right, which is not based on an individual check, is a measure that raises a suspicion of being disproportionate. This is the case in our law. It is also the case in comparative law’ (ibid. [26], at paras. 69-70 of my opinion).

This approach was accepted by additional justices in that case. The vice-president (Justice M. Cheshin) said that the question is whether it is possible to create ‘a mechanism of an individual check for every resident of the territories who is a spouse or parent of an Israeli citizen, instead of imposing a blanket prohibition on all the residents of the territories who are of certain ages’ (ibid. [26], at para. 105 of his opinion). Justice D. Beinisch said that ‘Not carrying out an individual check and determining a blanket prohibition gives too wide a margin to the value of security without properly confronting it with the values and rights that conflict with it’ (ibid. [26], at para. 11 of her opinion). Similarly, Justice E. Hayut said that:

‘… security needs, no matter how important, cannot justify blanket collective prohibitions that are deaf to the individual… there is certainly a basis for a presumption of dangerousness that the respondents wish to impose in this matter of family reunifications between Arab citizens of Israel and residents of the territories. Notwithstanding, in order that the fear of terror does not mislead us into overstepping our democratic limits, it is proper that this presumption should be rebuttable within the framework of an individual and specific check that should be allowed in every case…’ (ibid. [26], at paras. 4-5 of her opinion).

Justice A. Procaccia emphasized in her opinion that:

‘We should beware of the lurking danger that is inherent in a sweeping violation of the rights of persons who belong to a particular group by labelling them as a risk without discrimination… we should protect our security by means of individual scrutiny measures even if this imposes on us an additional burden…’ (ibid. [26], at para. 21 of her opinion).

Justice M. Naor said that ‘… I do not dispute the importance of making an individual check, where this is possible… As a rule I accept that a violation of a basic right will be suspected of being disproportionate if it is made on a sweeping basis rather than on the basis of an individual check’ (ibid. [26], at para. 20 of her opinion). Justice E. Rivlin also emphasized the importance of the individual check, but he thought in that case that such a check would not realize the purpose of the law. Justice E. Levy emphasized in his opinion that ‘… in the final analysis there will be no alternative to replacing the blanket prohibition in the law with an arrangement based on an individual check…’ (ibid. [26], at para. 9 of his opinion). The case before us is different from Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [26]. Notwithstanding, there are similarities between the two. In both cases very important human rights were violated. Amendment 7 denies the right to compensation, and thereby it is likely to result in the injured person or his family becoming destitute. In both cases, the state chose a sweeping denial (‘the state is not liable in torts’) to an individual check on a case by case basis to discover whether ‘combatant activity’ is involved. In Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [26] it was argued that it was not possible to realize the purpose of the statute by means of an individual check. This argument cannot be made in the case before us. The individual check is capable of realizing the purpose of the statute.

38. The state addressed extensively in its written pleadings the arrangements that prevail in comparative law in this matter. A study of the state’s claims shows that in the countries surveyed by the state in its pleadings, the arrangements prescribed with regard to the liability of the state in torts are similar to the arrangement provided in amendment 4, whereas the sweeping arrangement provided in amendment 7 is unprecedented. Thus, for example, in American law, the Federal Tort Claims Act recognizes, alongside the general liability of the Federal government in torts, an exception that releases the state from liability in torts for combatant activities. But this exception is limited to acts of the security forces in a time of war (section 2680(j)). Admittedly this section has been interpreted broadly. It has been held that a ‘state of war’ prevails even in a period of significant hostilities between the United States army and other military forces, and that ‘combatant activities’ include both the actual combat operations and activities that are directly related to them (Koohi v. United States [35]). But even with its broad interpretation, this section provides arrangements that are similar in essence to the arrangement provided in amendment 4, and not the sweeping immunity provided in amendment 7. The same is true in English law, which recognizes the immunity of the state with regard to tort claims arising from combatant activities (combat immunity). In the words of Sir Iain Glidewell, ‘… during the course of hostilities, no duty of care is owed by a member of the armed forces to civilians or their property…’ (Mulcahy v. Ministry of Defence [37]). Even this immunity from liability has been interpreted broadly, but without resorting to a sweeping exemption:

‘[Combat immunity] must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. But the real distinction does exist between active operations against the enemy and other activities of the combatant services in time of war’ (Bici v. Ministry of Defence [38]).

That case (in 2004) concerned a claim in torts of Albanians living in Kosovo who were injured by gunfire from British troops who were in Kosovo as part of the NATO force sent there. The court held that the soldiers were negligent in that they violated the rules of engagement, and in the circumstances of the case, it rejected the state’s contention that it should enjoy combat immunity. Thus we see that the arrangement in English law is also similar in essence to the arrangement provided in amendment 4. State immunity from liability for combatant activities is the broadest in Canadian law. Section 8 of the Crown Liability and Proceedings Act provides that:

‘… nothing in those sections makes the Crown liable in respect of anything done or omitted in the exercise of any power or authority exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of Canada or of training, or maintaining the efficiency of, the Canadian Forces.’

This clause excludes the liability of the state in tort claims that arise from actions of the Canadian army that are done in order to defend Canada, whether in time of peace or of war, and whether it is actually a combatant activity or training for it. But even this broad arrangement does not give the state a sweeping immunity, and the state needs to show that the activity of the security forces that caused the damage was done in the defence of Canada. By contrast, in Israel the state is released from any burden of proof, and it is sufficient for it to show that the damage was caused in a conflict zone.

39. Section 5C has several exceptions. The second schedule of amendment 7 provides that the state’s immunity under s. 5C shall not apply to damage that is caused as a result of a criminal act, damage that is caused to someone who is held by the State of Israel in custody, damage that is caused as a result of an act of the civil administration that was not done within the framework of the conflict, and damage that is caused as a result of a road accident in which a vehicle of the security forces is involved but not in the course of operational activities. Do these exceptions to the general arrangement, which are stipulated in s. 5C, save it from being disproportionate? Are they capable of changing the conclusion with regard to the second subtest? My answer to this question is no. These provisos and exceptions cannot constitute a less harmful measure to human rights. On the contrary, if the immunity from liability that is provided in amendment 7 does not apply to these cases, why does it apply in other cases of torts that do not derive from ‘combatant activities’? If the liability for a ‘road accident’ in which a military vehicle is involved does not fall within the scope of the state’s immunity from liability, why in other accidents that are not road accidents is liability excluded in a sweeping manner without allowing an individual check? It is true that there are difficulties in producing evidence. But the way to overcome this is not to exclude liability, but to make individual checks and determine burdens of proof and shorter limitation periods.

40. Does s. 5C of amendment 7 satisfy the third subtest of proportionality, the test of proportionality in the narrow sense? Is the benefit to the public interest from excluding the state’s liability for the damage caused in a conflict zone commensurate with the loss caused to individuals who are injured as a result of tortious acts of the security forces? It should be noted that the question of proportionality in the narrow sense does not arise in all those cases where it transpires in the trial that no tortious act was committed at all, whether because there is no (conceptual or concrete) duty or because there is no carelessness or because there is no causal link or for any other reason (with regard to other torts). Moreover, the question of proportionality (in the narrow sense) does not arise at all with regard to a tortious act that was done as a result of ‘combatant activities’ of the security forces. The state is not liable in torts for this tortious act under the law that was in force before amendment 7. It follows that the question that we should ask ourselves is the following: is the benefit to the public interest that is afforded by excluding the state’s liability for a tort that was not caused by ‘combatant activities’ commensurate with the damage that is caused to someone who is injured as a result of this tort? We asked the respondents once again what public benefit is realized by amendment 7 that was not realized under the law of torts that preceded it, including amendment 4. We sought to ascertain in what additional circumstances does amendment 7 give the state immunity from liability, as compared with the legal position that preceded the amendment, and how do these realize the legislative purpose and the public interest. The following was the answer that we were given:

‘First, amendment 4 is an amendment that was prepared against the background of the Intifadeh that broke out in 1987. The draft of amendment 4 was tabled before the armed conflict broke out in the year 2000, and it was not intended at all to provide a solution to the unique nature of the armed conflict with the Palestinians. Indeed, amendment 4 also does not provide a solution to the armed conflict de facto. This is reflected in the fact that amendment 4 is a limited amendment. It deals mainly with the technical-procedural aspect of claims that arise in the territories. This amendment looks at the damage from within the law of torts. By contrast, amendment 7 is a substantial amendment.

The purpose of amendment 7 is different from the purpose of amendment 4. The amendment seeks to exclude war damage from the scope of the law of torts, and not to adapt the law of torts to war damage. The purpose of the amendment is mainly ethical. It is completely different from the purpose of amendment 4. Therefore amendment 4 on its own is insufficient.

Second, amendment 4 does not address claims of enemy aliens and claims of members of a terrorist organization at all, and therefore for this reason also amendment 4 is insufficient.’

In my opinion, these reasons are unconvincing. First, it was not made clear how the date of preparing the legislation is relevant to the question of the public benefit that the legislation realizes and why amendment 4 does not also provide a legal solution to the conflict that broke out in the year 2000. Second, the assertion that amendment 4 is technical-procedural is unacceptable. Amendment 4 made a major change to the definition of the term ‘combatant activity.’ The definition greatly broadened the interpretation given to this term in case law, and thereby significantly restricted the liability of the security forces operating in the conflict with the Palestinians. Third, we received no explanation of the significance of the distinction between ‘excluding war damage from the scope of the law of torts’ and adapting ‘the law of torts to war damage.’ With regard to the second reason given by the state, this relates solely to s. 5B of amendment 7.

41. The respondents also discussed the general benefit of amendment 7:

‘The amendment restores the balance in the law of torts, and adapts it to the new circumstances of war. It enshrines ethical principles and solves practical difficulties in implementing the existing law. It enshrines the principle that in times of conflict each side is liable for its own damage, and it prevents the outcome, which currently exists, in which Israel is compelled to bear a double burden of claims for war damage suffered both by its own citizens and also by the inhabitants of the Palestinian Authority.’

These remarks also do not answer the question as to how exempting the state from liability for committing tortious acts that do not fall within the scope of ‘combatant activities,’ as defined in amendment 4, realizes a public benefit from an ethical viewpoint. Prima facie, the immunity from liability for ‘combatant activities’ in its broad sense is sufficient in order to adapt the law of torts to a situation of war and in order to release the state from the burden of liability for claims arising from war damage. It would appear that the main benefit does not lie in realizing these purposes, but in releasing the state from conducting legal proceedings in order to determine the question of whether there were ‘combatant activities.’ Indeed, giving the state a sweeping immunity makes it unnecessary to conduct many proceedings in which the state is required to prove that the damage for which it is being sued was caused by combatant activities. But this benefit to the public interest — a benefit that lies mainly in a savings of administrative resources — is disproportionate in comparison to the damage to the various individuals, which was caused by non-combatant activities. This damage often involves great suffering. Injured parties suffer major injuries; they become seriously disabled; their ability to earn a livelihood is significantly impaired. All of these — and of course the loss of life — are far greater than the limited benefit that arises from releasing the state from liability and from the need to defend its position in court, both when the damage is caused by combatant activities and when it is caused by non-combatant activities.

42. Amendment 7 established a committee that was authorized ‘… to approve, beyond the letter of the law, in special circumstances, a payment to an applicant to whom subsection (a) applies and to determine the amount thereof…’ (s. 5C(b)(1)). It was also provided that ‘The Minister of Defence, in consultation with the Minister of Justice and with the approval of the Constitution, Law and Justice Committee of the Knesset, shall determine the preconditions for submitting an application to the committee, the manner of submitting the application, the work procedures of the committee and the criteria for making payments beyond the letter of the law’ (s. 5C(b)(3)). Do the existence of this committee and its payments of compensation make the arrangements in s. 5C of amendment 7 proportionate? My answer is no. Naturally, where the disproportionality is based on the absence of a ‘beyond the letter of the law’ arrangement, the provision of such an arrangement can remove the disproportionality. But where the disproportionality in an arrangement arises from a disproportionate violation of human rights — and certainly when the rights that are violated are fundamental and important ones and the violation thereof is serious and painful — the violation does not become proportionate by means of a payment beyond the letter of the law. Someone who has been injured by a non-combatant activity of the security forces is entitled to compensation by law, and not to compensation beyond the letter of the law. We should give him justice, not charity. Of course, the state would act meritoriously if it considered making payments beyond the letter of the law to someone who is seriously injured as a result of ‘combatant activities’ of the security forces, in circumstances where the state thinks that a charitable payment is justified (cf. the remarks of Vice-President M. Cheshin in Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [26], at para. 126 of his opinion).

The result is that we deny the petitions in so far as the constitutionality of s. 5B of amendment 7 is concerned. We grant the petitions and make the order nisi absolute, in so far as the constitutionally of s. 5C of amendment 7 is concerned. This section is void.

 

 

President D. Beinisch

I agree with the opinion of President Emeritus A. Barak.

 

 

Justice A. Procaccia

I agree with the opinion of my colleague, President Emeritus A. Barak.

 

 

Justice E.E. Levy

I agree with the opinion of the honourable President Emeritus A. Barak.

 

 

Justice M. Naor

I agree with the opinion of my colleague, President Emeritus Barak.

 

 

Justice S. Joubran

I agree with the opinion of my colleague, President Emeritus A. Barak.

 

 

Justice E. Hayut

I agree with the opinion of my colleague, President Emeritus A. Barak.

 

 

Justice D. Cheshin

I agree with the opinion of my colleague, President Emeritus Barak.

 

 

Justice A. Grunis

1.             I agree with the outcome in the opinion of my colleague, President Emeritus A. Barak. My agreement with the outcome derives mainly from the fact that the respondents did not address, and certainly did not address satisfactorily, two main questions: first, what — under the rules of private international law — is the substantive law that governs claims filed in Israel against the state and its agencies for acts outside Israel? Second, do the Basic Laws have extra-territorial application? It should be noted that the respondents raised certain arguments that my colleague, President Emeritus A. Barak, did not address, even though I am of the opinion that they should be mentioned with regard to these two questions. I am referring to various arrangements in English and American law, which I shall address below, that apply to factual situations that are relevant to our case and that may prevent the courts from giving relief.

2.             One of the first questions that are relevant to an action filed in an Israeli court with regard to an incident that occurred outside the borders of Israel concerns the substantive law that should be applied. This question also arises in every case of a tort action that is brought before an Israeli court with regard to an incident that occurred in Judaea and Samaria. The cases under discussion can be of many different kinds. Thus it is possible that an Israeli citizen who works for an Israeli employer in an Israeli settlement in Samaria is injured in a work accident and files an action on account of this in the court in Israel. A small change in the facts presents a case in which the worker who is injured is a Palestinian. Another possibility, which brings us closer to the cases addressed in the petitions, concerns a claim filed by a Palestinian resident of Samaria on the grounds that he was injured by the gunfire of IDF soldiers. In each of these examples, the court is supposed to consider the question of which law will apply to the claim under the rules of private international law. My colleague, the president emeritus, says that under the conflict of law rules that are practised in Israeli law, the Israeli law of torts applies to actions of the security forces in the territory of Judaea and Samaria. In my opinion, the answer to this question is not so clear. CA 1432/03 Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [19] (an application for a further hearing was denied: CFH 9524/04 Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [33]) comprehensively considered the position of Israeli private international law with regard to a tortious act that took place in the aforesaid territory. It was held that the rule is that the law of the place where the tort was committed (lex loci delicti commissi) applies. Therefore in principle Jordanian law should apply. The aforesaid rule is subject to a rare exception, according to which the court should apply the law of the country that has the closest connection with the tort (Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [19], at pp. 374-375, 377). Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [19] concerned an action of a Palestinian woman that was filed in a court in Israel. The plaintiff was injured in a work accident, while working at a plant of an Israeli company that was situated in an Israeli town in Samaria. The Israeli aspects of the case — an Israeli employer, an Israeli plant that was situated in an Israeli town in the territories — led the court to say that ‘the exception begs to be applied’ (ibid. [19], at p. 378). Therefore in that case it was held that the Israeli law of torts would apply, rather than the Jordanian law. Indeed, as my colleague President Emeritus A. Barak says, claims of Palestinians against the state for alleged tortious acts of the security forces have been tried for years under Israeli law. It is to be wondered why in those cases the state did not raise the argument that the substantive law that should apply, under the conflict of law rules, is the law of the place where the tort was committed. This argument was also not raised in the petitions before us. It is possible that a determination that Jordanian law applies would make it unnecessary to consider the constitutional question. This would be the case if Jordanian law does not give rise to a cause of action in the situations that we are considering, as a result, for example, of an ‘act of state’ doctrine (paras. 6-7 below). If there was no right of action until amendment 7 of the Torts (State Liability) Law, 5712-1952 (hereafter — the Torts Law), under the law of the place where the tort was committed, it would not be possible to argue that the amendment denied an existing right and therefore no constitutional question would arise. Nonetheless, we should note that it would appear that the premise for changing the Torts Law in amendment 4 and amendment 7 was that the law of torts that applies with regard to claims concerning the activities of IDF soldiers in the territories is the Israeli law.

3.             The other main question that should be considered is the question of the application of the Basic Laws — in this case the Basic Law: Human Dignity and Liberty — to events that occur outside the borders of Israel. According to the approach of my colleague President Emeritus A. Barak, there is no need to consider the aforesaid question. According to his position, the rights of Palestinians who are inhabitants of the territories ‘are rights that are granted to them in Israel’ and amendment 7 of the Torts Law violates those rights. And why are these rights that are granted to them in Israel? It is because under Israeli private international law they may, in certain circumstances, sue in Israel under the Israeli law of torts for tortious acts that were committed outside Israel (para. 23 of the opinion). We have already seen (para. 2 supra) that the conflict of law rules in Israel provide that the law of the place where the tort was committed should apply. When we are dealing with the territory of Judaea and Samaria, the significance of this is that we should refer to Jordanian law. Indeed, the aforesaid rule is subject to an exception, as was indeed held in Yinon Food Products Manufacture and Marketing Ltd v. Kara’an [19]. For the purpose of considering this question I am prepared to assume that the conflict of law rules in Israel lead to the application of the Israeli law of torts with regard to an incident in which a Palestinian is injured as a result of shooting by IDF soldiers. According to the approach of my colleague the president emeritus, ‘The rights in Israel under the law of torts were taken away from the inhabitants of the territories for tortious acts done by the security forces in a conflict zone. The effect of amendment 7 is therefore in Israel. It violates rights that the injured parties from the territories had in Israel’ (para. 23 of his opinion). This leads my colleague to conclude that there is no need to consider the question of the application of the Basic Law outside the borders of Israel. I cannot agree with this.

Let us remember that we are dealing with events that took place outside the borders of Israel. Even if according to the conflict of law rules the Israeli law of torts applies to those events, this does not change the place where the tort was committed. Applying the Israeli law of torts does not create a fiction whereby the event occurred in Israel. The mere fact that the matter is tried before an Israeli court, under Israeli law, cannot lead to the conclusion that the rights are given to the injured parties in Israel. If you say this, then you arrive at a far-reaching conclusion that the Basic Laws apply to every proceeding that takes place in an Israeli court where the conflict of law rules determine that Israeli law applies. No connection should be made between the rules of Israeli private international law and the scope of application of the Basic Laws. Therefore it would appear that we need first to decide the question of the extraterritorial application of the Basic Law: Human Dignity and Liberty. However, since the respondents stated that in their opinion no decision on this question is required, there is no reason to address it in the present case. It would appear that it will be necessary to address the issue in the future, if an argument is presented before the courts.

4.             Ultimately we are determining that s. 5C of the Torts Law is unconstitutional. By contrast, we are not deciding the question of the constitutionality of s. 5B of the law. It can be assumed that this question will be brought before the courts again. In the opinion of my colleague President Emeritus A. Barak, section 5B of the Torts Law applies, ‘according to its wording, to tortious acts done in Israel.’ This leads to his conclusion that the question of the application of the Basic Law does not arise. I would point out that a careful reading of section 5B shows that it is indeed possible that it will also apply to tortious acts committed by the state and those acting on its behalf outside Israel. Therefore it is possible that in the future it will be necessary to consider the question of the application of the Basic Laws with regard to the aforesaid section as well.

5.             In consequence of the finding that the Basic Law applies in this case, my colleague goes on to consider the question whether amendment 7 of the Torts Law violates a right that is included in the Basic Law. His conclusion is that such a violation does indeed exist with regard to the right to life, liberty, dignity, privacy and property. My colleague adds that ‘Denying or restricting liability in torts undermines the protection of these rights’ (para. 25). I am prepared to agree that in the present case a basic right has been violated. This is because of the broad application of s. 5C of the Torts Law. Notwithstanding, I cannot agree that any restriction or denial of liability in torts will constitute a violation of a constitutional right, just as I cannot accept that every new criminal norm or stricter penalty constitutes a violation of a constitutional right (CrimA 4424/98 Silgado v. State of Israel [34], at pp. 553-561 (per Justice T. Strasberg-Cohen); see also para. 2 of my opinion in HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [26]).

6.             The respondents mentioned in their arguments arrangements that exist in foreign law, even though they did not go so far as to claim that those arrangements constitute in themselves a response to the petitions. Thus the respondents raised an important doctrine that exists in English law, the act of state doctrine. According to this doctrine, certain acts of the state and its agents may not be tried in the English courts, if they were committed outside the borders of the state with regard to persons who are not British nationals. These also include acts of a violent nature that are committed by the state and its agents (see H.W.R. Wade & C.F. Forsyth, Administrative Law (ninth edition, 2004), at pp. 838-840; O. Hood Phillips & Jackson, Constitutional & Administrative Law (eighth edition, 2001), at pp. 320-326; Halsbury’s Laws of England, vol. 18(2) (fourth edition, 2000), at pp. 452-455; see also CA 5964/92 Bani Ouda v. State of Israel [1], at p. 7, and A. Yaakov, ‘Immunity under Fire: State Immunity for Damage Caused as a Result of “Combatant Activity”,’ 33(1) Hebrew Univ. L. Rev. (Mishpatim) 107 (2003), at pp. 124-125 and the references cited there). The scope of the doctrine’s application is unclear. It also appears that there is now a trend to limit its application (Yaakov, ‘Immunity under Fire,’ supra, at p. 194). In American law there is a similar rule to that of an act of state, by virtue of a specific provision of statute. Section 2680(k) of the Federal Tort Claims Act provides that the government of the United States shall not be liable ‘for any claim arising in a foreign country.’ The American rule, like the English doctrine, is not limited to acts carried out by military forces nor is it limited to combatant activities. Thus the United States Supreme Court has held that it is not possible to file a claim in torts in an American court against the United States government and agents of the Drug Enforcement Administration with regard to their liability for the abduction of a Mexican citizen from Mexico to the United States (Sosa v. Alvarez-Machain [36]).

7.             The act of state doctrine is part of English common law. Therefore it was prima facie incorporated into Israeli law. One might argue that even if it was incorporated, it was abolished by the enactment of the Torts Law. It is well known that this law was intended to replace the common law rule that the state has immunity in torts. It would appear, without making a firm determination, that the enactment of the law did not abolish the act of state doctrine, just as that doctrine was not abolished in England by the Crown Proceedings Act 1947. It should be remembered that the doctrine applies to acts that are carried out outside the jurisdiction of the state. Indeed, s. 5A of the Torts Law expressly addresses the territories, i.e., Judaea, Samaria and the Gaza Strip, and therefore it seems that the aforesaid doctrine does not apply in the territories. We should point out, in passing, that the aforesaid s. 5A was adopted when Israel was in control of Gaza. It may be asked whether there is any need today for the aforesaid provision following the withdrawal from Gaza, if the act of state doctrine applies to that area. In any case, it is possible that the doctrine will apply in other places outside the state, as for example with regard to the combat activities that took place last summer in Lebanon or acts of Israel’s secret services outside the state. It should also be noted that it is possible that a hint of the act of state doctrine may be found in the provisions of s. 9A of the Torts Law, which was adopted in amendment 7. The section provides that ‘Nothing in the provisions of sections 5B and 5C shall derogate from any defence, immunity or exemption given to the State of Israel under any law.’ We should add that the act of state doctrine may apply in addition to the statutory rule that exempts the state from liability in torts ‘for an act that was done by a combatant activity of the Israel Defence Forces’ (s. 5 of the Torts Law). Even if the act of state doctrine has no relevance to the matters that arose in the petitions, it is possible that it will be important in future cases.

8.             Since the respondents did not address central questions, and since in practice they agreed, if only by implication, that the tort actions under discussion are subject to Israeli law and that there is no need to consider in this case the extraterritorial application of the Basic Law, I can only agree with the outcome proposed by my colleague President Emeritus A. Barak. It would appear that the time will come for deciding the aforesaid questions.

 

 

Petition granted.

21 Kislev 5767.

12 December 2006.

CrimA 5121/98

Private (res.) Raphael Yissacharov

v.

1.            Chief Military Prosecutor

2.            Attorney-General

3.            National Public Defender’s Office

4.            Israel Bar Association

 

 

The Supreme Court sitting as the Court of Criminal Appeals

[4 May 2006]

Before President A. Barak, Vice-President Emeritus M. Cheshin and

Justices D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, A. Grunis,

M. Naor, S. Joubran

 

Appeal of the judgment of the Appeals Court Martial (General I. Schiff, Brigadier-General M. Finkelstein, Colonel (res.) Y. Kedmi) on 13 May 1998 in case no. 139/97/9.

 

Facts: While being admitted into prison for being absent from the army without leave, the appellant was found to have a dangerous drug in his possession. When he was interrogated about this, the interrogator failed to advise the appellant that he had a right to consult a lawyer. This omission, which was omitted by the prosecution, was held by the trial court to have been illegal and intentional. In the course of the interrogation, the appellant confessed that he had, on three occasions while he was a soldier, made use of dangerous drugs.

The appellant argued that the confession should not be admissible in evidence, because it was made in consequence of the interrogator failing to advise him of his right to consult a lawyer. Under Israeli law there was no statutory or case law precedent for the exclusion of evidence because of the illegal method of obtaining it, but the appellant argued that the court should adopt such a doctrine, in the spirit of the Basic Law: Human Dignity and Liberty, which was enacted in 1992.

 

Held: (Majority opinion — Justice Beinisch, President Barak, Vice-President Emeritus Cheshin and Justices Rivlin, Procaccia, Levy, Naor and Joubran) In view of the normative change in the Israeli legal system introduced by the Basic Law: Human Dignity and Liberty, and in the absence of legislation on this issue, the time has come to adopt a case law doctrine of inadmissibility for illegally obtained evidence. The appropriate doctrine for the Israeli legal system to adopt is not an absolute doctrine, but a relative doctrine of inadmissibility, which allows the court to exclude illegally obtained evidence at its discretion.

The criterion for excluding illegally obtained evidence is that the evidence should be excluded if admitting it would substantially violate the right of the accused to a fair trial, considering the circumstances of each case on its merits. This doctrine is therefore a ‘preventative’ one, rather than a ‘remedial’ one. Its aim is to prevent a violation of the right of the accused to a fair trial, rather than to educate and deter the police authorities from future violations of the law.

Factors that should be taken into account when the court exercises its discretion are the character and seriousness of the illegality that was involved in obtaining the evidence, the seriousness of the offence, the degree to which the improper investigation method affected the evidence that was obtained and the social damage and social benefit involved in excluding the evidence.

The case law doctrine of the inadmissibility of illegally obtained evidence is a general one and it applies to all types of evidence, including defendants’ confessions, notwithstanding the statutory arrangement regarding defendants’ confessions in s. 12 of the Evidence Ordinance [New Version].

In the specific case of the appellant, the failure to inform him of his right to consult a lawyer was intentional, and this was a significant factor in reaching the decision to exclude the confessions he made in the interrogation.

(Minority opinion — Justice A. Grunis) It is questionable whether a broad doctrine of the inadmissibility of illegally obtained evidence should be adopted in case law rather than in legislation.

In the specific case of the appellant, in view of the fact that the police interrogator did advise the appellant of his right to remain silent, the failure to advise him of his right to consult a lawyer should not be sufficient to justify an exclusion of the confessions. The significance of the intentional nature of the failure to advise the appellant of his right to consult a lawyer was questionable, both because the doctrine being adopted does not have an educational-deterrent purpose, and because it is hard to conceive of such an omission by a professional interrogator being unintentional.

 

Appeal allowed, by majority opinion (Justice Beinisch, President Barak, Vice-President Emeritus Cheshin and Justices Rivlin, Procaccia, Levy, Naor and Joubran), Justice Grunis dissenting.

 

 

 

Legislation cited:

Basic Law: Freedom of Occupation, s. 10.

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 4, 5, 9, 10, 11.

Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, ss. 28(a), 32, 32-36, 32(a) 34(a), 34(b), 34(c).

Criminal Procedure (Interrogation of Suspects) Law, 5762-2002, s. 16(b).

Criminal Procedure Law (Amendment no. 15), 5741-1981.

Criminal Procedure Law [Consolidated Version], 5742-1982, s. 29.

Dangerous Drugs Ordinance [New Version], 5733-1973, ss. 7(a), 7(c).

Eavesdropping Law, 5739-1979, s. 13.

Evidence Ordinance, s. 9.

Evidence Ordinance [New Version], 5731-1971, s. 12.

Military Jurisdiction Law, 5715-1955, ss. 227A, 227A(6) 227A1, 267, 316, 440I, 476, 477, 478.

Procedure (Attendance of Attorney-General) Ordinance [New Version], 5728-1968.

Protection of Privacy Law, 5741-1981, ss. 2, 32.

Public Defender’s Office Law, 5756-1995, ss. 18, 19, 19(a).

Rights of Victims of Crime, 5761-2001, s. 1.

 

Israeli Supreme Court cases cited:

[1]          CrimFH 9384/01 Al Nisasra v. Israel Bar Association (not yet reported).

[2]          CA 10425/03 State of Israel v. Sita Shasha (not yet reported).

[3]          HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel [2003] IsrSC 57(6) 285 (decision of 3 September 2003).

[4]          RT 7929/96 Kuzali v. State of Israel [1999] IsrSC 53(1) 529.

[5]          HCJ 249/82 Vaknin v. Appeals Court Martial [1983] IsrSC 37(2) 393.

[6]          CrimA 307/60 Yassin v. Attorney-General [1963] IsrSC 17(3) 1541.

[7]          CrimA 96/66 Tau v. Attorney-General [1966] IsrSC 20(2) 539.

[8]          CrimA 533/82 Zakkai v. State of Israel [1984] IsrSC 38(3) 57.

[9]          CrimA 334/86 Sabah v. State of Israel [1990] IsrSC 44(3) 857.

[10]        CrimA 747/86 Eisenman v. State of Israel [1988] IsrSC 42(3) 447.

[11]        HCJ 3412/91 Sufian v. IDF Commander in Gaza Strip [1993] IsrSC 47(2) 848.

[12]        HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [2004] IsrSC 58(2) 746.

[13]        LCA 5381/91 Hogla v. Ariel [1992] IsrSC 46(3) 378.

[14]        CrimA 1382/99 Balhanis v. State of Israel (unreported).

 

 

[15]        LCrimA 3445/01 Almaliah v. State of Israel [2002] IsrSC 56(2) 865.

[16]        LCrimA 8600/03 State of Israel v. Sharon [2004] IsrSC 58(1) 748.

[17]        CrimA 648/77 Kariv v. State of Israel [1978] IsrSC 32(2) 729.

[18]        CrimA 6613/99 Smirk v. State of Israel [1998] IsrSC 56(3) 529.

[19]        HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

[20]        CrimA 69/53 Sich v. Attorney-General [1953] IsrSC 7(2) 801.

[21]        CrimA 7335/05 Public Defender’s Office, Nazareth District v. State of Israel (not yet reported).

[22]        HCJ 453/94 Israel Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 425.

[23]        HCJ 6302/92 Rumhiya v. Israel Police [1993] IsrSC 47(1) 209.

[24]        CrimApp 5136/98 Manbar v. State of Israel (unreported).

[25]        CrimA 5614/92 State of Israel v. Mesika [1995] IsrSC 49(2) 669.

[26]        HCJ 5100/94 Public Committee Against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998 9] IsrLR 567.

[27]        CrimA 636/77 Levy v. State of Israel [1978] IsrSC 32(3) 768.

[28]        CrimA 4427/95 A v. State of Israel [1997] IsrSC 51(2) 557.

[29]        CrimFH 4342/97 El Abid v. State of Israel [1997] IsrSC 51(1) 736.

[30]        FH 3081/91 Kozali v. State of Israel [1991] IsrSC 45(4) 441.

[31]        CrimA 2/48 Al-Lodj v. Attorney-General [1948] IsrSC 1 92.

[32]        CrimA 242/63 Kariti v. Attorney-General [1964] IsrSC 18(3) 477; IsrSJ 5 203.

[33]        CrimA 270/65 Kasey v. Attorney-General [1965] IsrSC 19(3) 561.

[34]        CrimA 347/75 Hirsch v. State of Israel [1976] IsrSC 30(3) 197.

[35]        CrimA 369/78 Abu-Madijem v. State of Israel [1979] IsrSC 33(3) 376.

[36]        CrimA 115/82 Muadi v. State of Israel [1984] IsrSC 38(1) 197.

[37]        CrimA 183/78 Abu-Midjem v. State of Israel [1980] IsrSC 34(4) 533.

[38]        CrimA 154/85 Avroshami v. State of Israel [1987] IsrSC 41(1) 387.

[39]        LCrimA 3268/02 Kozali v. State of Israel (not yet reported).

[40]        CrimA 161/77 Zohar v. State of Israel [1978] IsrSC 32(1) 326.

[41]        CrimA 450/82 Abu-Ayin Tripi v. State of Israel [1983] IsrSC 37(2) 589.

[42]        CrimA 6021/95 Gomez-Cardozo v. State of Israel [1997] IsrSC 51(3) 769.

[43]        CrimA 277/78 State of Israel v. Tuvyahu [1979] IsrSC 33(1) 297.

[44]        CrimA 611/80 Matosian v. State of Israel [1981] IsrSC 35(4) 85.

[45]        CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.

[46]        CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

 

 

[47]        HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [1996] IsrSC 50(2) 769.

[48]        CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [1991] IsrSC 45(4) 529.

[49]        HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[50]        CrimA 3632/92 Gabbai v. State of Israel [1992] IsrSC 46(4) 487.

[51]        CA 5942/92 A v. B [1994] IsrSC 48(3) 837.

[52]        CA 2781/93 Daaka v. Carmel Hospital [1999] IsrSC 53(4) 526; [1998-9] IsrLR 409.

[53]        CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661; [1995-6] IsrLR 320.

[54]        HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [2004] IsrSC 58(6) 481.

[55]        CrimApp 92/00 A v. State of Israel [2000] IsrSC 54(4) 240.

[56]        CrimA 5825/97 Shalom v. State of Israel [2001] IsrSC 55(2) 933.

[57]        CrimA 5203/98 Hasson v. State of Israel [2002] IsrSC 56(3) 274.

[58]        CrimA 480/85 Kurtam v. State of Israel [1986] IsrSC 40(3) 673.

[59]        HCJ 3815/90 Gilat v. Minister of Police [1991] IsrSC 45(3) 414.

[60]        CrimA 1302/92 State of Israel v. Nahmias [1995] IsrSC 49(3) 309.

[61]        CrimA 476/79 Boulos v. State of Israel [1981] IsrSC 35(1) 785.

[62]        CrimA 16/82 Malka v. State of Israel [1982] IsrSC 36(4) 309.

[63]        FH 9/83 Appeals Court Martial v. Vaknin [1988] IsrSC 42(3) 837.

[64]        CrimA 951/80 Kanir v. State of Israel [1981] IsrSC 35(3) 505.

[65]        CrimFH 4390/91 State of Israel v. Haj Yihya [1993] IsrSC 47(3) 661.

[66]        CrimA 6147/92 State of Israel v. Cohen [1994] IsrSC 48(1) 62.

[67]        FH 23/85 State of Israel v. Tubul [1988] IsrSC 42(4) 309.

[68]        CA 703/86 Bernstein v. Attorney-General [1989] IsrSC 43(4) 529.

[69]        CA 2515/94 Levy v. Haifa Municipality [1996] IsrSC 50(1) 723.

[70]        HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [1997] IsrSC 51(3) 750.

[71]        CrimA 260/78 Saliman v. Attorney-General [1979] IsrSC 33(2) 204.

[72]        CrimA 559/77 Meiri v. State of Israel [1978] IsrSC 32(2) 180.

[73]        CrimA 2286/91 State of Israel v. Eiloz [1991] IsrSC 45(4) 289.

[74]        CrimA 639/79 Aflalo v. State of Israel [1980] IsrSC 34(3) 561.

[75]        CA 1354/92 Attorney-General v. A [1994] IsrSC 48(1) 711.

[76]        CA 61/84 Biazi v. Levy [1988] IsrSC 42(1) 446.

[77]        CrimA 2910/94 Yefet v. State of Israel [1996] IsrSC 50(2) 221.

 

 

[78]        CrimA 1668/98 Attorney-General v. President of Jerusalem District Court [2002] IsrSC 56(1) 625.

[79]        CrimA 2180/02 Kassem v. State of Israel [2003] IsrSC 57(1) 642.

[80]        CrimA 9970/03 Deri v. State of Israel (not yet reported).

[81]        CrimApp 6689/01 Migdalani v. State of Israel [2002] IsrSC 56(1) 173.

[82]        HCJ 266/05 Pilant v. Gen. Efroni (not yet reported).

[83]        CLA 1412/94 Hadassah Medical Organization v. Gilad [1995] IsrSC 49(2) 516.

[84]        MApp 298/86 Citrin v. Tel-Aviv District Disciplinary Tribunal of Bar Association [1987] IsrSC 41(2) 337.

[85]        HCJ 547/84 HaEmek Poultry Registered Agricultural Cooperative Society v. Ramat-Yishai Local Council [1986] IsrSC 40(1) 113.

[86]        CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[87]        HCJ 3992/04 Maimon-Cohen v. Minister of Foreign Affairs [2005] IsrSC 59(1) 49.

[88]        RT 3032/99 Baranes v. State of Israel [2002] IsrSC 56(3) 354.

[89]        RT 8483/00 Deri v. State of Israel [2003] IsrSC 57(4) 253.

[90]        CrimA 1741/99 Yosef v. State of Israel [1999] IsrSC 53(4) 750.

[91]        HCJ 6972/96 Association for Civil Rights in Israel v. Attorney-General [1997] IsrSC 51(2) 757.

[92]        HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481.

[93]        CrimFH 3750/94 A v. State of Israel [1994] IsrSC 48(4) 621.

[94]        CrimA 1/48 Silvester v. Attorney-General [1948] IsrSC 1 5.

[95]        CrimFH 4603/97 Meshulam v. State of Israel [1997] IsrSC 51(3) 160.

[96]        LCA 8925/04 Solel Boneh Building and Infrastructure Ltd v. Estate of Alhamid [2006] (1) IsrLR שגיאה! הסימניה אינה מוגדרת..

[97]        RT 8390/01 Axelrod v. State of Israel (not yet reported).

[98]        CrimA 242/85 Hazan v. State of Israel [1987] IsrSC 41(2) 512.

[99]        HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[100]      CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.

[101]      LCA 6339/97 Roker v. Salomon [2001] IsrSC 55(1) 199.

 

Israeli District Court cases cited:

[102]      CrimC (Naz) 511/97 State of Israel v. Odeh (unreported).

[103]      CrimC (TA) 4598/01 State of Israel v. Ben-Shushan (unreported).

 

 

 

American cases cited:

[104]      Miranda v. Arizona, 384 U.S. 436 (1966).

[105]      Dickerson v. United States, 530 U.S. 428 (2000).

 

Australian cases cited:

[106]      Bunning v. Cross (1978) 141 C.L.R. 54.

 

Canadian cases cited:

[107]      R. v. Oickle [2000] 2 S.C.R. 3.

[108]      R. v. Collins [1987] 1 S.C.R. 265.

 

English cases cited:

[109]      Ibrahim v. R. [1914] A.C. 599.

[110]      Kuruma v. R. [1955] A.C. 197.

 

Jewish law sources cited:

[111]      Genesis 19, 9.

[112]      Maimonides, Sefer HaMitzvot, Prohibitions, 290.

 

For the appellant — E. Zohar, R. Balchar, A. Crispin.

For the first respondent — E. Ron.

For the second respondent — Y. Resnick.

For the third respondent — K. Mann, A. Kobu.

For the fourth respondent — A. Feldman, M. Sefarad.

 

 

JUDGMENT

 

 

Justice D. Beinisch

Before us is an appeal on the judgment of the Appeals Court Martial after it gave leave to appeal to this court. At the heart of the appeal lies the question of the effect of not giving the statutory notice concerning the right to consult a lawyer on the admissibility of a confession made during interrogation. This question touches upon two fundamental issues that will be the focus of our deliberations: first, whether in the interpretive spirit of the Basic Law: Human Dignity and Liberty (hereafter: ‘the Basic Law’) it should be held that not giving the statutory notice concerning the right to consult a lawyer necessarily makes a confession of an accused under s. 12 of the Evidence Ordinance [New Version], 5731-1971 (hereafter: ‘the Evidence Ordinance’) inadmissible. This question concerns the interpretation of the provisions of the aforesaid s. 12, which makes the admissibility of a confession conditional upon its being made ‘freely and willingly.’ Second, is it possible to declare a confession as aforesaid inadmissible by virtue of a case law doctrine that illegally obtained evidence is inadmissible. This argument raises a fundamental question, which is, in essence, whether this court should adopt a general case law doctrine that illegally obtained evidence is inadmissible, and if so, what should be the nature and framework of the doctrine.

Before I turn to discuss the aforesaid questions, let us consider the main facts and proceedings that are relevant to this appeal and the arguments of the parties as presented in their written summations.

The main facts and the sequence of proceedings in the case

1.            On 17 December 1996, at around midnight, the appellant was admitted to military imprisonment camp 396 (hereafter: ‘Prison 6’) for being absent from the army without leave. As he was being admitted into the prison, the appellant was asked to undress, and when he removed his underpants, a small package wrapped in paper fell out of them. At first, the appellant tried to hide the package under his foot, but immediately thereafter he said: ‘It is grass, I can explain.’ An officer from the prison staff reported the incident to the investigative military police base in Haifa at 2:30 a.m.. The report was received by the interrogator on duty at that time, Corporal Yonatan Ophir (hereafter: ‘Corporal Ophir’ or ‘the interrogations officer’). The next day, on 18 December 1996, at 4:40 p.m., Corporal Ophir arrived at Prison 6 in order to interrogate the appellant. Before he met the appellant, Corporal Ophir received into his custody the package that had fallen from the appellant’s underpants, and also heard from the commanding officer of the prison wing where the appellant was imprisoned that the appellant confessed to him the previous use that he had made of the drug, even though it was not clear from the appellant’s statement at that time whether the aforesaid use had occurred before he was recruited into the IDF or after his recruitment.

At 4:45 p.m., Corporal Ophir began to interrogate the appellant, and after approximately twenty minutes, he began to write down his statement. Before taking the statement, Corporal Ophir told the appellant the following: ‘I am about to take your statement in circumstances where you are suspected of using and possessing dangerous drugs. Do you wish to say something with regard to the aforesaid offence? You are not obliged to say anything if you do not wish to do so, but anything that you will say will be written down and may be used as legal evidence.’ At the beginning of his statement, the appellant admitted that he smoked a drug of the cannabis type (‘grass’) when he was a soldier, during the period when he was absent without leave from the army. At 5:30 p.m., before he had finished taking the statement, Corporal Ophir left the interrogation room and spoke on the telephone with the military police commander in Haifa, Captain Nir Golan, who ordered him to arrest the appellant. At the end of the aforesaid telephone conversation, Corporal Ophir returned to the interrogation room and continued to take the appellant’s statement. The appellant gave details to the military interrogator of the instances when he made use of a cannabis-type drug while he was a soldier, and he also replied to the interrogator’s questions with regard to possession of the drug that was found in his possession when he was admitted to the prison. At 6:27 p.m. Corporal Ophir finished taking the appellant’s statement. At 6:35 p.m. Corporal Ophir ordered the appellant to provide a urine sample, and the appellant complied. Only at 6:45 p.m., approximately a quarter of hour after he finished taking the first statement, did Corporal Ophir tell the appellant that he was under arrest and that he had the right to consult a lawyer.

The next day, on 19 December 1996, the appellant spoke on the telephone with the defence attorney on duty. On the following day, Corporal Ophir interrogated the appellant a second time and took from him a second statement (prosecution exhibit 5). When Corporal Ophir began to take the statement, the appellant said: ‘I do not wish to add anything; I have nothing to add.’ Later in the statement, the appellant answered the interrogator’s questions with regard to possession of the drug that was found in his possession when he was admitted to Prison 6.

2.            On 6 January 1997, an indictment was filed against the appellant in the District Court Martial for the General Staff District (hereafter: ‘the court martial’). The first three paragraphs of the indictment charged the appellant with offences of using a dangerous drug under ss. 7(a) and (c) of the Dangerous Drugs Ordinance [New Version], 5733-1973 (hereafter: ‘the Dangerous Drugs Ordinance’). The fourth paragraph of the indictment charged the appellant with an offence of possessing a dangerous drug under the same sections of the Dangerous Drugs Ordinance.

Before the court martial, the appellant pleaded guilty to the fourth paragraph of the indictment which concerned the offence of possessing a dangerous drug, but he pleaded not guilty to the first three paragraphs of the indictment that concerned offences of using a dangerous drug. In order to prove the aforesaid three indictments, the prosecution sought to rely on the first statement that was taken from the appellant in his interrogation, in which he confessed that he had made use of a dangerous drug on several occasions when he was a soldier (hereafter: ‘the confession’). In so far as this confession was concerned, there was no dispute before the court martial with regard to the following matters: first, the prosecution confirmed to the court martial that in the circumstances of the case the military interrogator acted illegally when he took the appellant’s statement without first informing him that he was under arrest and that he had the right to consult a lawyer. We shall address this issue extensively later. Second, counsel for the appellant confirmed that his client’s confession before the military interrogator was given without any external pressure being exerted on the appellant in the interrogation in a manner that would detract from the free and willing nature of the confession that he made. Counsel for the defence also agreed that if it was determined that the confession made by the appellant was admissible and it was given full weight, it would be sufficient to prove his client’s guilt with regard to the offences with which he was charged. Counsel for the defence also did not dispute that the evidence contained something extra, i.e., additional evidence that supported the truth of the aforesaid confession. The main dispute between the parties concerned the question of the admissibility of the confession that was made when the duty to give notice of the right to consult a lawyer had been breached. Counsel for the defence argued in this respect that since the military interrogator did not warn his client of his right to consult a lawyer before the interrogation began, the appellant’s confession was made as a result of an illegal violation of the aforesaid right, and therefore it should be inadmissible as evidence.

3.            The District Court Martial accepted, by a majority, the argument of counsel for the defence that in the circumstances of the case the confession made by his client in the interrogation should be declared inadmissible, because it was made without him being advised according to law of his right to consult a lawyer. The appellant was therefore acquitted of the use of a dangerous drug with which he was charged in the first three paragraphs of the indictment, and he was convicted on his guilty plea of the offence of possessing a dangerous drug under the fourth paragraph of the indictment. It should be noted that for the appellant’s conviction on the offence of possession a dangerous drug, the court martial sentenced the appellant to 72 days imprisonment, concurrently with the period that he was under arrest, and also to two months imprisonment that was suspended over a period of three years, provided that he was not convicted of any offence under the Dangerous Drugs Ordinance.

In its reasons for the verdict, which were given separately, the District Court Martial began by discussing s. 12 of the Evidence Ordinance, which makes the admissibility of a defendant’s confession conditional upon it being given ‘freely and willingly.’ The court martial pointed out that according to the case law of the Supreme Court, the lack of a warning about the right to consult a lawyer was insufficient to make a confession under the aforesaid s. 12 inadmissible, as distinct from its possible effect on the weight of the confession as evidence. Therefore the court martial turned to consider the argument of counsel for the defence with regard to the inadmissibility of the confession for reasons not included within the framework of s. 12 of the Evidence Ordinance. The main argument of counsel for the defence in this respect was that in view of the provisions of the Basic Law: Human Dignity and Liberty, the court should rule that evidence obtained by means of an illegal violation of constitutional rights is inadmissible.

The majority opinion in the District Court Martial held that the aforesaid argument of counsel for the defence should be accepted. According to the majority’s approach, the clause requiring government authorities to comply with the law in s. 11 of the Basic Law: Human Dignity and Liberty meant that, in appropriate circumstances, evidence that was obtained by violating a constitutional right of the accused should be inadmissible, in order to protect the status and integrity of the justice system and in order to provide effective protection for rights of the individual. In this context, the majority said that: ‘The weight of the interests of a fair trial, and insistence on upholding rights of the individual, are greater than the weight that should be given to pursuing the “factual truth” for the purpose of the fight against crime’ (p. 36 of the reasons for the verdict). The majority further said that ‘… applying the rule of inadmissibility does not need to be done “strictly” but by virtue of discretion that will be exercised by the court’ (p. 38 of the reasons for the verdict; emphasis in the original). In the circumstances of the appellant’s case, the majority held that the military interrogator who took down the confession ‘acted — throughout all stages of the interrogation — knowingly and intentionally in violation of the defendant’s [the appellant’s] right to consult a lawyer, and there was no basis for holding him to have acted in good faith in this respect.’ In view of all this, the majority were of the opinion that the appellant’s confession should be inadmissible, and therefore the appellant should be acquitted of the offences of making use of a dangerous drug.

By contrast, the minority opinion held that great caution should be adopted before changing case law regarding the admissibility of illegally obtained evidence, and that in this regard the Supreme Court ought to have its say. With regard to the circumstances of the case before it, the minority justice disagreed with the position of the majority with regard to the seriousness of the violation of the appellant’s rights. Admittedly, no one disputed that the military interrogator acted improperly when he failed to advise the appellant of his right to consult a lawyer until his statement had been taken. Notwithstanding, unlike the majority justices, the minority justice in the District Court Martial was under the impression that the military interrogator did not act in this matter intentionally and deliberately, but as a result of an error resulting from a lack of familiarity with, and assimilation of, the new procedures at that time. The minority justice also saw fit to point out that after he finished taking the statement, the military interrogator helped the appellant make contact with the military defence attorney in order to realize his right to consult a lawyer. In view of this, the minority justice was of the opinion that the strength of the violation of the appellant’s rights was not so serious and extreme that it justified declaring the confession inadmissible.

4.            The military prosecutor appealed to the Appeals Court Martial against the exclusion of the confession under discussion, and against the acquittal of the appellant by a majority on the offences of making use of a dangerous drug.

The Appeals Court Martial (Justices I. Schiff, M. Finkelstein and Y. Kedmi) allowed the appeal unanimously. The court held that in the circumstances of the case, the confession of the appellant should not be excluded. Notwithstanding, the justices of the Appeals Court Martial differed in their reasons for this decision. Two of the justices were of the opinion that even after the enactment of the Basic Law: Human Dignity and Liberty, the public interests of discovering the truth and fighting crime should take precedence, and that there was no basis for finding a confession inadmissible merely because the notice about the right to consult a lawyer was not given. According to their approach, the Basic Law does not require a change in the interpretation of the provisions of s. 12 of the Evidence Ordinance, as argued by counsel for the defence, and the Basic Law did not even contain anything that required the adoption of the doctrine that evidence obtained by means of a violation of a protected right of the person under interrogation should be inadmissible. The justices emphasized in their judgment that, in principle, this court is competent to change its case law and order the exclusion of illegally obtained evidence, but in their opinion it is not desirable, since it was questionable whether the legislature has ‘expressed a desire to revolutionize the rules of evidence and change long-established case law’ (p. 35 of the judgment; emphasis in the original). With regard to the circumstances of the appellant’s case, the justices held that ‘failing to notify someone who is about to be arrested and even someone who has been arrested about his right to consult a lawyer, even if it is done in bad faith, is not in itself an extreme violation of a basic right to the extent that it will result in the inadmissibility of the confession that was made freely and willingly’ (p. 31 of the judgment; emphasis in the original).

The third justice on the panel held, in a minority opinion, that in this instance there was no need to consider the question whether to adopt a constitutional rule of inadmissibility in the Israeli legal system, since in any case the provisions of s. 12 of the Evidence Ordinance constituted a comprehensive arrangement with regard to the admissibility of a defendant’s confession. In the circumstances of the appellant’s case, the justice held that the fact that the interrogator intentionally did not give a warning, at the proper stage in the interrogation, that the appellant had the right to consult a lawyer was insufficient to undermine the free and willing manner in which the appellant made his confession.

In view of the aforesaid reasons, the Appeals Court Martial held unanimously that the appeal should be allowed and that the case should be returned to the trial court so that it could admit the appellant’s confession and make its decision accordingly. At the end of the judgment, the Appeals Court Martial decided that, pursuant to its authority under s. 440I of the Military Jurisdiction Law, 5715-1955 (hereafter: ‘the Military Jurisdiction Law’), ‘leave is hereby given to appeal to the Supreme Court.’

5.            According to the aforesaid judgment, the case was returned to the District Court Martial. Counsel for the defence did not dispute before the court martial that in view of the decision that his client’s confession was admissible, his guilt was proved for all the offences with which he was charged in the indictment. In view of this, the District Court Martial convicted the appellant of three offences of using a dangerous drug, in addition to his existing conviction for the offence of possession of a dangerous drug. With regard to the appellant’s sentence, in view of his discharge from military service on grounds of incompatibility and in view of the time that had passed since the offences were committed, the court martial refrained, with the consent of the parties, from imposing a custodial sentence on the appellant for his conviction of the three offences of making use of a dangerous drug. Therefore, for these offences the appellant was sentenced to two months imprisonment that was suspended over a period of eighteen months, provided that he did not commit any offence under the Dangerous Drugs Ordinance.

6.            In view of the leave to appeal given by the Appeals Court Martial on its judgment, counsel for the appellant filed their appeal in this court. Their main argument in the appeal was that, in view of the status and importance of the right to consult a lawyer, the confession made by the appellant as a result of an illegal violation of the aforesaid right should be declared inadmissible. On 13 September 1998, the attorney-general gave notice by virtue of his power under the Procedure (Attendance of Attorney-General) Ordinance [New Version], 5728-1968, that he would attend this proceeding, since it gives rise to a ‘question that is of great legal and public importance, in the sphere of the rules of evidence and the constitutional rights of a suspect.’

At the hearing that took place in this court on 13 June 1999 (before President A. Barak and Justices T. Or and E. Mazza) it was decided that the appeal would be heard by way of written summations before an extended panel of justices. At the appellant’s request, it was decided that the notice of appeal would serve as written summations on his behalf. In accordance with the aforesaid decision, the first respondent (the chief military prosecutor) and the second respondent (the attorney-general) filed written summations of their arguments in the appeal.

7.            On 25 October 1999, the National Public Defender’s Office filed in this court an application to file written pleadings as a ‘friend of the court.’ On 9 December 1999 the Israel Bar Association filed a similar application. For the reasons set out below, we saw fit to grant these two applications.

At the heart of the appeal before us lies the question of the effect of not giving the statutory notice concerning the right to consult a lawyer on the admissibility of a confession made by the accused in an interrogation. This question constitutes a part of a broader fundamental issue, which concerns the adoption of a doctrine that illegally obtained evidence should be inadmissible in our legal system. This is an issue of significant legal and public importance, which concerns a broad spectrum of defendants both in the military justice system and in the civilian justice system, and it is capable of raising a wide range of complex questions in the field of constitutional law and in the field of criminal evidence. In a deliberation of this kind, the Public Defender’s Office, which has a duty under the law to represent persons who have been arrested or indicted in the civilian justice system, and the Israel Bar Association which represents the active lawyers in Israel, have the ability to assist in clarifying the issues under discussion. In view of the roles of the aforesaid bodies, their expertise and experience in representing defendants, joining them to the proceeding is likely to contribute to a deeper understanding and clarification of the issue. For this reason, and in order that as broad and comprehensive a picture may be presented with regard to the questions that arise before us, we thought that there was a basis to allow the National Public Defender’s Office and the Israel Bar Association to put forward their position in this proceeding.

We therefore decided, without any objection from the parties, to join the National Public Defender’s Office and the Israel Bar Association to the proceeding before us, and we received their summary arguments (on the considerations supporting an order to join a body as a party to a proceeding in the capacity of a ‘friend of the court,’ see CrimFH 9384/01 Al Nisasra v. Israel Bar Association [1], at para. 16 of my opinion; CA 10425/03 State of Israel v. Sita Shasha [2]; HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel [3]; RT 7929/96 Kuzali v. State of Israel [4], at pp. 553-555, and the references cited there).

Arguments of the parties in the appeal

8.            In their written summations, the parties explained in depth their positions on the fundamental question that arises in this case, and they supported their reasoning with many references from Israeli law and comparative law. At this stage of our deliberations, let us discuss in brief the positions of the parties, without addressing all of the reasons and references that they address in their summations.

9.            The arguments on behalf of the appellant were presented before us by counsel from the Military Defender’s Office (Adv. E. Zohar, Adv. R. Balchar and Adv. A. Crispin). In a detailed notice of appeal, which serves also as summations of their arguments, counsel for the appellant discussed the reasons why they are contesting the decision of the Appeals Court Martial to hold their client’s confession admissible. According to counsel for the appellant, since their client’s confession was taken without him being warned according to law at the beginning of the interrogation of his right to consult with a lawyer, the confession should be inadmissible in evidence, because of two separate provisions of statute: one is s. 12 of the Evidence Ordinance and the other is the provisions of the Basic Law: Human Dignity and Liberty.

Regarding the provisions of s. 12 of the Evidence Ordinance, counsel for the appellant argued that in view of the status and importance of the right to consult a lawyer, this court should change the prevailing interpretation of the aforesaid s. 12, and determine that obtaining a confession without a statutory warning of the right to consult a lawyer necessarily violates the free and willing manner in which the accused makes his confession, and therefore it should be inadmissible. According to the approach of counsel for the appellant, the scope of the inadmissibility rule set out in s. 12 of the Evidence Ordinance should be extended so that a confession will be inadmissible whenever it is made without the person under interrogation being advised according to statute of his right to consult a lawyer. At the same time, counsel for the appellant emphasized that, in their opinion, the provisions of the aforesaid s. 12 do not constitute a comprehensive arrangement with regard to the admissibility of confessions made by defendants, and it cannot preclude the adoption of a case law doctrine regarding the inadmissibility of evidence, including a confession, that was obtained illegally. In this regard, counsel for the appellant argued that since the enactment of the Basic Law: Human Dignity and Liberty, the rights of suspects and defendants in criminal proceedings have a super-legislative constitutional status, since they are derived from the constitutional right to dignity and liberty. Consequently, they claim that not advising the appellant of the right to consult a lawyer constitutes an illegal violation of a constitutional right. According to counsel for the appellant, the proper remedy for this is that a confession made in violation of the aforesaid right should be inadmissible. This relief may be derived, according to counsel for the appellant, both from the constitutional right itself, and from the purpose, protection and government compliance clauses that are provided in the Basic Law. According to this approach, a relative doctrine of inadmissibility should be adopted that leaves the court discretion to exclude illegally obtained evidence.

In the appellant’s case, counsel argued that his confession should be excluded, inter alia in view of the serious nature of the violation of the right to consult a lawyer and in view of the fact that the court martial held that the military interrogator violated this right in bad faith and intentionally. Counsel for the appellant further argued that the failure to give the appellant the notice at the beginning of his interrogation with regard to his right to consult a lawyer was not an isolated incident, and that during the period when the appellant was being interrogated by the military police, these violations were a common occurrence. In view of all this, counsel for the appellant were of the opinion that the appeal should be allowed, the aforesaid confession should be declared inadmissible and the appellant should be acquitted of the offences of making use of a dangerous drug.

10. By contrast, the Chief Military Prosecutor, Colonel E. Ron, argued in her written summations that the appeal should be denied, for the reasons given by the majority opinion in the Appeals Court Martial. With regard to the provisions of s. 12 of the Evidence Ordinance, the chief military prosecutor argued that the court should not adopt an interpretation whereby not advising the accused of the right to consult a lawyer will necessarily lead to the inadmissibility of a confession made by him in his interrogation. According to the approach of the chief military prosecutor, for reasons that she discussed extensively, the prevailing interpretation in case law, according to which not giving a statutory notice with regard to the right to consult a lawyer does not in itself make a confession under s. 12 of the Evidence Ordinance inadmissible, should be left unchanged. With regard to the question of adopting a general doctrine that illegally obtained evidence should be inadmissible, the chief military prosecutor argued that the absence of express legislation in this regard should indicate the existence of a negative arrangement that precludes the adoption of such a judicial doctrine. According to her argument, this court ought to refrain from adopting, by means of judicial legislation, a doctrine that illegally obtained evidence is inadmissible, as requested by counsel for the appellant. In view of the variety of reasons that she listed, the chief military prosecutor argued that the appeal should be denied and the judgment of the Appeals Court Martial should be left unchanged.

11. As I said above, the attorney-general saw fit to give notice of his attendance in the proceeding before us. At the outset of his written arguments, Adv. Y. Resnick, the Deputy State Attorney, argued on behalf of the attorney-general that the attorney-general accepted the position of the chief military prosecutor and it reflected his position on the issues under consideration.

In so far as the provisions of s. 12 of the Evidence Ordinance are concerned, counsel for the attorney-general added that this is a comprehensive arrangement with regard to the question of the admissibility of defendants’ confessions. According to the case law of this court, a failure to give the statutory notice regarding the right to consult a lawyer does not, in itself, detract from the free and willing manner in which the accused makes his confession in an interrogation, and it should not be regarded as such an extreme example of an improper interrogation method that it necessarily leads to the inadmissibility of the confession. He argues that the aforesaid interpretation of the provisions of s. 12 of the Evidence Ordinance is a proper one and it should not be changed, in as much as it serves the public interest of discovering the factual truth in a criminal proceeding.

With regard to the question of the adoption of a case law doctrine that illegally obtained evidence should be inadmissible, the position of the attorney-general was that adopting such a doctrine would constitute a revolution in the rules of evidence. Therefore, he argues that if there is any basis for adoption this doctrine, it should be done in Knesset legislation and not by way of judicial legislation of the court. Counsel for the attorney-general raised a doubt as to whether all the procedural rights of suspects and defendants in criminal proceedings are in fact enshrined in the constitutional right to dignity and liberty. He further said in his arguments that the legislation that was adopted after the enactment of the Basic Laws, in the field of criminal enforcement, does not include an express provision concerning the inadmissibility of illegally obtained evidence. According to this argument, the absence of an express provision of statute in this regard is capable of indicating the existence of a negative statutory arrangement that should not be circumvented by means of a broad interpretation of the provisions of the Basic Law: Human Dignity and Liberty; this is the case especially with regard to rights that are not expressly listed within the framework of the aforesaid Basic Law. For these reasons, counsel for the attorney-general agreed with the position of the chief military prosecutor, according to which the appeal against the judgment of the Appeals Court Martial should be denied.

Adv. K. Mann and Adv. A. Kobu, counsel for the National Public Defender’s Office, which was joined to the proceeding as aforesaid, discussed in their written arguments the elevated status of the right to consult a lawyer in our legal system, the reciprocal relationship between it and the right to remain silent and the importance of the right to consult a lawyer in order to protect the propriety of the interrogation and in order to ensure the rights of the person being interrogated as a whole. Later in their arguments counsel for the National Public Defender’s Office discussed the findings of field research that they conducted at the end of 1999 and during 2003 in the Tel-Aviv district, with the aim of examining what was occurring at police stations with regard to advising persons being interrogated of the right to consult a lawyer and the right to remain silent. According to the Public Defender’s Office, the aforesaid research shows that there exists a phenomenon, which they allege constitutes a widespread practice, whereby policemen illegally refrain from notifying persons who are under interrogation of their right to consult a lawyer or they postpone the giving of the notice until after they have finished taking the statement of the person being interrogated, in a manner that undermines his ability to realize the right to consult a lawyer effectively. Against this background, the basic position of the Public Defender’s Office is that this court should adopt a case law doctrine of inadmissibility, within which framework the court may, at its discretion, exclude evidence that was obtained in violation of the basic rights of persons being interrogated in criminal proceedings. According to the approach of the National Defender’s Office, adopting such a doctrine is essential in order to protect the rights of suspects and defendants and in order to protect the fairness of criminal proceedings and the integrity and trustworthiness of the judicial system.

The Israel Bar Association (hereafter also: ‘the Bar Association’) argued also that this court should adopt a case law doctrine that illegally obtained evidence should be inadmissible. According to counsel for the Bar Association, Adv. A. Feldman and Adv. M. Sefarad, the Basic Law requires the development of constitutional remedies in order to protect the rights enshrined therein against illegal violations by executive authorities. According to this argument, the right to consult a lawyer and to be represented by him is a basic right of great importance, which constitutes an integral part of the right to a fair trial and a complementary right to the right to remain silent and the right not to incriminate oneself. According to the Bar Association, the right to consult a lawyer today constitutes a constitutional right that is derived from the right to human dignity and liberty. A failure to give notice of the right to consult a lawyer before taking the statement of a defendant in an interrogation deals a mortal blow to the aforesaid right. For the reasons set out extensively in its written arguments, the Bar Association is of the opinion that our legal system is ready to adopt a case law doctrine that will exclude evidence obtained by means of a violation of the constitutional rights of persons who are under interrogation. It argues that adopting such a doctrine will be capable of educating and deterring interrogators from using illegal interrogation methods, and of protecting human rights and the credibility of the judicial system in an effective manner.

12. It is possible, therefore, to summarize that we have seen various positions with regard to the variety of issues that arise in the case before us — including arguments concerning the interpretation of the provisions of s. 12 of the Evidence Ordinance in view of the Basic Law and arguments concerning the question of adopting a case law doctrine that illegally obtained evidence should be inadmissible. It should be noted that even according to those who believe that such a doctrine should be adopted, the court has been asked, in view of the provisions of the Basic Law, to develop a relative doctrine that will allow discretion in excluding illegally obtained evidence.

The protracted nature of the proceeding

13. Before we turn to examine the positions that have been presented to us and to determine the weighty issue brought before us, we should point out that the writing of our judgment was delayed until now for various reasons. As can be seen from the arguments of the parties, among the issues that arose in the appeal before us was the fundamental question of whether to adopt a case law doctrine according to which illegally obtained evidence should be inadmissible, and what should be the nature and framework of this doctrine. It has been said in the case law of this court that ‘… “a rule of inadmissibility” affects the heart and soul of the criminal trial… the whole issue is of great legal and public importance, and it should not be decided without regard to the complete social picture’ (per Justice Barak in HCJ 249/82 Vaknin v. Appeals Court Martial [5], at p. 422). This is an issue on which much literature has been written both in Israel and elsewhere. In other countries various arrangements have been adopted on the question of the admissibility of illegally obtained evidence. In some countries a change has occurred in the arrangements practiced in this regard as a result of legal and social developments. In Vaknin v. Appeals Court Martial [5], Justice Barak refrained from considering the question of adopting a doctrine as aforesaid in our legal system, for the reason that all of the relevant material on the subject was not brought before the court (ibid.). Notwithstanding, in that case he discussed some of the questions that arise in this context, without deciding them: ‘Should we declare evidence, which was obtained by improper methods, completely inadmissible? Should we distinguish between various kinds of evidence and between various improper methods? Does the court have discretion? What are the parameters?’ (ibid., at p. 422). These questions come before us now and they are difficult and complex. Their solution required us to assemble material from various legal systems, which we have studied and considered in depth.

Moreover, during the time that passed since the appeal was filed, several proposals have been considered for amending legislation on the issues that arose before us (see the draft Evidence Ordinance [New Version] Amendment (Statement of Accused Outside the Court) Law, 5760-1999, the draft Evidence Ordinance Amendment (no. 15) (Confession of Accused regarding Serious Offences) Law, 5761-2000, the draft Evidence Ordinance Amendment (Inadmissibility of Confession Obtained by Violence) Law, 5764-2004, and the draft Evidence Ordinance Amendment (Admissibility and Weight of Accused’s Confession) Law, 5764-2004, which concerned proposals to amend the provisions of s. 12 of the Evidence Ordinance; see also the draft Evidence Ordinance Amendment (Inadmissibility of Evidence) Law, 5765-2005, which concerns giving general discretion to the court to exclude illegally obtained evidence in accordance with criteria that we shall discuss later). In view of the legal, public and social importance of the issues brought before us and taking into account the variety of arrangements practised in this matter in other countries, we saw fit to wait before making our decision, in case a solution would be found to these questions in legislation of the Knesset. Since the aforesaid draft laws were not passed by the Knesset from the time the appeal was filed until today, there is no alternative to examining the arguments of the parties and making a decision with regard thereto. Notwithstanding, as will be clarified below, our judgment does not provide a complete solution to all the questions involved in the issue of the admissibility of illegally obtained evidence. It can be assumed that, if a need arises, these questions will be addressed in legislation that is consistent with the provisions of the Basic Law.

It should be emphasized that the appellant did not suffer any real harm from the time that passed before we gave our judgment. As will be explained below, the appellant’s conviction on the offences of making use of a dangerous drug was based on a confession whose admissibility is the question that lies at the heart of the appeal that was filed in this court. For the appellant’s conviction on the offences of making use of a dangerous drug, he was sentenced to imprisonment that was suspended for a period of eighteen months. The aforesaid suspension period has passed and, in so far as we are aware, the suspended sentence was not activated. In these circumstances, the delay in making our decision on the fundamental questions that arise in this appeal did not significantly harm the appellant.

Against this background, let us turn to examine the fundamental issues that are before us.

The right to consult a lawyer and the duty to give notice of this right

The importance of the right to consult a lawyer

14. The right of someone under arrest to be represented by a lawyer and to consult him was recognized as a fundamental right in our legal system in the earliest days of this court (see CrimA 307/60 Yassin v. Attorney-General [6], at p. 1570; CrimA 96/66 Tau v. Attorney-General [7], at pp. 545-546; see also CrimA 533/82 Zakkai v. State of Israel [8], at p. 65; CrimA 334/86 Sabah v. State of Israel [9], at p. 865; CrimA 747/86 Eisenman v. State of Israel [10], at p. 453).

When the Criminal Procedure Law (Amendment no. 15), 5741-1981, was adopted, the right of a person under arrest to meet with and consult a lawyer was expressly enshrined in statute, and it was originally provided in s. 29 of the Criminal Procedure Law [Consolidated Version], 5742-1982. This provision of statute was replaced by s. 34(a) of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996 (hereafter: ‘the Arrests Law’), with an identical wording to the wording of the aforesaid s. 29. The following is the language of the section:

‘Right of person under arrest to meet with lawyer       34. (a) A person under arrest is entitled to meet with a lawyer and consult him.’

The importance of the right to meet with and consult a defence lawyer at the interrogation stage derives from the fact that, as a rule, an interrogation by persons in authority is a complex and stressful situation for anyone who is interrogated under conditions of arrest when he is confronted by his interrogators on his own. The accepted opinion is that the right to be represented by and to consult a lawyer assists in protecting the rights of persons under arrest, ensures the fairness of the interrogation proceedings and prevents abuse of the inherent disparity of forces between the arrested person and the persons in authority who are interrogating him. In this context, it is possible to indicate several reasons that support the right of the person under arrest to legal representation at the interrogation stage: first, a consultation by the person under arrest with his lawyer assists in ensuring that the person under arrest is aware of all of his rights, including the right to a fair interrogation without any improper interrogation methods being used against him, the right not to incriminate himself and the right to remain silent. The assumption is that the lawyer will take care to give an explanation to the person under arrest with regard to his rights in the interrogation in simple and clear language, and that he will explain to him the significance of not presenting his version of events in the police interrogation. It has been said in the case law of this court that: ‘the right to defence counsel includes the legitimate possibility that a lawyer will advise the suspect or accused to remain silent and not make any statement to the police’ (per Justice Goldberg in Eisenman v. State of Israel [10], at p. 452). For this reason, it is customary to regard the right to consult a lawyer as another aspect of the right to remain silent (see Yassin v. Attorney-General [6], at p. 1570; Tau v. Attorney-General [7], at p. 546; Eisenman v. State of Israel [10], at p. 452; HCJ 3412/91 Sufian v. IDF Commander in Gaza Strip [11], at p. 847, per Vice-President Elon; HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [12], at p. 764, per Justice Rivlin).

In addition to the aforesaid, we should point out that in the past this court has adopted the position that not only does an accused in a trial have the right to remain silent but so too does a suspect in an interrogation (see, for example, LCA 5381/91 Hogla v. Ariel [13], at p. 381, per Justice Mazza; CrimA 1382/99 Balhanis v. State of Israel [14], per Justice Ilan; LCrimA 3445/01 Almaliah v. State of Israel [15], at p. 869, per Justice Dorner). We should mention that recently this court saw fit to leave undecided the question of the scope of the right to remain silent in the interrogation of a suspect (see LCrimA 8600/03 State of Israel v. Sharon [16], at pp. 756-757 and 759, per Vice-President Or and the references cited there). This question does not arise in the case before us, and therefore we too shall leave it undecided.

The right to consult a lawyer therefore helps to ensure that the person under arrest is aware of all of his rights in an interrogation. In addition to this, the defence lawyer of the arrested person may make a contribution towards ensuring the propriety of the interrogation and the lawfulness of the measures adopted during it, and he may also assist in ensuring the reliability of the evidence obtained in the interrogation proceedings (see, for example, CrimA 648/77 Kariv v. State of Israel [17], at p. 743, where President Shamgar discussed the reasons supporting the presence of a defence lawyer when an identity parade is conducted with the suspect; see also D. Bein, ‘The Right of a Suspect Under Arrest to a Defence Lawyer in Interrogation Proceedings — “Compromise” Solutions,’ 39 HaPraklit 108 (1990), at pp. 109-112). Moreover, there are some opinions that the representation of a person under arrest by a lawyer contributes to the effectiveness of the interrogation, in the sense that the lawyer may help the interrogation authorities in finding evidence that supports the innocence of the person under arrest, and even help in preventing the making of false confessions by persons under arrest (see Y. Tirosh, ‘ “The Right to Legal Representation in an Interrogation” — Rules of Entrapment in the light of Comparative Law,’ 14 Mishpat veTzava (Military Law) 91 (2000), at pp. 94-95). In view of all of the aforesaid reasons, no one disputes the elevated position and centrality of the right to consult a lawyer in our legal system.

15. In view of the importance of the right to consult a lawyer, the Arrests Law now provides that if a person under arrest asks to meet with a lawyer or if a lawyer appointed by someone close to the person under arrest asks to meet with him, ‘the person in charge of the investigation shall allow this, without delay’ (s. 34(b) of the law; emphasis supplied). It is further provided in the law that even though supervision of the movements of the person under arrest should be allowed, the meeting of the person under arrest with his lawyer should take place in private and in conditions that guarantee the confidentiality of the conversation (s. 34(c) of the law). It should be noted that, alongside these provisions of the law there are exceptions that, in appropriate circumstances, allow the meeting of the person under arrest with a lawyer to be deferred in accordance with the grounds and conditions prescribed by the law. The law also provides a special arrangement with regard to the meeting of a person under arrest with his lawyer when he is suspected of security offences. These exceptions show that, like other basic rights, even the right to consult a lawyer is not absolute and there are occasions when it has to give way to competing rights and interests (see Sufian v. IDF Commander in Gaza Strip [11], at p. 848, per Vice-President Elon; CrimA 6613/99 Smirk v. State of Israel [18], at p. 554; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [19], at pp. 380-381 {212-213}, per President Barak).

In order to complete the picture, we should point out that when the Public Defender’s Office Law, 5756-1995 (hereafter: ‘the Public Defender’s Office Law’) was enacted, statute recognized the right of suspects and persons under arrest to representation by a public defender, in the circumstances listed in the provisions of s. 18 of the aforesaid law. The restrictions on the right to representation by the Public Defender’s Office on the grounds listed in s. 18 of the law are also based on the perception that the right to legal representation in general, and the right to legal representation at the public expense in particular, are not absolute rights and they should be balanced against competing rights and interests in accordance with the grounds and conditions set out in the law.

Duty to give notice of the right to consult a lawyer

16. The right of the person under arrest to be represented by a lawyer and to consult him gives rise to the right to be given notice of the aforesaid right by the interrogation authorities. The reason for this is that without giving notice of the aforesaid right, the person under arrest will not be aware of his right to ask to consult his lawyer, and this may not only prejudice the actual right to consult a lawyer but also in certain circumstances undermine the fairness of the interrogation. The remarks of Vice-President Elon in Sufian v. IDF Commander in Gaza Strip [11] are illuminating in this regard:

‘The basic right of the defendant to meet with a lawyer gives rise to and implies the right to receive a notice of the existence of this right and the duty imposed on the authorities to give notice of this to the person under arrest. Someone who does not know of the existence of a right cannot try to realize it. This is especially the case when we are speaking of someone who is under arrest, and his mind is troubled, and he will probably not know how he should act and what he should do. For this reason the person under arrest has a right to be notified of his right to meet with a lawyer, and the authorities have a duty to notify him accordingly’ (ibid. [11], at p. 850).

This is the place to point out that the duty of the investigation authorities to give notice of the rights of the person under interrogation has undergone development over the years. Notwithstanding, it would appear that our legal system has no comprehensive and uniform statutory arrangement in this regard. With regard to the right not to incriminate oneself and the right to remain silent, the duty to give notice of these is intended to ascertain that the accused is aware of these rights at the time of his interrogation, and that he knowingly waived them when giving his statement. In its early years, this court derived the duty to give notice of the aforesaid rights from the English Judges’ Rules, which were regarded merely as guidelines (see CrimA 69/53 Sich v. Attorney-General [20], at p. 805, and the references cited there). Now s. 28(a) of the Arrests Law prescribes a duty to give a warning, even though the aforesaid section does not refer directly to warning a suspect that he has a right to remain silent in an interrogation, but it concerns giving a person an opportunity to respond before a decision to arrest him, when the officer in charge has the duty to warn him beforehand that he is not liable to say anything that may incriminate him, but that refraining from answering questions may strengthen the evidence against him (see Smirk v. State of Israel [18], at p. 545). In the case before us, no one disputes that the appellant was warned before taking his statement with regard to the right to remain silent in accordance with the wording of the warning prescribed in s. 267 of the Military Jurisdiction Law. In view of this, no questions arise in the appellant’s case with regard to the duty to give notice of the aforesaid right, and with regard to the scope of the application of the right to remain silent in the interrogation of a suspect, as distinct from an accused.

With regard to the duty to give notice of the right to consult a lawyer, this is now expressly enshrined in the provisions of the Arrests Law and the Public Defender’s Office Law, which were enacted after the Basic Law: Human Dignity and Liberty was enacted. Section 32 of the Arrests Law provides as follows:

‘Explaining rights to a person under arrest        32. If the officer in charge decides to arrest the suspect, he shall immediately make the fact of the arrest and the reason for the arrest clear to him in language that he can understand, in so far as possible, and also —

                (1)          His right that notice of his arrest should be given to a person close to him and to a lawyer, and his right to meet with a lawyer, all of which subject to the provisions of sections 34 to 36; and also his right to be represented by a defence lawyer as stated in section 15 of the Criminal Procedure Law or under the Public Defender’s Office Law.

(2) …’

(Emphasis supplied).

The provisions of s. 19 of the Public Defender’s Office Law, which deals with giving notice of the possibility of a public defence attorney being appointed, states as follows:

‘Notice to the person under arrest of a possibility of appointing a public defence lawyer            19. (a) If a person is arrested and brought to a police station or to a facility of an investigative authority under the law, or if he is suspected of committing an offence, the person in charge of the station or of the investigation shall notify him, as soon as possible, that he has the possibility of asking that a public defence lawyer is appointed, if he is entitled to one under this law.

                                (b) …’

(Emphases supplied).

A study of the two aforesaid provisions of statute shows that, prima facie, there are differences between the two with regard to the time when the duty arises to give a notice with regard to the right to consult a lawyer and the right to be represented by a public defence lawyer: according to the provisions of s. 32(a) of the Arrests Law, the duty to give notice of the right to consult a lawyer arises when the decision to arrest a person is made by the officer in charge and when notice is given that the person is under arrest. By contrast, under the provisions of s. 19(a) of the Public Defender’s Office Law, the duty to give notice of the right to ask for the appointment of a public defence lawyer applies to a person under arrest who has been brought to the police station or to a person suspected of committing an offence.

17. In their arguments before the court martial and also before us, counsel for the appellant addressed extensively the question of the proper interpretation of the term ‘person under arrest’ in the title of section 32 of the Arrests Law. According to them, this question should be decided in order to determine when under s. 32(1) the duty arises to notify a person under interrogation of his right to consult a lawyer, and whether this duty has been breached in the case of the appellant.

In their arguments, counsel for the appellant discussed two interpretive possibilities for the term ‘person under arrest’ in s. 32 of the Arrests Law: according to the narrow interpretation, which counsel for the defence asks us to reject, the duty to give notice of the right to consult a lawyer arises when a decision is made by the officer in charge to make the arrest and notice of this is given to the suspect. According to counsel for the appellant, this interpretation is not desirable since it can lead to a situation in which the interrogation authorities delay giving the notice that the suspect is under arrest until after they have taken his statement, with the result that the meeting with the lawyer loses its effectiveness. It should be said at once that the answer to the aforesaid concern lies in the determination that even according to the narrow interpretation of the term ‘person under arrest,’ it cannot be said that an illegal delay in giving notice of the decision to make an arrest will lead to a postponement of the time when the duty arises to give notice of the right to consult a lawyer. Moreover, a delay in giving the notice of arrest, which is artificial and done in bad faith, with the purpose of tendentiously postponing the time of the duty to give notice of the right to consult a defence lawyer, is likely in itself to constitute a violation of the suspect’s procedural rights, with all that this implies. Notwithstanding, it is clear that according to the narrow interpretation, the duty to give notice of the right to consult a lawyer involves the officer in charge making an objective decision to arrest the suspect, and this is capable of restricting the scope of the duty to give notice of the right to consult a lawyer.

According to the outlook of counsel for the appellant, the spirit of the Basic Law: Human Dignity and Liberty and the arrangement set out in the provisions of s. 19(a) of the Public Defender’s Office Law today require a broad interpretation of the term ‘person under arrest’ in s. 32 of the Arrests Law. According to the interpretation proposed by them, the duty to notify a ‘person under arrest’ of his right to consult a lawyer does not necessarily involve the making of a decision to arrest him, but it arises whenever a person is suspected of committing an offence and is detained in police custody for the purposes of interrogation, in such a way that his liberty and freedom of movement are restricted; this is the case even if no decision has been made by the officer in charge to arrest the suspect. The National Public Defender’s Office also supports this interpretation, in view of its argument that the duty to give notice of the right to consult a lawyer arises at the beginning of the interrogation of a person suspected of committing an offence (regarding the difficulty in determining the borderline on the question of when a person turns from a ‘witness’ into a ‘suspect,’ see Almaliah v. State of Israel [15]). Indeed, in Canada, South Africa and the United States the duty to give notice of the right to consult a lawyer applies not only with regard to persons under arrest but also with regard to suspects who are detained for the purposes of interrogation. With regard to English law, the duty to give notice of the right to consult a lawyer applies, as a rule, to a ‘person under arrest’ when he arrives at the police station (see s. 58(a) of the Police and Criminal Evidence Act 1984 (hereafter: ‘PACE’); see also Police and Criminal Evidence Act 1984 Code of Practice C, para. 3.1) Notwithstanding, there are circumstances in which the duty to give notice of the right to consult a lawyer applies even before the suspect is arrested (see PACE Code of Practice C, para. 3.21).

Prima facie, the question of the interpretation of the term ‘person under arrest’ in s. 32 of the Arrests Law should have arisen in the circumstances of the case before us, since the confession of the appellant was taken from him when he was suspected of offences under the Dangerous Drugs Ordinance and was being detained for the purposes of interrogation, but before he received a notice that he was under arrest for these offences. In the aforesaid circumstances, the question whether, according to the aforesaid s. 32, the interrogator should have warned the appellant before taking his statement of his right to consult a lawyer would appear to arise. But in practice, for the reasons that will be made clear below, I agree with the position of the Appeals Court Martial that a decision with regard to the interpretation of the term ‘person under arrest’ in the aforesaid s. 32 is not required in the appellant’s case. Therefore, even though I am inclined to adopt the broad interpretation of the term ‘person under arrest’ in s. 32 as argued by counsel for the defence, I do not see any need to decide this question in the present case, and I leave it undecided.

The breach of the duty to give the notice in the case of the appellant

18. As has been clarified above, the interrogation of the appellant was conducted by the military police because he was a soldier. Under the provisions of s. 227A of the Military Jurisdiction Law, an interrogation as aforesaid is subject to the provisions of ss. 32 to 36 of the Arrests Law, mutatis mutandis. Therefore, the provisions of the Arrests Law concerning the right to meet with a lawyer and to receive notice of this apply also to soldiers being interrogated by the military police. Notwithstanding, s. 227A1 of the Military Jurisdiction Law further provides the following:

‘Soldier who is interrogated    227A1. Without derogating from the provisions of section 227, the provisions of section 34 and 35 of the Criminal Procedure (Enforcement Powers — Arrests) Law shall apply with regard to a soldier who is interrogated and under the law there is an almost certain possibility that he will be arrested, all of which according to the case and mutatis mutandis as stated in section 227A; for the purpose of this section, ‘under the law’ — including under case law.’

Thus we see that with regard to the interrogation of soldiers by the military police, the legislature expressly provided that the right to consult a lawyer and the duty to give notice of this right shall apply to every soldier who is interrogated and with regard to whom, under the law, ‘there is an almost certain possibility that he will be arrested.’ Thus, taking into account the special characteristics of soldiers and the interrogation thereof, the legislature saw fit to provide expressly that the existence of an almost certain possibility that the soldier will be arrested is sufficient to give rise to his right to consult a lawyer and the duty to give notice thereof. Moreover, with regard to soldiers there is also an arrangement in the Military Jurisdiction Law according to which any person being interrogated who is soldier and who is likely to be arrested, and any accused who is a soldier, are entitled to representation by the military defender’s office (see s. 227A(6) and s. 316 of the aforesaid law).

19. Section 227A1 of the Military Jurisdiction Law was adopted in 1998 within the framework of the thirty-fourth amendment of the law. Therefore, when the appellant was interrogated in 1996, the aforesaid provision had not yet been enacted. Notwithstanding, the guidelines of the military police that were in forced at that time determined a similar arrangement to the one enshrined in the aforesaid s. 227A1, according to which: ‘should it be known in advance that a soldier is going to be arrested, he should be given notice of the suspicions and his rights before he is interrogated, including the right to consult with a lawyer’ (Public Defender’s Office exhibit 8). In view of this, there is no dispute between the parties before us that under the law that prevailed at the time the appellant was interrogated, there arose a duty to give notice of the right to consult a lawyer when it was known in advance that the soldier under interrogation was likely to be placed under arrest, even before a decision was made to arrest him. There is also no dispute that the military interrogator who interrogated the appellant acted contrary to what was required by the aforesaid guideline: at the beginning of the interrogation of the appellant on 18 December 1996, it was clear that he was likely to be arrested, in view of the fact that when he was admitted to Prison 6 a dangerous drug of the cannabis type was found in his possession. Notwithstanding, the military interrogator began to take the appellant’s statement without first warning him of his right to consult a lawyer. Moreover, even after the military interrogator’s superior officer ordered him in a telephone conversation during the interrogation to place the appellant under arrest, the interrogator continued to take the statement and only approximately a quarter of an hour after he had finished taking it, he notified the appellant that he was under arrest and that he had the right to consult a lawyer. There is therefore no dispute that the military interrogator acted illegally when he refrained from warning the appellant with regard to his right to consult a lawyer when he began to take his statement, or at least after his superior officer told him, while he was taking the statement, to place the appellant under arrest. In view of the aforesaid omission of the military interrogator, the appellant was not aware of the right to consult a lawyer before the first statement was taken from him. Therefore the appellant did not ask to consult a lawyer before he confessed that he had made use of a dangerous drug when he was a soldier. In these circumstances, it is agreed by the parties before us that the failure to notify the appellant of his right to consult a lawyer amounted to a violation of the actual right to consult a lawyer.

20. In their written summations, the parties extensively addressed the question whether the failure to warn the appellant at the beginning of his interrogation with regard to his right to consult a defence attorney amounted to a violation of a constitutional right. This question has no simple solution, in view of the fact that the right to consult a lawyer is not expressly mentioned in the Basic Law: Human Dignity and Liberty. Admittedly, the constitutional right to dignity and liberty contains a variety of values, and it would appear that it has a strong connection with the rights of a suspect, a person under arrest and a defendant in criminal proceedings. Notwithstanding, various approaches are possible with regard to the question of which of the procedural rights in the criminal proceeding are indeed included within the framework of the constitutional right to dignity and liberty, and what is the scope of the constitutional protection given to rights that are not expressly mentioned in the Basic Law (see, in this regard, my remarks in CrimA 7335/05 Public Defender’s Office, Nazareth District v. State of Israel [21], at para. 9 of my opinion; for an approach that calls for care in extending the scope of the rights included in human dignity and liberty without them being expressly mentioned in the Basic Law, see HCJ 453/94 Israel Women’s Network v. Government of Israel [22], at pp. 535-536 {467-468}, per Justice Zamir; A. Bendor, ‘Criticism of the Relativity of Basic Rights,’ 4 Mishpat uMimshal (1997) 343, at p. 344; H. Sommer, ‘Unmentioned Rights — On the Scope of the Constitutional Revolution,’ 28 Hebrew Univ. L. Rev. (Mishpatim) (1997) 257, at pp. 267, 331, 337; for an approach that supports the inclusion of procedural rights of suspects, persons under arrest and defendants in criminal proceedings in the constitutional right to dignity and liberty, see A. Barak, Interpretation in Law — Constitutional Interpretation (vol. 3, 1994) at pp. 431-433; M. Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 27, at p. 34; E. Gross, ‘The Procedural Rights of the Suspect or the Accused under the Basic Law: Human Dignity and Liberty,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) 155 (1996), at pp. 156, 179; Y. Karp, ‘The Criminal Law — A Janus of Human Rights: Constitutionalization in the light of the Basic Law: Human Dignity and Liberty,’ 42 HaPraklit 64 (1995), at pp. 80-82; for statements in the case law of this court according to which the right to consult a lawyer constitutes a constitutional right by virtue of its being derived from the dignity and liberty of the person under arrest, see Sufian v. IDF Commander in Gaza Strip [11], at pp. 847-848, and 850 per Vice-President Elon; HCJ 6302/92 Rumhiya v. Israel Police [23], at p. 212, per President Barak; CrimApp 5136/98 Manbar v. State of Israel [24]; Marab v. IDF Commander in Judaea and Samaria [19], at p. 380 {212}, per President Barak; Association for Civil Rights in Israel v. Minister of Public Security [12], at p. 764, per Justice Rivlin).

It should be noted that in Canada and South Africa the right to consult a lawyer is given an express constitutional status. In Canada the right to consult a lawyer is enshrined in s. 10(b) of the Charter of Rights and Freedoms, whereas in South Africa the aforesaid right is enshrined in the provisions of s. 35(2)(b) of the Constitution of 1996. In the United States, the Supreme Court has recognized the right to consult a lawyer as a constitutional right, since it is derived from the right to representation under the Sixth Amendment of the Constitution and also from the right not to incriminate oneself and the right to due process that are protected within the framework of the Fifth Amendment of the Constitution (see Miranda v. Arizona [104]; see also W.R. LaFave and J.H. Israel, Criminal Procedure (second edition, 1992), at pp. 529-530). In addition, we should point out that the draft Basic Law: Trial Rights (Draft Laws 1994, 335), which was prepared by the Minister of Justice and was tabled in the Knesset in 1994, proposed to give an express constitutional status to the right of a person under arrest to meet with a lawyer and the right to receive a notice of this (see s. 6 of the draft law). As is well known, this proposal did not become law.

After considering the various aspects involved in the matter, I have come to the conclusion that in the case before us we do not need to decide the comprehensive and complex issue concerning the constitutional status of the procedural rights of suspects, persons under arrest and defendants in criminal proceedings, even though it seems that in our case law there is a trend towards the approach that the right to consult a lawyer is a constitutional right. Nonetheless, even if we say that the right of a person under arrest to consult a lawyer does not have a super-legislative constitutional status — and on this subject I see no need to express an opinion — no one doubts its importance and centrality in our legal system. Moreover, even if the right to consult a lawyer is not included within the narrow inner circle of the constitutional right to human dignity and liberty, it is possible to say that under the influence of the Basic Laws the status of the aforesaid right and the duty to take account of it has been strengthened; this is because of its possible connection with the dignity and liberty of the person under interrogation and in view of its being a part of the right to a fair trial in criminal proceedings which we shall discuss extensively later. Consequently, a failure to give the statutory notice with regard to the right to consult a lawyer may, in appropriate circumstances, lead to the inadmissibility of a confession made by the accused in an interrogation. What the normative basis for this should be and in what circumstances such inadmissibility will be required are the questions that will lie at the heart of our further deliberations.

Section 12 of the Evidence Ordinance — a ‘free and willing’ confession

21. For decades, the provisions of s. 12 of the Evidence Ordinance have governed the question of the admissibility of a confession made during an interrogation of a defendant. The following is the wording of the section:

‘Confession    12. (a) Testimony concerning a confession of the accused that he committed an offence shall be admissible only if the prosecutor brings testimony concerning the circumstances in which the confession was made and the court sees that the confession was made freely and willingly.’

                (Emphasis supplied).

A similar arrangement is provided in s. 477 of the Military Jurisdiction Law, which states:

‘Confession of accused as evidence    477. A court martial shall not admit a confession of an accused in evidence unless it is persuaded that it was made by the accused of his own free will.’

                (Emphasis supplied).

There is no dispute between the parties before us that the ‘free will’ test provided in s. 477 of the Military Jurisdiction Law is substantially the same as the ‘free and willing’ test provided in s. 12 of the Evidence Ordinance. Therefore, even though our deliberations below will focus on the interpretation of the provisions of s. 12 of the Evidence Ordinance, our interpretive conclusions will also be valid with regard to s. 477 of the Military Jurisdiction Law.

22. In the notice of appeal that they filed, counsel for the appellant argued that since the Basic Law: Human Dignity and Liberty was enacted, the prevailing interpretation of the rule of inadmissibility provided in s. 12 of the Evidence Ordinance, as determined in the case law of this court, ought to be changed. According to the argument, in the spirit of the Basic Law it should be held that since the appellant was not warned according to law at the beginning of his interrogation with regard to his right to consult a lawyer, the confession that was taken from him is not made ‘freely and willingly’ and therefore it should be declared inadmissible in accordance with the provisions of the aforesaid law. In order to make a decision with regard to this argument, let us first discuss the interpretation given to the aforesaid s. 12 in the case law of this court before the enactment of the Basic Law: Human Dignity and Liberty. Then let us turn to examine the question whether after the enactment of the Basic Law our prevailing case law interpretation of the aforesaid s. 12 ought to be changed, and whether we should decide that a failure to give the statutory warning with regard to the right to consult a lawyer necessarily makes a defendant’s confession inadmissible, as argued by defence counsel.

The interpretation of section 12 of the Evidence Ordinance before the Basic Law

23. The rule of inadmissibility provided in s. 12 of the Evidence Ordinance has its origins in English common law (see Ibrahim v. R. [109]). Initially, the aforesaid rule was intended to examine the circumstances concerning the manner of taking a confession within the framework of an interrogation by a person in authority (see the remarks of Justice Or in CrimA 5614/92 State of Israel v. Mesika [25], at pp. 677-678 and the references cited there; for the opinion that the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance applies also to confessions made before persons who are not in authority, see Y. Kedmi, On Evidence (vol. 1, 2004), at p. 12).

In accordance with the rule provided in s. 12 of the Evidence Ordinance, the court should declare a confession of an accused inadmissible, if it was not made freely and willingly. The definition of when a confession is made ‘freely and willingly’ is not simple, and the case law of this court has had to contend with this question from the outset. A person who is under interrogation for offences of which he is suspected experiences psychological pressure and physical discomfort that are inherent to the situation in which he finds himself. ‘An interrogation by its very nature places the person under interrogation in a difficult position… any interrogation, no matter how fair and reasonable, places the person under interrogation in embarrassing and trying situations, intrudes into his private concerns, invades the innermost parts of his soul and places him under serious emotional pressure’ (see HCJ 5100/94 Public Committee Against Torture v. Government of Israel [26], at pp. 834-835 {589-590}, per President Barak, and the references cited there). In view of this, it is clear that the expression ‘freely and willingly’ should not be given a literal interpretation. Indeed, the meaning given to this term over the years in the case law of this court was a technical-legal one, according to which a confession of an accused will be inadmissible under the aforesaid s. 12 only if improper ‘external pressure’ was exerted on him at the time of the interrogation to such an extent that it was capable of undermining his ability to choose freely between making a confession and not making one (see Sich v. Attorney-General [20], at p. 808; CrimA 636/77 Levy v. State of Israel [27], at p. 774; CrimA 4427/95 A v. State of Israel [28], at p. 564; Smirk v. State of Israel [18], at p. 541; CrimFH 4342/97 El Abid v. State of Israel [29], at pp. 837, 865).

The question of what is improper ‘external pressure’ that is capable of undermining the ability of the accused in his interrogation to choose freely between making a confession and not making one will be considered later. At this stage of our deliberations, we should emphasize that even if it is not proved that a confession made by an accused in his interrogation is admissible as evidence because it is made ‘freely and willingly,’ the court should also examine the weight and credibility of the confession. This is because ‘… even the use of interrogation methods that are permitted may lead to a person being interrogated confessing an offence that he did not commit,’ because of internal pressures in the human soul (see the remarks of President Shamgar in FH 3081/91 Kozali v. State of Israel [30], at p. 448).

The conditions for determining the admissibility and weight of a confession of an accused indicate that even though a confession that was obtained by a person in authority constitutes admissible evidence to prove guilt in criminal cases, statute and case law provide barriers whose purpose is to address the concerns involved in admitting it as evidence (for the reasons for the aforesaid concerns and for the possible factors leading to the making of false confessions in interrogations before persons in authority, see the Report of the Commission chaired by Justice Goldberg concerning Convictions based solely on a Confession and concerning the Grounds for a Retrial (1995), at pp. 8-10 (hereafter: the Report of the Commission concerning Convictions based solely on a Confession); B. Sanjero, ‘The Confession as a Basis for a Conviction — “Queen of Evidence” or Empress of False Convictions,’ 4 Alei Mishpat (2005) 245, at p. 249 et seq.; for the dominant approach in our case law, whereby a confession of an accused constitutes evidence for proving guilt in criminal trials, whose admissibility and weight will be examined in accordance with the circumstances of each individual case, see El Abid v. State of Israel [29], at pp. 819-820 per Justice Or, at pp. 833-834 per Justice M. Cheshin, at p. 855 per Justice Strasberg-Cohen, at p. 857 per Justice Mazza and at p. 865 per President Barak; for the approach that regards the confession of an accused as ‘suspect evidence’ whose credibility should be examined ab initio from a sceptical perspective, see El Abid v. State of Israel [29], at pp. 836-839, per Justice Dorner). In this context it should be noted that in 2002 the Criminal Procedure (Interrogation of Suspects) Law, 5762-2002, was passed. This provides that, as a rule, the interrogation of a suspect at a police station for serious offences shall be documented visually subject to the exceptions listed in the law. This arrangement is supposed to be implemented gradually by means of orders made by the Minister of Public Security as stated in s. 16(b) of the law. The statutory duty to document interrogations of suspects visually or audibly is intended to allow the court to obtain an impression, as closely and objectively as possible, of the manner in which the interrogation was conducted and the circumstances in which the confession was made during it. The purpose of this is to help the court decide the admissibility and weight of confessions made in an interrogation, and to allow better protection of the rights of persons under interrogation (see the explanatory notes to the draft Evidence Ordinance Amendment (no. 15) (Confession of an Accused to Serious Offences) Law, 5761-2000).

24. The question of what is the purpose of the rule of inadmissibility provided in s. 12 of the Evidence Ordinance has undergone development over the years. Initially, the ‘free will’ test was used to render inadmissible confessions that were obtained by employing interrogation methods that mainly involved force and violence, or the threat thereof, and to render inadmissible confessions that were obtained by employing unfair entrapments or inducements. At that time, the prevailing approach in case law was that the ‘free will’ test was intended to safeguard the credibility of confessions made in the presence of persons in authority. According to that approach, improper interrogation methods, such as violence, force and threats or inducements and promises by a person in authority, were likely to lead to the making of false confessions and therefore these confessions should be regarded as inadmissible ab initio (with regard to the fact that the ‘free will’ test was originally intended to safeguard the credibility of confessions in English common law, see C. Tapper, Cross and Tapper on Evidence (eighth edition, 1995), at p. 664; M.A. Godsey, ‘Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-Incrimination,’ 93 Cal. L. Rev. (2005) 465, at pp. 481-482; with regard to the fact that this court, in its early years, adopted from the common law the approach that the rule of inadmissibility was intended to safeguard the credibility of confessions, see CrimA 2/48 Al-Lodj v. Attorney-General [31], at pp. 96-97, per Justice S.Z. Cheshin; Yassin v. Attorney-General [6], at p. 1554; CrimA 242/63 Kariti v. Attorney-General [32], at pp. 497-498, per Justice HaLevy; CrimA 270/65 Kasey v. Attorney-General [33], at p. 566, per Justice Sussman).

Over the years, the emphasis was changed to include not only forcible measures and physical violence that were regarded as a ground for inadmissibility, but also claims with regard to exerting unfair emotional or psychological pressure on defendants in their interrogation. At the same time, there was a change in thinking with regard to the reasons underlying the inadmissibility rule provided in the aforesaid section 12. Alongside the purpose of safeguarding the credibility of confessions, some authorities were of the opinion that the ‘free will’ test was intended to protect the rights of defendants in an interrogation and the propriety of the criminal proceeding. According to this approach, declaring a confession inadmissible is intended to provide relief for the violation of the human dignity of the person under interrogation, and in order to prevent the court being a party to the illegality perpetrated by the interrogation authorities when admitting the evidence in a trial. In addition, an opinion was expressed that the purpose of the inadmissibility rule provided in the aforesaid s. 12 is to educate and deter the interrogation authorities against the use of improper interrogation methods. (For the development in thinking with regard to the reasons underlying the inadmissibility rule enshrined in s. 12, see E. Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ 30 Hebrew Univ. L. Rev. (Mishpatim) (1999) 145, at pp. 156-157; E. Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ Landau Book (A. Barak, E. Mazuz, eds., 1995, vol. 2) 983, at p. 1018; also see and cf. A. Stein, ‘Coincidence and Theory in Dispensing Justice,’ 29 Hebrew Univ. L. Rev. (Mishpatim) (1998) 5, at pp. 6-8; on the development in understanding the reasons for the ‘free will’ test in English common law before the enactment of the Police and Criminal Evidence Act 1984, see: Cross and Tapper on Evidence (1995), supra, at pp. 666-668).

25. Since the end of the 1970s, three interpretive approaches can be seen with regard to the reasons for the rule of inadmissibility in s. 12 of the Evidence Ordinance. As we shall clarify below, the three interpretive approaches are based, to a greater or lesser degree, on the reason concerning the safeguarding of the credibility of confessions; the difference between the approaches is reflected in the weight given to the purpose concerning protection of the rights of a person under interrogation.

According to one interpretive approach, whose main proponent in case law was President Landau, improper interrogation methods such as physical violence, threats, unfair inducements and promises or exerting prohibited psychological pressure on the accused in his interrogation automatically make his confession inadmissible in view of the serious violation of his dignity as a human being and of his physical and emotional integrity. In order to protect the rights of the person under interrogation, the provisions of s. 12 of the Evidence Ordinance establish an irrebuttable presumption according to which a confession that was obtained by improper methods as aforesaid is not a true confession; therefore it should be declared inadmissible in limine, without any need to consider the degree to which the improper interrogation methods influenced the free will of the person under interrogation de facto and the truth of the content of the confession. According to this approach, the question whether we should be concerned with regard to the truth of a confession that was obtained by improper methods is, therefore, a question of law or at least a mixed question of law and fact (see the remarks of President Landau in CrimA 347/75 Hirsch v. State of Israel [34], at p. 200).

Alongside the aforesaid approach, another interpretive approach has been expressed in the case law of this court. The chief proponent of this approach was Justice H.H. Cohn. According to this approach, even when there are interrogation methods that are improper in the extreme, the court should examine, from a factual point of view, the circumstances of each case on its merits, in order to determine whether the improper methods were sufficient to undermine the free will of the accused de facto when making his confession, in which case it will be declared inadmissible because of the concern that it may be a false confession, or whether, notwithstanding the adoption of the aforesaid interrogation methods, the accused retained the ability to make a free choice with regard to making his confession, in which case the evidence will be admissible, and the trial will focus on the question of its weight as evidence. According to this interpretive approach, the illegality in obtaining the confession does not in itself make it inadmissible, as long as the accused was not deprived of his free will in making his confession and there is no concern with regard to the truth of its content. In the words of Justice H.H. Cohn: ‘… the accused’s confession is one thing, and the abuse by his interrogators another’ (CrimA 369/78 Abu-Madijem v. State of Israel [35], at p. 381). This interpretive approach regards the main purpose of the inadmissibility rule provided in s. 12 of the Evidence Ordinance as safeguarding the credibility of the confessions made in an interrogation (see also the remarks of President Y. Kahan in CrimA 115/82 Muadi v. State of Israel [36], at p. 249; see also the opinion of Justice H.H. Cohn in CrimA 183/78 Abu-Midjem v. State of Israel [37]).

The essence of the difference between the two interpretive approaches was discussed by Justice H.H. Cohn as follows:

‘… In practice we are deliberating upon the various facets of the question of the proper judicial policy that this court should adopt. On the one hand, it is our duty to protect human dignity so that it is not harmed by those who abuse it, and to do everything in out power to restrain the police interrogators from obtaining the goal of their interrogation by improper and despicable methods; on the other hand, it is our duty to fight crime, which is ever on the increase and is destroying everything good in this country, and to prevent public safety being abandoned to the villainies of violent criminals merely because they were hit by police interrogators. It seems to me that the difference between us is merely one of priorities: according to my esteemed colleague [President M. Landau] the protection of human dignity and basic rights takes precedence, whereas according to me the protection of public safety takes precedence’ (Abu-Midjem v. State of Israel [37], at pp. 546-547) (square parentheses supplied).

A third interpretive approach with regard to the provisions of s. 12 of the Evidence Ordinance was adopted in Muadi v. State of Israel [36], in the opinion of Justice Goldberg (at pp. 222-224). This interpretive approach constitutes a middle path between the other two interpretive approaches that we discussed above. According to this approach, in general, the illegality in itself does not render a confession inadmissible under s. 12 of the Evidence Ordinance. Therefore, the court should examine each case, from a factual perspective, on its merits in order to discover whether the improper interrogation method deprived the accused of his free will in making his confession; if it did, the confession will be inadmissible because of concerns with regard to the truth of its content. Notwithstanding, in cases where the level of impropriety amounted to a violation of the accused’s ‘humanity’ and reached ‘… a brutal and inhuman level of interrogation,’ then the confession should be declared inadmissible under s. 12 automatically, without considering the de facto effect of the improper interrogation method on the free will of the accused. This approach combines the various possible reasons for the inadmissibility rule in s. 12 of the Evidence Ordinance. It gives considerable weight to the purpose concerning the protection of the credibility of defendants’ confessions in order to protect public safety and fight crime. Nonetheless, in cases where use was made of interrogation methods that are so extremely wrong that they ‘violate the humanity’ of the person under interrogation, then this approach sees fit to attribute great weight to the right to human dignity and the integrity of body and mind, without examining whether in the circumstances of the case the accused was de facto deprived of his free will when making his confession. It would appear that this interpretive approach is the one accepted by the case law of this court since the judgment given in Muadi v. State of Israel [36] (see, for example, the opinion of Justice Halima in CrimA 154/85 Avroshami v. State of Israel [38]; the remarks of President Shamgar in Kozali v. State of Israel [30], at pp. 446-448; and the remarks of Vice-President Mazza in LCrimA 3268/02 Kozali v. State of Israel [39], at para. 28).

26. For the purposes of the case before us, it should be emphasized that according to the three interpretive approaches that we have discussed, a failure to give the statutory notice concerning the right to remain silent or the right to consult a lawyer does not in itself make a confession inadmissible under section 12 of the Evidence Ordinance. It should be noted that even according to the interpretive approach of President Landau, which emphasizes the protection of the defendant’s rights in his interrogation, a failure to give the statutory notice concerning the right to remain silent and the right to consult a lawyer does not amount to an improper interrogation method of the kind that necessarily leads to the inadmissibility of the confession. The position adopted in our case law is that the effect of the violation of the aforesaid rights on the free will of the person under interrogation and on the weight of the confession that he made should be examined in each case on its merits (for cases in which it was held that the absence of a statutory warning concerning the right to remain silent does not necessarily lead to the inadmissibility of a confession made in the interrogation, even though punctiliousness with regard to the warning of a suspect before taking his statement makes it easier for the court to determine the admissibility and weight of the confession, see Yassin v. Attorney-General [6], at p. 1556; CrimA 161/77 Zohar v. State of Israel [40], at p. 329; CrimA 450/82 Abu-Ayin Tripi v. State of Israel [41], at p. 603; Balhanis v. State of Israel [14], in the opinion of Justice Elon and the opinion of Justice Kedmi; for judgments in which it was held that an illegal violation of the right to consult a lawyer does not necessarily lead to the inadmissibility of a confession made in an interrogation, and that the effect of the violation of the aforesaid right on the free will of the person under interrogation and the weight of the confession that he made should be examined in each case on the merits, see Zakkai v. State of Israel [8], at pp. 64-65 and 68, per President Shamgar; Eisenman v. State of Israel [10], at p. 454, per Justice Goldberg; CrimA 6021/95 Gomez-Cardozo v. State of Israel [42], at pp. 784-785, per Justice M. Cheshin; Smirk v. State of Israel [18], at pp. 545-555; it should be noted that the cases in which a confession of a defendant was held to be inadmissible under the aforesaid s. 12 because a statutory notice was not given with regard to the right to remain silent or the right to consult a lawyer have been very few, and they were based on the special circumstances of each case. See, for example, CrimA 277/78 State of Israel v. Tuvyahu [43], at pp. 300-301, per Vice-President Landau; CrimA 611/80 Matosian v. State of Israel [44], at pp. 105-107, per President Shamgar).

In addition to the aforesaid, we should point out that s. 478 of the Military Jurisdiction Law provides a similar arrangement to the one determined in case law. It states as follows:

‘Confession of accused of his own free will      478. The fact that a statement of an accused that contains a confession was obtained other than in accordance with the rules stipulated in sections 266 to 272 [which include the duty to warn an accused about his right to remain silent in an interrogation] does not prevent the court martial from determining that the accused made the confession of his own free will.’

                (Square parentheses supplied).

It follows that the arrangement provided in s. 478 of the Military Jurisdiction Law is consistent with the interpretation given in case law to the provisions of s. 12 of the Evidence Ordinance, according to which a failure to give the statutory notice concerning the right to remain silent or the right to consult a lawyer does not, in itself, make a confession of an accused inadmissible; this depends on the circumstances of each case on its merits.

27. In the notice of appeal that they filed, counsel for the appellant argued that in view of the provisions of the Basic Law: Human Dignity and Liberty, the interpretation accepted by this court should be changed and it should be held that a failure to give the statutory warning with regard to the right to consult a lawyer should necessarily lead to a confession being inadmissible under s. 12 of the Evidence Ordinance.

Before we turn to examine the aforesaid argument, we should point out that over the years considerable criticism has been levelled at the ‘free will’ test both in Israel and in other countries that have adopted the aforesaid test from English common law. The main arguments made against it were that it is too artificial and vague a test for the purpose of deciding the question of the admissibility of confessions; that the reasons underlying it are not sufficiently clear; and that it is very difficult to examine the effect of improper interrogation methods on the free will of the person under interrogation in accordance with the circumstances of each case (see, for example, M. Landau, ‘Notes on the amended draft Evidence Law,’ 16 Hebrew Univ. L. Rev. (Mishpatim) (1986) 17, at p. 26; the Report of the Commission concerning Convictions based solely on a Confession, supra, at p. 12; see also LaFave and Israel, Criminal Procedure, supra, at pp. 298-299; Godsey, ‘Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-Incrimination,’ supra, at pp. 469-471; M. Zander, The Police and Criminal Evidence Act 1984 (London, fourth edition, 2003), at pp. 312-313). And indeed, in England, the birthplace of the ‘free will’ test, as well as in Australia, where this test was adopted in case law from English common law, the legislature has seen fit to abandon the ‘free will’ test and replace it with other criteria for examining the admissibility of defendants’ confessions (see s. 76 of the Police and Criminal Evidence Act 1984 in England and ss. 84, 85 and 90 of the Uniform Evidence Acts 1995 in Australia).

In addition to the aforesaid, it should be noted that the federal courts in the United States adopted in their case law the ‘free will’ test from English common law, and in 1936 this test was applied to the states by means of the Fourteenth Amendment of the Constitution, which concerns the right to a fair trial (see Lafave and Israel, Criminal Procedure, supra, at p. 294). After the decision was made in Miranda v. Arizona [104], and its rules became the main test for declaring defendants’ confessions inadmissible, the ‘free will’ test continued to be used to examine the admissibility of confessions, even though the rules established in Miranda v. Arizona [104] were added to this test, according to which a failure to give a warning and notice with regard to the right to consult a lawyer became a ground for declaring a confession inadmissible. Recently the status of the ‘free will’ test has been significantly diminished as a satisfactory criterion for admissibility, in view of the decision of the Supreme Court of the United States in Dickerson v. United States [105]. That case considered the provision of federal law that stated that a confession of an accused is admissible as evidence if it is proved that it was made freely and willingly (18 U.S.C. 3501). The Supreme Court of the United States declared the aforesaid provision of statute void. It can be understood from the judgment of the court that the ‘free and willing’ test does not provide sufficient protection for the right not to incriminate oneself that is enshrined in the Fifth Amendment of the Constitution, and therefore it is incapable of replacing the rules set out in Miranda v. Arizona [104] with regard to the admissibility of defendants’ confessions. In view of the rule in Dickerson v. United States [105], it would appear that in the American legal system the status of the ‘free and willing’ test has been weakened even further as a sole test.

On the other hand, we should point out that in the Canadian legal system, which also adopted the ‘free and willing’ test in case law from the English common law, this test continues to be used even today in order to examine the admissibility of confessions made by defendants (see R. v. Oickle [107], which we shall discuss further below).

28. Unlike the common law countries where the ‘free and willing’ test was adopted in case law, in our legal system this test was enshrined ab initio in statute (see s. 9 of the Evidence Ordinance from the period of the British Mandate, which was replaced in 1971 by s. 12 of the Evidence Ordinance [New Version]). Over the years, several attempts were made to propose comprehensive legislative amendments to the Evidence Ordinance, within which framework it was suggested that the ‘free and willing’ test should be replaced by other criteria for examining the admissibility of defendants’ confessions. But these proposals did not become law (see s. 36 of the draft Evidence Law, 5741-1981, of Prof. U. Yadin, which was published in 34 HaPraklit (1981) 137, at p. 147; the two versions of s. 37 of the draft Evidence Law, 5745-1985, which were drafted by a commission chaired by President M. Landau and published in 16 Hebrew Univ. L. Rev. (Mishpatim) (1986) 3; the Report of the Commission concerning Convictions based solely on a Confession, at pp. 11-19, and the minority opinion of Prof. Kremnitzer, ibid., at pp. 58-64; see also various private draft laws for amending s. 12 of the Evidence Ordinance, in para. 13 supra).

In the case before us, we see no need to discuss the criticisms that have been levelled at the ‘free and willing’ test and the other tests that have been proposed over the years as replacements for this test. The premise for the continuation of our deliberations is that the provisions of s. 12 of the Evidence Ordinance remains on the statute books and its validity is undisputed. In view of this, the question before us is whether, after the enactment of the Basic Law: Human Dignity and Liberty, the interpretation given in case law to the aforesaid provision of law should be changed. Let us now turn to consider this question.

Interpretation of s. 12 of the Evidence Ordinance after the Basic Law

29. The question of the effect of the Basic Law: Human Dignity and Liberty on the interpretation of provisions of law enacted before the Basic Law came into force was considered extensively in the judgment of this court in CrimApp 537/95 Ganimat v. State of Israel [45] and in CrimFH 2316/95 Ganimat v. State of Israel [46]. The Basic Law: Human Dignity and Liberty expressly states that the previous law would remain valid, and therefore the provisions of s. 12 of the Evidence Ordinance remained in force even after the Basic Law was enacted (see s. 10 of the Basic Law). There is also no dispute that the old legislation should be interpreted in the spirit of the Basic Laws. An express statement to this effect was made in s. 10 of the Basic Law: Freedom of Occupation. It is also the interpretation required within the framework of the Basic Law: Human Dignity and Liberty. This was discussed by Justice M. Cheshin, who stated that ‘… the Basic Law ought to serve as an inspiration in interpretation. The legislature planted a bed of roses in the garden of law, and we smell its sweet aroma. We shall interpret laws of the past and the perfume of the Basic Law will inspire us’ (CrimFH 2316/95 Ganimat v. State of Israel [46], at p. 643; emphasis in the original).

In Ganimat v. State of Israel [46] there were admittedly different approaches with regard to the nature and scope of the interpretive effect of the Basic Law on the law that predated it (see the fundamental approach of President Barak in Ganimat v. State of Israel [46], at pp. 652-655, as compared with the position of Justice M. Cheshin, ibid. [46] at pp. 639-643; see also HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [47], at pp. 780-781, per Justice M. Cheshin, and at pp. 786-787, per President Barak). But these differences in approach have no practical significance in the case before us, since even according to the law that prevailed before the Basic Law was enacted, it was possible to reach different interpretive conclusions than the ones that were accepted previously.

30. As stated, the rule of inadmissibility prescribed in s. 12 of the Evidence Ordinance was originally intended to safeguard the credibility of confessions made before persons in authority. Over the years, an interpretive development occurred with regard to the possible reasons underlying this rule. As I have made clear above, the purpose of protecting the rights of persons under interrogation was recognized in our case law before the Basic Laws concerning human rights were enacted (see the interpretive approach of President Landau and Justice Goldberg in para. 25 supra). The recognition of this purpose is consistent with the general interpretive premise in our legal system that every piece of legislation is intended to uphold and protect human rights. Notwithstanding, before the Basic Laws there was no unanimity in the case law of this court with regard to the question whether and in what circumstances the purpose concerning the protection of the rights of the person under interrogation should take precedence over the other purpose of safeguarding the credibility of defendants’ confessions. Even according to the interpretive approach that saw fit to attribute significant weight to the protection of the rights of a person under interrogation, the inadmissibility of the confession was based, inter alia, on an irrebuttable assumption that a confession obtained by improper methods is not a true confession (see the remarks of President Landau in Hirsch v. State of Israel [34], at p. 200; see also Muadi v. State of Israel [36], at pp. 223-224, per Justice Goldberg).

It would appear, therefore, that before the enactment of the Basic Laws, this court recognized the protection of the rights of the person under interrogation as a possible purpose of the rule of inadmissibility provided in s. 12 of the Evidence Ordinance; notwithstanding, the aforesaid purpose was not regarded as a main and independent purpose of the aforesaid s. 12, and the conceptual centre of gravity of the rule of inadmissibility under discussion was the concern that false confessions might be admitted in evidence (see in this regard, Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra, at p. 157; M. Mountner, ‘The Decline of Formalism and the Rise of Values in Israeli Law,’ 17 Tel-Aviv University Law Review (Iyyunei Mishpat) (1993) 503, at p. 549).

31. When the Basic Law: Human Dignity and Liberty was enacted, the status of human rights enshrined therein was elevated to a constitutional super-legislative status. This created a change in our normative status. This change is reflected first and foremost in the possibility of judicial review of the constitutionality of laws that have been passed since the enactment of the Basic Laws. Notwithstanding, this in itself does not exhaust the whole scope of the effect of the aforesaid Basic Laws. The spirit and principles of the Basic Laws cast their light on all branches of law and influence basic concepts and basic outlooks that exist within their framework. Inter alia, as aforesaid, they influence the interpretation of legislation that was enacted before the Basic Laws concerning human rights.

In this context, it should be emphasized that from its earliest days this court recognized rights of the individual and took them into account within the framework of its interpretation of existing legislation. Even before the enactment of the Basic Laws concerning human rights this court held that ‘… the purpose of every piece of legislation is to uphold and safeguard basic rights and not to violate them’ (per Justice Barak in CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [48], at p. 561). Notwithstanding, it appears that after the enactment of the Basic Laws, emphasis has been placed on the duty to take into account the rights enshrined in them within the framework of the interpretation of existing legislation, and in appropriate circumstances the weight that should be attributed to these rights even increased relative to competing values and public interests. This is the case in general, and it is particularly so in criminal law, which is closely bound to human dignity and liberty.

32. The Basic Law created an opportunity for a new interpretive perspective also with regard to the purpose of the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance. According to the spirit and principles of the Basic Law, the status of the purpose concerning the protection of the rights of the person under interrogation should be strengthened today, so that it becomes a main purpose that stands independently in order to render inadmissible a confession under s. 12 of the Evidence Ordinance. The significance of this is that in appropriate circumstances, of which details will be given below, a confession under the aforesaid s. 12 will be declared inadmissible because of the illegal violation of the rights of the person under interrogation, even when there is no concern with regard to the truth of the confession.

It should be noted that these remarks of mine do not negate the traditional purpose of the rule of inadmissibility under discussion, which concerns safeguarding the credibility of confessions. This purpose remains valid, as a part of the general purpose of the laws of evidence in criminal cases to discover the truth and prevent unsound convictions. Moreover, protecting the rights of the person under interrogation may lead to identifying interrogation methods that are likely to result in false confessions and miscarriages of justice. Notwithstanding, in view of the spirit and principles of the Basic Law, it is possible to determine that the interpretive centre of gravity has changed, and that today the protection of the rights of the person under interrogation is a main and independent purpose — not merely a secondary and ancillary one — for the inadmissibility of confessions under s. 12 of the Evidence Ordinance.

This background gives rise to the question of the rights of the person under interrogation that the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance is intended to protect. This question should be answered with regard to the language and wording of the aforesaid s. 12, with regard to the interpretation of the aforesaid section in case law as it has developed over the years, and in accordance with the spirit and principles of the Basic Law. Taking all of this into account, it appears that the rule of inadmissibility provided in s. 12 of the Evidence Ordinance was originally intended to protect two basic rights that have been recognized in our legal system for a long time, but the Basic Law: Human Dignity and Liberty has made an additional contribution to strengthening their status. The two rights are the right of the person under interrogation to be protected against physical and emotional harm, and the right to the autonomy of free will.

33. The right of an accused to be protected against physical and emotional harm and his right not to be degraded or humiliated more than is necessary as a result of the actual conducting of the interrogation were recognized in the case law of this court already before the enactment of the Basic Law as fundamental basic rights that were included in the ‘judicial charter of rights’ (see the remarks of Justice Barak in HCJ 355/79 Katlan v. Prisons Service [49], at p. 298, and the references cited there). As was noted above, the recognition of these rights affected the interpretation of s. 12 of the Evidence Ordinance before the Basic Law was enacted (see, for example, the interpretive approach of President Landau and Justice Goldberg in para. 25 supra). When the Basic Law: Human Dignity and Liberty was enacted, it was expressly provided therein that ‘There shall be no violation of the life, body and dignity of a human being, in as much as he is a human being’ and that ‘Every human being is entitled to protection for his life, his body and his dignity’ (ss. 2 and 4 of the Basic Law). In view of this, it would appear that there is ample support for the opinion that the right to be protected against physical and emotional harm and the right to be protected against acts of degradation and humiliation that significantly violate a person’s emotional wellbeing have risen to a constitutional super-legislative level as a result of the enactment of the Basic Law (see the remarks of Vice-President Elon in CrimA 3632/92 Gabbai v. State of Israel [50], at p. 490; see also Barak, Constitutional Interpretation, supra, at p. 420).

In view of the purpose concerning the protection of defendants’ rights in interrogations and the spirit of the Basic Law, the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance should be interpreted in such a way that improper interrogation methods that illegally violate the right of the person under interrogation to physical integrity or that humiliate and degrade him beyond what is required as a result of conducting the interrogation, will automatically lead to the inadmissibility of the confession, without it being necessary to examine the effect of the aforesaid interrogation methods on the truth of the confession made in the interrogation. This interpretation is closest in essence to the approach of Justice Goldberg in Muadi v. State of Israel [36], which it would appear is the approach that has been adopted in our case law. Notwithstanding, the nature and scope of the improper interrogation methods that will today be included within the scope of ‘a violation of the humanity of the person under interrogation’ is likely to be wider than in the past. This is because of the interpretive influence of the Basic Law and because of the conventional international law to which Israel is a party (see and cf. the opinion of President Barak in Public Committee Against Torture v. Government of Israel [26]; also see and cf. the minority opinion of Prof. Kremnitzer in the Report of the Commission concerning Convictions based solely on a Confession, at pp. 58-64).

In the circumstances of the appellant’s case, no claim was made that he was subjected to improper interrogation methods of the kind that are capable of humiliating and degrading the person under interrogation or of harming his physical or emotional wellbeing, and therefore this issue does not arise in the case before us.

34. In addition to the protection of the physical and emotional wellbeing of the person under interrogation, s. 12 of the Evidence Ordinance is intended, according to its express language, to protect the autonomy of the accused’s freedom of choice when making his confession in an interrogation (a ‘free and willing’ confession).

The right to the autonomy of free will was recognized in the case law of this court as a basic right of great importance before the Basic Laws of 1992 were enacted. Notwithstanding, it would appear that after the enactment of the Basic Law: Human Dignity and Liberty, the status of the aforesaid right has been strengthened, since it is derived directly from the conception of man as an end and not merely a means, and in view of the possible inclusion of the aforesaid right in the inner circle of the constitutional right to dignity and liberty. This was discussed by Vice-President Or in the following terms:

‘The recognition of the human right to autonomy is a basic element of our legal system, as a legal system of a democratic country… it constitutes one of the main reflections of the constitutional right of every person in Israel to dignity, which is enshrined in the Basic Law: Human Dignity and Liberty. Indeed, it has already been held that one of the expressions of the right to dignity is “… the freedom of choice of every person as a free being,” and that this reflects the approach that “every person… is a world in himself and an end in himself” (per President Barak in Barki Feta Humphries (Israel) Ltd v. State of Israel [47], in para. 3 of his opinion) … The significance of human dignity, in this context, was discussed by President Shamgar in CA 5942/92 A v. B [51], at p. 842, where he said that “Human dignity reflects, inter alia, the ability of a human being as such to formulate his personality freely, as he wishes, to reflect his ambitions and to choose the means of achieving them, to make his voluntary choices, not to be enslaved to arbitrary dictates, to be treated fairly by every authority and by every other individual, to enjoy equality between human beings…”.’ (CA 2781/93 Daaka v. Carmel Hospital [52], at p. 571 {462}).

(On the constitutional status of the right to autonomy of free will, see also the remarks of Justice Goldberg in CFH 2401/95 Nahmani v. Nahmani [53], at pp. 723-724 {389-390}; the remarks of Justice Rivlin in HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [54], at pp. 595-597; the remarks of Justice M. Cheshin in CrimApp 92/00 A v. State of Israel [55], at p. 250; A. Barak, ‘Human Dignity as a Constitutional Right,’ 41 HaPraklit (1993) 271, at pp. 277-279; H.H. Cohn, ‘The Values of a Jewish and Democratic State: Studies in the Basic Law: Human Dignity and Liberty,’ HaPraklit Jubilee Book 9 (1994), at p. 38; it should be noted that according to the approach of Y. Karp, the essence of the right to autonomy of free will — as opposed to the rights derived from it — is included within the framework of the inner circle of the constitutional right to dignity and liberty. See Y. Karp, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty,’ 25 Hebrew Univ. L. Rev. (Mishpatim) 129 (1995), at p. 142).

In view of the aforesaid, a significant and serious violation of the autonomy of will and the freedom of choice of the defendant in making his confession in an interrogation will lead to the inadmissibility of the confession under the aforesaid s. 12. It should be emphasized that in these remarks of mine I am not saying that every violation of a protected right of the person under interrogation will necessarily lead to the inadmissibility of his confession under s. 12 of the Evidence Ordinance. Such an interpretation would excessively harm the competing values concerning the discovery of the truth, fighting crime and protecting public safety, and it cannot therefore be adopted. The wording and language of s. 12 of the Evidence Ordinance testify that the rule of inadmissibility enshrined therein is intended to protect against a significant violation of the autonomy of will of the accused when making his confession. Therefore a violation of the aforesaid kind will lead to the inadmissibility of a confession under the aforesaid s. 12, provided that this is required by the circumstances of each case on its merits. This interpretive conclusion is consistent with the case law of this court prior to the Basic Law, according to which in every case, according to its circumstances, the court should examine whether the use of the improper interrogation method led to the accused being deprived of free will and the ability to choose whether to make his confession (see the remarks of Justice Goldberg in Muadi v. State of Israel [36], at pp. 224-225; the remarks of President Y. Kahan, ibid. [36], at pp. 251-252; the remarks of Justice Elon, ibid. [36], at pp. 263-268). Notwithstanding, whereas in the past the justification given for the inadmissibility of a confession under s. 12 relied on the assumption that denying the freedom of choice of the person under interrogation necessarily led to a concern as to the truth of his confession, in accordance with the spirit of the Basic Law, it should be held that the protection of the freedom of will of the person under interrogation today constitutes a purpose in its own right and a weighty and independent reason for declaring the confession inadmissible under s. 12 of the Evidence Ordinance.

35. Furthermore it should be noted that the right to autonomy of free will is one of the main reasons for protecting the right not to incriminate oneself and the right to remain silent. Therefore there are those who think that the rule of inadmissibility provided in s. 12 of the Evidence Ordinance was intended to protect these rights and the right to consult a law that is ancillary thereto (see, for example, Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra, at pp. 156 and 179; Y. Kedmi, On Evidence (2004, vol. 1), at p. 22). Admittedly, an illegal violation of the aforesaid rights within the framework of the interrogation process will constitute a weighty consideration when examining the admissibility of a confession under s. 12 of the Evidence Ordinance. This is because a violation of these rights may significantly violate the freedom of will and choice of the person under interrogation when making his confession. Thus, for example, there will be grounds to declare a confession inadmissible under s. 12 in circumstances where the accused was not warned of his right to remain silent and not to incriminate himself in the interrogation and of his right to consult a lawyer and he was not de facto aware of these rights, in such a way that he was deprived of the ability to chose whether to cooperate with his interrogators.

Nothing in the aforesaid derogates from the fact that the protection of the right to remain silent and the right to consult a lawyer are based on additional reasons to the protection of the autonomy of will of the person under interrogation. The balance between the various reasons underlying these rights assists in determining their boundaries and deciding the extent to which they are protected (for the various reasons for protecting a suspect’s right to remain silent and his right not to incriminate himself in his interrogation, see State of Israel v. Sharon [16], at p. 759, per Vice-President Or; see also B. Steinberg, ‘What Remains of the Warning about the Right to Remain Silent?’ 48 HaPraklit (2005) 163, at pp. 165-169; E. Gross, ‘The Right not to Incriminate Oneself — Is it really a Landmark in the Struggle of the Enlightened Man for Progress?’ 7 Mehkarei Mishpat (1989) 67, at pp. 172-181; Lafave and Israel, Criminal Procedure, supra, at p. 43; A.R. Amar and R.B. Lettow, ‘Fifth Amendment First Principles: The Self Incrimination Clause,’ 93 Mich. L. Rev. (1995) 857; for the various reasons underlying the protection of the right of a person under arrest to consult a lawyer, see para. 14 supra and the references cited there).

In view of the aforesaid, I am unable to accept the argument of counsel for the appellant that s. 12 of the Evidence Ordinance was intended to protect the full scope of the right to remain silent and the right to consult a lawyer, so that a violation thereof will necessarily lead to the inadmissibility of a confession under the aforesaid s. 12. As stated, according to the language and purpose of s. 12, it is intended to protect against a significant violation of the autonomy of free will of the person under interrogation. Consequently an illegal violation of the right to remain silent or the right to consult a lawyer will lead to the inadmissibility of a confession of an accused within the framework of the aforesaid s. 12 only when that violation is of such a nature and strength in the circumstances of the case that it seriously violates the freedom of choice and the autonomy of will of the person under interrogation in making his confession. Thus, for example, an illegal failure of the interrogators to give a warning about the right to remain silent in circumstances where it is proved that the accused was aware de facto of his right to remain silent will not lead to the inadmissibility of his confession under s. 12 of the Evidence Ordinance, since in these circumstances the ability of the accused to choose whether to cooperate with his interrogators is not significantly impaired (see the opinion of Justice Strasberg-Cohen in CrimA 5825/97 Shalom v. State of Israel [56], at pp. 944-945; also see and cf. the position of Prof. Bendor who is of the opinion that a confession should be inadmissible under s. 12 of the Evidence Ordinance only when there is a causal link between not giving the warning about the right to remain silent and the making of the confession in the interrogation; A. Bendor, ‘Inducing a Confession of an Accused and its Admissibility — Ends, Means and What Lies Between Them,’ 5 Pelilim (1996) 245, at pp. 265, 269).

36. In summary, even though I accept the position of counsel for the appellant that the provisions of s. 12 of the Evidence Ordinance should be interpreted in the spirit of the Basic Law, we should reject their argument that not giving a statutory warning with regard to the right to remain silent or the right to consult a lawyer necessarily leads to the inadmissibility of a confession under the aforesaid s. 12. Even though a violation of the aforesaid rights will constitute a weighty consideration within the framework of considering the admissibility of the confession, it is not a sole or decisive criterion. According to the language and purpose of the aforesaid s. 12, a confession should be declared inadmissible thereunder only when the illegal violation of the right to remain silent or the right to consult a lawyer created a significant and serious violation of the autonomy of will and freedom of choice of the accused when making his confession. The existence of such a violation will be examined in accordance with the circumstances of each case on its merits. In any case, it should be emphasized that a violation of the right to remain silent or the right to consult a lawyer in an interrogation, even in circumstances where it does not lead to the inadmissibility of the confession, is likely to detract from its weight as evidence.

37. With regard to the circumstances of the appellant’s case, there is no dispute between the parties before us that the military interrogator illegally refrained from giving notice of the right to consult a lawyer, and that in the circumstances of the case the aforesaid omission amounted to a violation of the actual right to consult a lawyer (see para. 19 supra). As I shall explain later, in the circumstances of this case a significant violation of the appellant’s right to consult a lawyer has been proved, inter alia in view of the determination of the court martial that the interrogator deliberately refrained from giving the statutory notice of the aforesaid right. Notwithstanding, for the purpose of examining the admissibility of the confession under discussion in accordance with s. 12 of the Evidence Ordinance, the question that should be addressed is whether the free choice of the appellant was impaired when he made his confession. In this matter, we must take into account that before his statement was taken, the appellant was warned that he had the right to remain silent in his interrogation, according to the wording of the warning set out in s. 267 of the Military Jurisdiction Law. The appellant was aware, therefore, of the right to remain silent when his statement was taken. It should also be noted that after the appellant consulted the military defence lawyer, he chose to respond to the questions of the interrogator when he made his second statement (prosecution exhibit 5). In the circumstances, it cannot be said that the failure to give the statutory notice of the right to consult a lawyer led to a significant violation of the appellant’s autonomy of will and freedom of choice when making his first confession, such that it requires the inadmissibility of the confession under the aforesaid s. 12 (see and cf. CrimA 5203/98 Hasson v. State of Israel [57], at p. 283, where Justice Naor held that in view of the fact that the accused in that case was warned before the interrogation of his right to remain silent and in view of the other circumstances of the case, the fact that his right to consult with a lawyer was violated did not render his confession inadmissible under s. 12 of the Evidence Ordinance).

It follows that even though in the case of the appellant it has been proved that there was an illegal violation of the right to consult a lawyer because of the failure to warn him of the aforesaid right before taking his statement, it should not be said that in the circumstances of the case there was a significant violation of the right to autonomy of will and freedom of choice within the framework of the rule of inadmissibility provided in the aforesaid s. 12. For this reason, we should not intervene in the decision of both instances of the court martial not to declare the appellant’s confession inadmissible under s. 12 of the Evidence Ordinance.

Notwithstanding, our deliberations do not end here. A separate question that should be considered is whether the failure to give the statutory notice with regard to the appellant’s right to consult a lawyer should lead to the inadmissibility of his confession on the basis of a case law doctrine that illegally obtained evidence should be inadmissible, outside the framework of the aforesaid s. 12, as argued by counsel for the appellant. Let us now turn to examine this issue.

A case law doctrine that illegally obtained evidence should be inadmissible in criminal proceedings

38. As I stated at the outset, one of the main arguments raised within the framework of the notice of appeal filed before us was that even if s. 12 of the Evidence Ordinance does not render the confession of the appellant inadmissible, it should be declared inadmissible by virtue of a case law doctrine that illegally obtained evidence is inadmissible. According to this argument, this court should adopt a judicial doctrine of inadmissibility to this effect in view of the Basic Law: Human Dignity and Liberty. It should immediately be stated that this doctrine is not restricted to the confessions of an accused, and its application is a general one, to all types of evidence in the criminal proceeding that were obtained illegally by the law enforcement authorities. Later we shall address at length the question of what is evidence that has been obtained ‘illegally.’ At this stage of the deliberation and without exhausting the issue, we will point out that we are speaking of evidence that was obtained by investigation methods that are contrary to a provision of statute, regulation or binding procedure, or by means of an illegal violation of a protected basic right.

The argument concerning the need to adopt a case law doctrine of inadmissibility raises several complex questions that should be addressed. The order of addressing these questions will be as follows: first we will discuss the legal position with regard to the admissibility of illegally obtained evidence before the Basic Laws were enacted. Against this background, we will turn to examine the question whether in the new normative reality that was created by the enactment of the Basic Law: Human Dignity and Liberty, there is a basis for adopting a case law doctrine that evidence should be inadmissible because of the way in which it was obtained. For the reasons that will be set out below, our answer to this question is yes. In view of this, we will turn to examine the nature, scope and framework of this doctrine, and to determine the proper criteria for declaring evidence inadmissible thereunder. We will end our deliberations by applying the conditions of this doctrine to the circumstances of the appellant’s case.

The admissibility of illegally obtained evidence before the Basic Laws

39. The starting point for our discussion of the question of the admissibility of illegally obtained evidence lies in the fact that the Israeli legislature has refrained from making any general and express legislative arrangement on this issue. Notwithstanding, in three special provisions of law the legislature has provided concrete rules of inadmissibility with regard to evidence that was obtained in an improper manner: the first is s. 12 of the Evidence Ordinance that we have discussed extensively above. The second is s. 13 of the Eavesdropping Law, 5739-1979. Originally this provision of statute provided an absolute rule of inadmissibility for statements that were recorded by means of eavesdropping carried out contrary to the provisions of the law. In 1995 s. 13 was amended in a manner that gave the court discretion not to declare such evidence inadmissible, on the conditions and in the circumstances set out in the section. Section 13(a) in its amended wording provides as follows:

‘Evidence        13. (a) Statements recorded by means of an eavesdropping contrary to the provisions of this law… shall not be admissible as evidence in court, except in one of the two following cases:

                (1) In a criminal proceeding concerning an offence under this law;

                (2) In a criminal proceeding concerning a serious felony, if the court declared it admissible after it was persuaded, for special reasons of which it shall give details, that in the circumstances of the case the need to discover the truth outweighs the need to protect privacy. An eavesdropping made illegally by someone who is entitled to receive a permit for eavesdropping shall not be admissible as evidence under this paragraph unless it was made by mistake in good faith, in an apparent use of lawful permission.’

A third statutory rule of inadmissibility is provided in s. 32 of the Protection of Privacy Law, 5741-1981, according to which: ‘Material obtained by means of a violation of privacy shall be inadmissible as evidence in court, without the consent of the injured party, unless the court permits the use of the material, for reasons that shall be recorded, or if the person who committed the violation, who is a party to the proceeding, has a defence or exemption under this law.’ The aforesaid s. 32 therefore provides that, as a rule, evidence that was obtained by means of an illegal violation of privacy shall be inadmissible. Notwithstanding, the rule of inadmissibility is a relative one in the sense that it allows such evidence to be admitted, if the injured party gave his consent thereto, if the court, at its discretion, allowed the evidence to be admitted for reasons that shall be recorded, or when the person who committed the violation has a defence or exemption under the law.

Case law has accepted the opinion that the rules of inadmissibility enshrined in the aforesaid provisions of statute are rare exceptions in our legal system. In the words of Justice Elon: ‘… these provisions are exceptions that are incapable of changing the rule…’ (Muadi v. State of Israel [36], at p. 262; see also CrimA 480/85 Kurtam v. State of Israel [58], at p. 691, per Justice Bach; HCJ 3815/90 Gilat v. Minister of Police [59], at p. 420, per Justice S. Levin; and CrimA 1302/92 State of Israel v. Nahmias [60], at p. 321, per Justice Bach, and at p. 341, per Justice Mazza).

The outlook that was accepted in the case law of this court before the Basic Laws was that as long as statute does not provide otherwise, relevant evidence should not be declared inadmissible because of the illegality of the means used to obtain it. The case law in this regard was summarized by Justice Elon in the following terms: ‘In the Israeli legal system, it is accepted and undisputed case law that evidence that is valid and credible in itself but that was obtained by improper and illegal methods, is admissible…’ (Muadi v. State of Israel [36], at p. 262; for similar remarks, see also CrimA 476/79 Boulos v. State of Israel [61], at pp. 801-802; per Justice Shamgar; CrimA 16/82 Malka v. State of Israel [62], at pp. 317-320. per Justice M. Bejski; FH 9/83 Appeals Court Martial v. Vaknin [63], at p. 855, per Vice-President Elon). According to this approach, illegality is a consideration with regard to determining the weight of the evidence, and in exceptional cases it may reduce its weight to nil; but it is incapable of affecting the admissibility of the evidence.

The aforesaid case law rule of this court was consistent in the main with the traditional approach adopted by English common law, according to which illegality in obtaining evidence does not make the evidence inadmissible but merely affects its weight. Admittedly, in the 1950s English law adopted a case law rule that authorized the courts to declare evidence inadmissible at their discretion, in circumstances where admitting it would be unfair to the accused (see Kuruma v. R. [110], at p. 204). But the aforesaid ruling was almost never applied in English case law, and the discretion to declare evidence inadmissible within this framework was exercised in rare and exceptional cases only (see in this regard C. Tapper, Cross and Tapper on Evidence (ninth edition, 1999), at p. 498; see also Boulos v. State of Israel [61], at pp. 800-802, per President Shamgar; Vaknin v. Appeals Court Martial [5], at pp. 401-402, per Justice Bach; and Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ supra, at pp. 988-990).

40. The case law rule whereby the manner of obtaining the evidence does not affect its admissibility is based mainly on two reasons. First, our case law is governed by the outlook that the main purpose of the rules of evidence in criminal proceedings is to discover the factual truth in order to convict the guilty and acquit the innocent (see, for example, the remarks of Justice Barak in CrimA 951/80 Kanir v. State of Israel [64], at pp. 516-517; the remarks of Justice Or in State of Israel v. Mesika [25], at p. 681). It should be emphasized that discovering the factual truth was not always regarded as the sole or absolute purpose of the rules of evidence in criminal proceedings, since there exist competing interests and values that we shall discuss later. Nonetheless, according to the approach that was accepted by us before the enactment of the Basic Laws, the weight of the purpose concerning the discovery of the factual truth was considerable, such that any departure from it in order to protect competing values and interests was regarded as an exception, which some authorities thought required express legislation (see the remarks of Justice Elon in Muadi v. State of Israel [36], at pp. 259-262). Consequently, the approach adopted in case law was that, as a rule, information that was relevant to determining innocence or guilt should not be withheld from the court, and therefore the manner of obtaining evidence does not affect its admissibility, but only its weight.

Second, until the 1980s our rules of evidence were characterized by formal rules of admissibility that were intended to safeguard the credibility of the content of evidence presented to the court. The hearsay evidence rule was one of the main rules of inadmissibility in this context, and it was originally introduced into our legal system from English common law. From the 1980s onward, a new trend began to develop in our legal system, in parallel to changes that also took place in the Anglo-American legal systems, systems whose tradition is similar to ours. The essence of this trend was a reduction in the formal exceptions to the admissibility of evidence, in order to give the court the power to determine their credibility and weight. According to this approach, the curtailing of the rules of admissibility was needed in order to discover the truth and do justice, since it could allow the flow of relevant information to the court that would consider the credibility of the information in the circumstances of each case on its merits. The aforesaid trend was given expression in legislation with the enactment of s. 10A of the Evidence Ordinance, which provides a statutory exception to the rule against hearsay evidence; it was also expressed in case law that restricted, by means of interpretation, the scope of the various rules of inadmissibility in our legal system. This was discussed by President Shamgar, who said that:

‘The trend that is expressed in the development of law as reflected in Israeli statute and case law, like that in other countries where the Anglo-American outlook prevails, is to restrict the exceptions to the admissibility of evidence in order to give the court the power to decide the weight of the evidence. In other words, instead of a barrier of inadmissibility, whose scope is gradually being reduced, the Anglo-American legal world has developed an approach that prefers an objective examination of every relevant piece of evidence by the court. Formalistic exceptions are replaced by an examination of trustworthiness. In this way the Anglo-American and continental legal systems have drawn closer together’ (CrimFH 4390/91 State of Israel v. Haj Yihya [65], at p. 671).

This approach has particular strength in the Israeli legal system, which is based on professional verdicts rather than decisions made by juries. Instead of admissibility barriers, preference has therefore been given to an approach that favours a substantive examination of every relevant piece of evidence by the court. This approach is consistent with the trend in all branches of our legal system and it reflects a transition from strict formal rules to giving weight to basic principles in the law, by exercising judicial discretion. This trend has been described in case law and professional literature as a changeover ‘from formalism and strict rules to flexibility and judicial discretion’ (see the remarks of Justice Cheshin in CrimA 6147/92 State of Israel v. Cohen [66], at p. 80; and see also FH 23/85 State of Israel v. Tubul [67], at pp. 331-340, per President Shamgar, and at p. 354, per Justice Barak; the remarks of Justice Kedmi in CA 703/86 Bernstein v. Attorney-General [68], at pp. 532-533; the remarks of Justice Or in State of Israel v. Mesika [25], at pp. 680-681 and the references cited there; my remarks in CA 2515/94 Levy v. Haifa Municipality [69], at pp. 730-733; the remarks of Justice Strasberg-Cohen in HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [70], at pp. 760-761). The trend of abandoning rules of admissibility in favour of a substantive assessment of evidence also in some degree affected the fact that this court adopted its fundamental position that the way in which evidence is obtained is unrelated to the question of its admissibility.

41. In addition, we should point out than the central status of the value of discovering the truth and the trend of abandoning rules of admissibility in favour of an examination of the evidence according to its nature and weight have also had an effect on the interpretive trend for the rules of inadmissibility provided in statute. With regard to the interpretation of s. 12 of the Evidence Ordinance, before the Basic Laws this court gave significant interpretive weight to the purpose concerning the safeguarding of the credibility of defendants’ confessions as a part of its outlook that discovering the truth is a central value in our legal system (see para. 30 supra). With regard to the Eavesdropping Law and the Protection of Privacy Law, the interpretation given to the provisions of the laws that introduced rules of inadmissibility limited the scope of these rules in a way that was consistent with the trend of restricting admissibility barriers for evidence in our legal system (see, for example, Appeals Court Martial v. Vaknin [63], and Kurtam v. State of Israel [58], with regard to the interpretation of the expression ‘other harassment’ in s. 2 of the Protection of Privacy Law; see also: Gilat v. Minister of Police [59], with regard to the interpretation of the provisions of the Eavesdropping Law).

42. In summary, the Israeli legislature refrained from providing a complete and express arrangement with regard to the question of the admissibility of illegally obtained evidence. Before the Basic Laws, the position that was adopted in case law was that in general, as long as there was no contrary provision in statute, illegality in the obtaining of a relevant piece of evidence did not affect the question of its admissibility but only its weight. This position was based on the legal tradition that we inherited from English common law, and also on reasons of reducing admissibility barriers in our legal system and giving significant weight to the purpose of discovering the truth in criminal proceedings.

In summary of this part of my opinion, it should be noted that the interpretive position of this court, before the Basic Laws, with regard to the admissibility of evidence that was obtained illegally was based on reasons of judicial policy and not on reasons of jurisdiction. There are a considerable number of judgments in which the court warned that if the illegality in obtaining evidence continued, them ‘… it is possible that we ought to consider a change in case law and decide that an illegally obtained confession should be inadmissible…’ (per Justice Etzioni in Zohar v. State of Israel [40], at p. 329). Justice Barak also addressed this matter in CrimA 260/78 Saliman v. Attorney-General [71], when he said that:

‘We are aware of the many difficulties facing the police in their war against crime, but every care must be taken that in this war the police do not cross the line, with the result that those who are acting in the name of the law are breaking it. It should be emphasized that the system practised in Israel is not the only possible system that can be adopted, and we have the power to change it’ (ibid. [71], at p. 207; emphasis supplied; see also in this context the remarks of Justice H.H. Cohn in Abu-Madijem v. State of Israel [35], at pp. 381-383).

These remarks are capable of showing that this court has always regarded itself as having the power to determine that illegality in obtaining evidence may make it inadmissible; notwithstanding, in view of the reasons that we elucidated above, the court chose to refrain from making such a ruling, and in appropriate cases it thought it sufficient to reduce the weight of the evidence to nil as a result of the illegality that was involved in obtaining it (see, for example, CrimA 559/77 Meiri v. State of Israel [72], where the court attributed negligible weight to the results of a photograph identity parade that was conducted in the absence of defence counsel).

We should also point out that in a series of judgments it has been held that in our legal system we should not adopt the rules of inadmissibility of evidence practised in the American legal system, known as ‘the doctrine of the fruit of the poisonous tree’ (see, for example, Abu-Midjem v. State of Israel [37], at pp. 537-538, per President Landau; Boulos v. State of Israel [61], at p. 801, per President Shamgar; Muadi v. State of Israel [36], at pp. 261-262, per Justice Elon; Appeals Court Martial v. Vaknin [63], at p. 852, per President Shamgar; CrimA 2286/91 State of Israel v. Eiloz [73], at p. 304, per President Shamgar; see also Smirk v. State of Israel [18], at p. 555). Later in our deliberations we will address the aforesaid American doctrine. But at this stage of our deliberations I see fit to point out that even though this court rejected in its case law the American rules of inadmissibility which are regarded in our legal system as a departure from the proper balance between the relevant interests and rights in the criminal proceeding, our case law has not ruled out the possibility of adopting other doctrines that render evidence that was obtained illegally inadmissible, which are of a different nature or have a different scope or framework from those of the American doctrine.

The conflicting interests in the issue of the admissibility of illegally obtained evidence, and the effect of the Basic Law on determining the proper point of balance between them

43. We must decide the question whether in view of the Basic Law: Human Dignity and Liberty, a change is required in the fundamental case law rule that the manner of obtaining a piece of evidence does not affect its admissibility. This issue is a part of a wider question that concerns the interpretive effect of the Basic Law: Human Dignity and Liberty on the rules of evidence that apply in criminal proceedings.

There is no dispute that the main purpose of the criminal proceeding is to determine innocence or guilt. In the words of Justice Barak: ‘The criminal proceeding is a harmonized and balanced set of norms that is intended to give effect to the substantive criminal law. The purpose of the criminal proceeding is to bring about the acquittal of the innocent and the conviction of the guilty’ (CrimA 639/79 Aflalo v. State of Israel [74], at p. 575; see also Barki Feta Humphries (Israel) Ltd v. State of Israel [47], at p. 784, per President Barak). This purpose does not constitute a special interest of the individual who is facing trial but an interest of society as a whole. An erroneous acquittal, and certainly a false conviction, harm both the doing of justice and the appearance that justice is being done, and it may undermine public confidence in the ability of the judicial authority to do justice to the individual and to society.

44. Discovering the factual truth is a main method of doing substantive justice in criminal cases. Discovering the truth assists the court in determining innocence or guilt, and it thereby contributes to realizing the goals of the criminal proceeding, namely the fight against crime, protecting public safety and protecting the rights of actual or potential victims of crime. The need to further these values became stronger as a result of the increase in the level of crime and the degree of sophistication of the methods used by criminals in order to carry out criminal acts and hide them from the law enforcement authorities. In view of all this, discovery of the factual truth has always been the dominant purpose of the rules of evidence in the criminal proceeding (see and cf. A. Barak, ‘On Law, the Administration of Justice and Truth,’ 27 Hebrew Univ. L. Rev. (Mishpatim) (1996) 11).

Notwithstanding, discovery of the truth was never the absolute or sole purpose of the rules of evidence, since there exist competing interests and values that are also worthy of protection. Therefore the rules of evidence recognize the importance of the value of discovering the truth, but also the relative nature of this value. In the words of the English scholar, Prof. Ashworth, ‘No system of criminal justice values truth above all other considerations’ (A.J. Ashworth, ‘Excluding Evidence as Protecting Rights’ [1977] Crim. L. Rev. 723, at pp. 732-733). Admittedly, the values and interests that affect the formulation of our rules of evidence are varied. Without purporting to exhaust them, we can mention that some of the rules of evidence practised in our legal system are based on reasons of legal policy, such as the rules of privilege whose purpose is to protect moral or professional undertakings or essential public interests, such as state security or public safety. There are rules of evidence that are based on grounds of convenience, speed and efficiency in legal procedure, such as presumptions in evidence. Many characteristics of our rules of evidence are founded on our legal tradition and the adversarial legal system practised in Israel, in which the task of bringing evidence is usually the duty of the litigants.

All of the values and interests that affect the formulation of our rules of evidence require a balancing act that is likely to lead to the creation of a disparity between reality as it is determined by the court (‘legal truth’) and reality as it truly is (‘factual truth’). The aforesaid disparity was addressed by Vice-President Elon in the following terms:

‘The legal system tries to adapt its principles, in so far as possible, to the truth of reality and the judicial authority implements its methods of investigation in order to reach, in so far as possible, the factual truth… but the factual truth is not always necessary the same as legal truth. These two truths are relative and not always identical, and, what is more, they are also not opposed to one another. For the legal system knows, and the judge is aware, that the point of origin, the methods of clarification, the nature of the norms and the rules of decision in the legal world and the work of administering justice are different from those in the research of historical fact, and from this they know and are aware that there are cases where different conclusions and “truths” are obtained by each of them’ (CA 1354/92 Attorney-General v. A [75], at pp. 744-745, and the references cited there; see also CA 61/84 Biazi v. Levy [76], at para. 1, per Justice Elon).

45. The values that affect the formulation of the rules of evidence also include protected human rights. The protection of human rights constitutes a purpose in itself in our legal system, and it affects the shaping of all branches of law, each according to its nature, purposes and characteristics. The rules of evidence in criminal proceedings are not an exception in this regard. Even before the Basic Laws, the rules of evidence in criminal proceedings were shaped by the purpose of protecting the rights of the accused.

The purpose of protecting the rights of the accused and the purpose of discovering the factual truth both serve the supreme purpose of the law that concerns the doing of justice and preventing miscarriages of justice in their broadest sense. Often the purpose of properly ascertaining the facts and discovering the truth is consistent with the purpose of protecting the rights of the accused. Thus, for example, the rule of evidence that the prosecution must prove guilt in criminal cases beyond all reasonable doubt and the rules that require, in certain circumstances, additional evidence in order to obtain a conviction in criminal cases serve both the purpose of discovering the truth and the protection of the right of the accused to dignity and liberty. In these contexts, the two aforesaid purposes supplement one another.

Notwithstanding the aforesaid, there are cases where the purpose of protecting the rights of the accused is directly in conflict with the purpose of discovering the truth. The clearest examples of this are the rules that prevent the court from admitting evidence that can indicate guilt, in order to protect the rights of the accused. In this context, we should point out that rules that make evidence inadmissible may be based on one of several possible reasons. There are rules of inadmissibility whose purpose is to prevent information being brought before the court because there is a concern with regard to its reliability. An example of this is the rule that hearsay evidence is inadmissible or the rule that the results of a lie-detector test are inadmissible for the purpose of a conviction in criminal cases. The purpose of these rules of inadmissibility is closely associated with the purpose of discovering the truth. On the other hand, it is possible to point to rules of inadmissibility that are based on reasons that are unassociated with the discovery of the truth but are based on competing social values and interests. In these cases, it is necessary to find the proper balance between the conflicting purposes in accordance with the relative weight of the different values underlying them (see N. Zaltzman, ‘ “Factual Truth” and “Legal Truth” — Withholding Information from the Court to Protect Social Values,’ 24 Tel-Aviv University Law Review (Iyyunei Mishpat) (2001) 263, at pp. 264-265).

As we have said, the question of the admissibility of illegally obtained evidence creates a need to find a proper balance. The dilemma that arises in this context is to choose between all of the rights and interests that concern the public, in its widest sense. On the one hand, the interests of law enforcement, fighting crime and protecting public safety support the view that the admissibility of evidence should not be considered in accordance with the way it was obtained. Thereby, all of the relevant information will be presented to the court, which will be able to clarify the factual truth. The protection of the rights of the victims of the offence also supports a position where all the relevant evidence is brought before the court in order to ascertain the innocence or guilt of the accused. In view of all of the aforesaid interests, it may be argued that acquitting the accused merely because the investigation authorities obtained the evidence against him by improper methods amounts to a ‘windfall’ for the offender that he does not deserve. It may also be argued that such an acquittal comes at a high social price and it may lead to the undermining of public confidence in the criminal process, especially in circumstances where the defect that occurred in the investigation proceedings was technical and negligible. According to this approach, the criminal proceeding should focus on the question whether the charge attributed to the accused has been proved or not. Dealing with investigators who acted illegally in the manner that they obtained the evidence ought to be done in other ways — disciplinary, criminal or civil — and not by declaring illegally obtained evidence to be inadmissible.

On the other hand, no one disputes that the law enforcement authorities should act lawfully in carrying out their duties, while upholding the rights of persons under interrogation and the accused. Moreover, no one disputes that the end of law enforcement does not justify the means of obtaining incriminating evidence. ‘A freedom-seeking democracy is not prepared to allow investigators to use every method in order to disclose the truth’ (per President Barak in Public Committee Against Torture v. Government of Israel [26], at p. 835 {590}). In the words of Justice D. Levin: ‘The authority must not violate the rights to which the accused is entitled in order to bring about his conviction at any price, since the integrity of the judicial process is a essential precondition for the existence of a proper legal system’ (CrimA 2910/94 Yefet v. State of Israel [77], at p. 368). Admitting evidence that was obtained illegally by the law enforcement authorities may in certain cases harm crucial values in our legal system, including the administration of justice, safeguarding the fairness and integrity of the criminal proceeding and protecting the dignity and liberty of the accused. According to a broad conception of the work of dispensing justice, it is not restricted to discovering the truth and a correct application of the law to the facts of a specific case; the administration of justice is also based on the way in which the court reaches its decision in the circumstances of the case before it. Basing a conviction on evidence that was obtained in an illegal manner or by means of a substantial violation of a protected human right allows the investigation authorities to enjoy the fruits of their misdeed and it may create an incentive for improper acts of interrogation in the future. Admitting such evidence may be seen as the court giving approval to the aforesaid illegality and being an accessory, albeit after the event, to the improper conduct of the investigation authorities. Consequently, in certain circumstances admitting the evidence in court may prejudice the fairness and integrity of the judicial process. It is also likely to harm public confidence in the judicial system whose role is to protect the rights of the individual against illegal executive acts. It has been said in our case law, in another context, that: ‘The result of the proceeding is not a judicial decision suspended in mid-air. It also involves a decision with regard to the proper method of conducting the proceeding and protecting the rights of the litigants before the court… a serious procedural defect is to a large extent a serious substantive defect’ (per President Barak in Kuzali v. State of Israel [4], at p. 564). Therefore, the administration of justice in its broad sense and maintaining public confidence in the judicial system, protecting the rights of the accused and the fairness and integrity of the criminal proceeding, and the common interest of both the public and the individual in invalidating illegal investigation methods and deterring the investigative authority from employing similar methods in the future — all of these support the conclusion that, in appropriate circumstances, a significant breach of the law in obtaining the evidence will lead to it being inadmissible, even if there is no concern with regard to the truth of its content.

46. Striking a proper balance between all of the conflicting values involved in the question of the admissibility of illegally obtained evidence is not a simple task. As I shall explain below, before the Basic Laws case law balanced the competing interests by holding that in general, as long as statute did not provide otherwise, the manner of obtaining the evidence did not affect the admissibility of the evidence but only its weight. This gave decisive preference to the value of discovering the truth and the related interest of protecting the public.

The status given to basic human rights since the Basic Laws were enacted in 1992 has given greater weight to the duty to take protected human rights into account, and in appropriate circumstances the weight that should be attributed to them has also grown in comparison to competing values and interests. This is definitely the case in the field of criminal law that directly concerns the right of a person, whether he is accused of an offence or a victim of one, to dignity, liberty and the protection of his person and property. The remarks of President Barak in CrimApp 537/95 Ganimat v. State of Israel [45] in this regard are illuminating:

‘The innovation made by the enactment of the Basic Laws is not… the mere recognition of human rights and the need to maintain a balance between them and the needs of the public as a whole. The innovation made by the Basic Laws lies in the elevation of the normative level of human rights to a constitutional super-legislative status and in determining the elements of the proper balance… It follows that the innovation in the Basic Laws is not the mere existence of a balance. The innovation is in the location of the balancing point. Elevating the status of human rights on the one hand, and reducing the scope of the considerations that may violate them on the other, inherently create a new reciprocal relationship and new balancing points between human rights and violations thereof’ (ibid. [45], at p. 414; emphases supplied).

The spirit of the Basic Laws that affects the interpretive approach with regard to the proper balance between the various purposes of the rules of evidence in criminal cases also has a bearing on the question of the admissibility of illegally obtained evidence. It has already been said in our case law that ‘the Basic Law: Human Dignity and Liberty creates… a new margin for a fair trial within the existing system…’ (per Justice D. Levin in Yefet v. State of Israel [77], at p. 368). Within the framework of this new margin, there is a basis for the claim that in the enforcement of criminal law there are circumstances in which admitting evidence that was obtained by improper methods may undermine the fairness of the proceeding vis-à-vis the accused and the administration of justice in its broad meaning (see and cf. B. Okon and O. Shaham, ‘Due Process and a Judicial Stay of Proceedings,’ 3 HaMishpat (1996) 265, at p. 279). The question of the admissibility of illegally obtained evidence cannot be decided in accordance with the purpose of discovering the truth and fighting crime only. Even though this purpose is the main purpose of the criminal proceeding, today we need a more flexible balancing point that also takes into account the protected rights of the accused and the need to protect the fairness and integrity of the process. Adopting a flexible balancing point for this issue will befit the new normative reality that was created when the Basic Law was enacted, and it will give expression to our commitment to protect the rights of the individual against a violation thereof by the executive authorities. Admittedly, withholding relevant information from the court may lead in these circumstances to a distancing of the ‘legal truth’ from the ‘factual truth.’ But this result is a consequence of the fact that the administration of justice process does not stand alone but is a part of a complex social system of values, interests and rights that need to be balanced (see Zaltzman, ‘ “Factual Truth” and “Legal Truth” — Withholding Information from the Court to Protect Social Values,’ supra, at p. 273).

Against this there will be those who argue that one can point to other legal measures — disciplinary, criminal or civil — in order to address any illegality that is involved in obtaining evidence by the law enforcement authorities. According to that argument, in view of the existence of alternative legal measures, there is no basis for declaring evidence inadmissible on account of the manner of obtaining it, thereby departing from the main value of discovering the factual truth. The response to this argument lies in the fact that the alternative measures are intended to provide relief for the violation that has already been inflicted on the rights of the accused when the evidence was obtained. But those measures do not prevent a disproportionate violation of the fairness and integrity of the criminal process when illegally obtained evidence is admitted in a trial. We will return to this at greater length below.

47. The conclusion that follows from our deliberations hitherto is that in the spirit of the Basic Laws we need to reconsider the question of the admissibility of illegally obtained evidence and adapt it to the new normative reality that created. A more flexible balancing point is required, which, in addition to seeking to realize the purpose of discovering the truth and fighting crime, will give weight to the protection of the accused’s rights as a factor in safeguarding the fairness of the criminal process and as a part of doing justice in the broad sense.

It should be emphasized that this approach does not include a determination that the protection of the rights of the accused has become the main purpose of the rules of evidence or that the purpose of discovering the truth has become less important. The latter purpose remains, as it was, the chief purpose of the rules of evidence in criminal law, for ascertaining innocence or guilt and for protecting public safety against ever increasing crime that has become more sophisticated and organized than in the past. Moreover, as we said above, the criminal proceeding does not focus only on the protection of the rights of suspects and defendants, but also on the protection of human dignity and the rights of the actual and potential victims of the offence. It has already been held in our case law that —

‘The Basic Law: Human Dignity and Liberty brings with it a written constitutional message for every individual in society, but this message is intended for all of society and not merely for the offenders in it. The actual and potential victim of the offence and every innocent citizen are entitled to protection of their dignity and liberty from fear, terror and injury, no less than the accused…’ (per President Shamgar in CrimFH Ganimat v. State of Israel [46], at p. 621; see also the remarks of President Barak, ibid., at pp. 651-652; see also s. 1 of the Rights of Victims of Crime, 5761-2001, which gives statutory expression to the purpose of protecting the human dignity of victims of offences).

Therefore, a more flexible balancing point between all of the competing values relevant to the question of the admissibility of illegally obtained evidence does not mean a blanket exclusion of every piece of evidence obtained in that manner. Moreover, even the Basic Laws did not give an absolute status to the human rights protected by them. The existence of a limitations clause that provides the balancing formula for a violation of constitutional rights shows that the rights protected in the Basic Law are relative and that there are cases where they must give way to competing values and interests. In this spirit, it should be determined that only in appropriate cases, which we shall address later, should the balance between the competing values lead to the exclusion of illegally obtained evidence. I have already said on another occasion that:

‘There is a question whether the right to consult a lawyer as complementary to the right to remain silent has acquired a constitutional status as a result of the Basic Law: Human Dignity and Liberty; an associated question is whether we should today adopt a rule that a confession that was obtained as a result of a breach of the aforesaid rights is inadmissible, and what should be the nature of that rule… these questions are not simple. Their complexity derives, inter alia, from the fact that the aforesaid rights, whether they have acquired a constitutional status or not, are not absolute; the right of the suspect and accused to remain silent, the right to consult a lawyer and the right to a fair trial are countered by important public interests, such as the fight against crime, the protection of state security and public safety, discovering the truth, and even the need to protect the rights of the victim of the offence who was harmed as a result of the criminal act. Therefore, a delicate and complex act of balancing is required between the variety of competing rights, values and interests, in accordance with the values of our legal system and in accordance with the framework of the limitations clause’ (Smirk v. State of Israel [18], at para. 14; emphasis supplied; see also in this regard: Hasson v. State of Israel [57], at p. 283, per Justice Naor; with regard to the need to find a proper balance between the protection of the rights of the suspect and the accused, on the one hand, and the public interest in the elimination of crime and the protection of the victims of crime, on the other, see also the remarks of Justice Strasberg-Cohen, in Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [70], at pp. 755-756).

As we shall explain at length below, the balance between the rights of the accused and the fairness of the criminal process, on the one hand, and the competing values including the value of discovering the truth, the fight against crime and the protection of public safety and the rights of the victims of crime, on the other, leads to the adoption of a doctrine of relative inadmissibility. This will give the court discretion to decide the question of the admissibility of illegally obtained evidence according to the circumstances of each case on its merits and according to criteria that we will discuss below.

48. Adopting such a rule of inadmissibility may prima facie lead to the undermining, to some extent, of the trend that has been seen in our legal system since the 1980s, which mainly involved a transition from rules of inadmissibility to a substantive evaluation of evidence. Notwithstanding, we are speaking of a development that is rooted in the normative infrastructure introduced by the Basic Law to strengthen the trend of having consideration for human rights. We are not speaking of a step that returns our case law back to the period of admissibility barriers that we knew in the past, but of an additional development that is based on the dynamic processes that have been taking place in recent decades. Whereas in the past the strict admissibility barriers were intended to withhold from the court ab initio any evidence whose credibility was in doubt, over the years a trend has developed of restricting the formal rules of admissibility and giving preference to a substantial examination of evidence according to its weight and credibility. As we said above, this recent trend was based, inter alia, on the outlook according to which, as a rule, bringing the relevant information before the court will allow it to form an independent impression of its credibility and probative value, and aid it in realizing the purpose of discovering the truth. This trend was enshrined in the approach that the discovery of the factual truth constitutes a central value in doing justice, and that we ought to aspire to as much consistency as possible between reality as determined by the court and reality as it truly is (see Barak, ‘On Law, the Administration of Justice and Truth,’ supra, at p. 13). The aforesaid aspiration remains unchanged, but in view of the normative reality that was created as a result of the Basic Laws, an additional development is now required in the direction of adopting a doctrine that allows evidence to be declared inadmissible; but this time we are not speaking of formal and strict rules of inadmissibility, of the kind that were practised in the past; according to our approach, the new doctrine of inadmissibility that we must introduce is flexible and based on the need to balance the value of discovering the truth against conflicting values that mainly concern the protection of the rights of the accused and protecting the fairness and integrity of the criminal process. A similar trend has been seen in other common law countries, including England, Canada and Australia. As we shall explain below, formal barriers of admissibility have also been restricted in these countries, and at the same time doctrines have been introduced that allow illegally obtained evidence to be declared inadmissible at the discretion of the court.

49. The current development in our legal system, which leads to the adoption of a doctrine that illegally obtained evidence is inadmissible, does not constitute an unforeseen revolution in the rules of evidence but is an additional step in a gradual process. Before the Basic Laws were adopted, the legislature saw fit to provide rules of inadmissibility in the Eavesdropping Law and in the Protection of Privacy Law with regard to evidence that was obtained by means of an illegal violation of the right to privacy. Moreover, over the years the court has discussed, on several occasions, the possibility that in the future the case law rule will be changed so that illegality involved in obtaining the evidence will make it inadmissible (see para. 42 supra and the references cited there). In view of all this, it is clear that even before the enactment of the Basic Laws concerning human rights, it was possible to change the case law rule according to which the manner in which evidence was obtained did not affect the question of its admissibility, although in practice this court refrained from making such a change. The enactment of the Basic Law: Human Dignity and Liberty has made it more urgent to reconsider the matter, and even provided ‘… an indication of the proper direction of the new development’ (CrimApp 537/95 Ganimat v. State of Israel [45], at p. 415, per President Barak).

Indeed, when the Basic Laws were enacted, trends could be seen in our case law that made the balancing point on the question of illegally obtained evidence more flexible, so that after the Basic Law: Human Dignity and Liberty was passed, there was a change in the interpretive approach of this court with regard to the rule of inadmissibility in s. 13 of the Eavesdropping Law. In the spirit of the Basic Law: Human Dignity and Liberty, this court saw fit to attribute greater weight than in the past to the protection of the constitutional right to privacy, even though this interpretive approach led to broadening of the scope of the rule of inadmissibility provided in the aforesaid s. 13 (see, for example, State of Israel v. Nahmias [60], at p. 331, per Justice Bach, and at pp. 352-353, per Vice-President Barak; see also in this regard the remarks of President Barak in CrimA 1668/98 Attorney-General v. President of Jerusalem District Court [2002] IsrSC 56(1) 625, at pp. 631-632). It should be noted that the aforesaid trend, which attributes greater weight than in the past to the duty to take the rights of the individual into account within the framework of the interpretation of the statutory rules of inadmissibility, is very much in accord with the interpretation that we proposed above with regard to the rule of inadmissibility provided in s. 12 of the Evidence Ordinance. It may be assumed that the aforesaid interpretive trend will also, in the future, influence the interpretation of the rule of inadmissibility provided in s. 32 of the Protection of Privacy Law, but we can leave the consideration of this matter until it is required (see, in this regard, Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ supra, at p. 1024, footnote 150; see also Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ supra, at pp. 79-83).

Moreover, in a series of cases decided after the enactment of the Basic Law, this court spoke positively of the possibility of adopting a relative doctrine of the inadmissibility that would allow illegally obtained evidence to be declared inadmissible in appropriate circumstances (see my remarks in Smirk v. State of Israel [18], at pp. 546 and 555; Hasson v. State of Israel [57], at p. 283, per Justice Naor; my remarks in CrimA 2180/02 Kassem v. State of Israel [79], at p. 654; and see the comments on these remarks in CrimA 9970/03 Deri v. State of Israel [80], at para. 6 of the opinion of President Barak; CrimApp 6689/01 Migdalani v. State of Israel [81], at pp. 176-177, per Justice Rivlin; HCJ 266/05 Pilant v. Gen. Efroni [82], at para. 3C of the opinion of Justice Rubinstein; for judgments of lower courts that support the adoption of such a doctrine of inadmissibility, see, for example, CrimC (Naz) 511/97 State of Israel v. Odeh [102]; CrimC (TA) 4598/01 State of Israel v. Ben-Shushan [103]). Support for adopting in our legal system a doctrine of inadmissibility of illegally obtained evidence has also been expressed in the academic literature of many scholars (see, in this regard, Gross, ‘The Procedural Rights of the Suspect or the Accused under the Basic Law: Human Dignity and Liberty,’ supra, at p. 180; Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra; A. Barak, ‘The Constitutionalization of the Legal System following the Basic Laws and its Ramifications on (Substantive and Procedural) Criminal Law,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 5, at pp. 23-24); E. Harnon, ‘Illegally Obtained Evidence — Has the Legal Position Changed following the Basic Law: Human Dignity and Liberty,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 139; Zaltzman, ‘ “Factual Truth” and “Legal Truth” — Withholding Information from the Court to Protect Social Values,’ supra; Y. Shahar, ‘Criminal Procedure,’ Israel Law Yearbook 1992, 3; Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ supra, at pp. 79-83).

Thus we see that the adoption of a doctrine of inadmissibility for illegally obtained evidence does not constitute a revolution that is foreign to our legal system; rather it is a desirable and expected development. There is no doubt that the Basic Law paved the way for the required change in thinking that made it possible to adopt such a doctrine. Moreover, the provisions of the Basic Law may serve as a possible basis for enshrining this doctrine normatively, which I shall explain later.

Adopting a judicial doctrine of inadmissibility

50. The Chief Military Prosecutor and the attorney-general argued in their written summations that even if there is a basis for adopting a doctrine in our legal system that makes illegally obtained evidence inadmissible, it is not the role of this court to order this by means of judicial legislation. According to them, the case law that the manner of obtaining evidence does not affect the question of its admissibility is well-established case law of many years’ standing, and therefore any change to it ought to be made only by the legislature. It should be emphasized that the prosecution does not dispute the fact that case law does not constitute a ‘law’ within the meaning of this term in the retaining of laws provision set out in s. 10 of the Basic Law. There is therefore no dispute between the parties before us that the case law with regard to the admissibility of illegally obtained evidence may be changed in the spirit of the Basic Law. The main argument of the prosecution in this context is that even though this court is competent in principle to order a change of the aforesaid case law, it ought to refrain from doing so until the legislature has stated its express position on the subject.

It is possible that the doctrine of inadmissibility of illegally obtained evidence should have been introduced by the legislature. For this reason, we even waited before giving our judgment, in the hope that the matter would be regulated in legislation of the Knesset (see para. 13 supra). But since the draft laws on this matter have not matured into legislation from the time the appeal was filed until today, there is no alternative to making a judicial decision on the question whether the case law rule that has prevailed hitherto in our legal system until now, according to which the manner of obtaining evidence does not affect the question of its admissibility, should be changed.

In this context it should be emphasized that in view of the fact that the Evidence Ordinance does not constitute a complete and exhaustive codex of law, our rules of evidence are to a large extent the result of development by this court. As such, they constitute a part of the ‘Israeli version of common law’ (see LCA 1412/94 Hadassah Medical Organization v. Gilad [83], at p. 524, per President Barak; see also the remarks of President Shamgar in State of Israel v. Tubul [67], at pp. 318-319, and his remarks in MApp 298/86 Citrin v. Tel-Aviv District Disciplinary Tribunal of Bar Association [84], at p. 354). The approach that prevailed in our legal system until now, according to which the manner of obtaining evidence did not affect the question of its admissibility is also not the creation of the legislature but the product of the case law of this court. In view of this, this court has always had the power to change it.

Admittedly, as has been stated above, even before the enactment of the Basic Laws this court assumed that it had the power to change the case law rule under discussion, but it refrained from doing so for reasons of judicial policy. In view of the effect of the Basic Laws, a reconsideration is now required of the question of the admissibility of illegally obtained evidence, in order to make the case law rule in this matter consistent with the change that has occurred in our normative reality. Indeed, a change in case law, especially when it may affect the way in which the criminal trial is conducted and the rules of evidence that apply to it, is not made as a matter of course. ‘This approach derives from the respect that we feel towards our colleagues, whose learning can be seen from legal literature, from the need to ensure security and stability and from the recognition that the reasonable expectations of members of the public, which are based on the case law of the court, should be realized’ (per Justice Barak in HCJ 547/84 HaEmek Poultry Registered Agricultural Cooperative Society v. Ramat-Yishai Local Council [85], at p. 145). Great care is therefore required before this court changes its case law on the fundamental issue of the admissibility of illegally obtained evidence. Indeed, as we shall explain below, the case law adoption of the doctrine under discussion will be carried out with moderation and care, while giving discretion to the court to examine the question of the admissibility of illegally obtained evidence in each case according to its circumstances and in accordance with criteria that we shall address below. Moreover, our judgment does not provide a solution to all of the questions involved in the adoption of such a case law doctrine, and in any event these questions will be resolved in future case law, by moving forward carefully from case to case. Certainly the legislature will be able to have its say on the subject under discussion even after we have given our judgment, and it may determine the arrangement that it thinks fit, provided that this legislative arrangement ‘befits the values of the State of Israel, is intended for a proper purpose and is not excessive’ (s. 8 of the Basic Law: Human Dignity and Liberty). So we see that the adoption of a case law doctrine that excludes illegally obtained evidence should be made with the sensitivity and care that are required by the change in the case law rule that prevailed until now.

Notwithstanding, it should be emphasized that the need to preserve legal stability and certainty does not mean that case law should remain stagnant without any ability to change and adapt itself to the needs of the changing reality. This is especially the case when the change in case law is required in order to protect human rights and in order to safeguard the fairness of the criminal process and the administration of justice in their broad sense. This court has been committed, since its founding, to the protection of human rights. It is bound by the duty to uphold the rights protected in the Basic Laws and whatever is implied by this with regard to conducting the judicial process (see s. 11 of the Basic Law: Human Dignity and Liberty). In view of all this, the fact that after the Basic Laws the legislature has not seen fit to introduce an express statutory doctrine that allows illegally obtained evidence to be declared inadmissible in appropriate cases does not exempt the court from its duty to make its case law on the aforesaid issue consistent with the spirit of the Basic Laws, in order to create ‘normative coherence’ (A. Barak, A Judge in a Democracy (2004), at p. 63). This is especially the case in view of the fact that the court is responsible for the process of discovering the truth and dispensing justice in the criminal proceeding, and in view of its duty to achieve these purposes without any disproportionate violation of the accused’s rights.

In addition, we should point out that a comparative perspective of the position in other countries with a similar legal system to our own shows that some of them have adopted judicial doctrines according to which illegally obtained evidence is inadmissible. Thus, for example, in the United States the Supreme Court has developed rules that evidence obtained by means of a breach of constitutional rights is inadmissible. In England, the common law recognized, as long ago as 1955, the discretion of the court to declare evidence inadmissible if admitting it would be unfair to the accused. As I said in para. 39 above, this authority has hardly ever been used in practice, and the aforesaid doctrine was replaced in 1984 statutory inadmissibility provisions in the Police and Criminal Evidence Act, which we shall discuss later. In Australia the High Court adopted a case law doctrine that allowed illegally obtained evidence to be declared inadmissible at the discretion of the court (Bunning v. Cross [106]). Later the Uniform Evidence Acts 1995 were enacted, and these contain inadmissibility provisions that apply in the federal courts. We cannot rule out the possibility that a similar process will also occur in the future in Israel, such that the judicial recognition of a doctrine that illegally obtained evidence is inadmissible will lead to the assimilation of the aforesaid doctrine in a statute that is consistent with the provisions of the Basic Law.

51. The Chief Military Prosecutor and the attorney-general further argued in their written summations that in view of the absence of an express statutory arrangement that illegally obtained evidence is inadmissible, the existing statutory position in our legal system should be interpreted as indicating an intention on the part of the legislature to create a ‘negative arrangement’ on this issue. This argument was comprised of several secondary arguments that we will consider below.

It was argued before us that the three rules of inadmissibility set out in s. 12 of the Evidence Ordinance, s. 13 of the Eavesdropping Law and s. 32 of the Protection of Privacy Law should be interpreted as evidence of the existence of a negative legislative arrangement with regard to the adoption of a case law doctrine that illegally obtained evidence should be inadmissible; this argument cannot be accepted for several reasons. First, this court has always refrained from basing its case law on the question of the admissibility of illegally obtained evidence on this interpretation. In Vaknin v. Appeals Court Martial [5] it was expressly held that ‘from the provisions of s. 32 of the Protection of Privacy Law, which makes material that was obtained by means of a violation of privacy inadmissible as evidence in certain circumstances, nothing can be implied — either positively or negatively — with regard to the policy of the legislature with regard to the rule of inadmissibility in general’ (per Justice Barak, ibid., at p. 423; emphasis supplied). Second, from a purposive viewpoint, the aforesaid inadmissibility provisions should not be interpreted as evidence of an intention on the part of the legislature that a general doctrine that excludes illegally obtained evidence should not be adopted. Thus, for example, there is no logic in saying that eavesdropping without a lawful permit is more serious than obtaining other evidence by improper means (see, in this regard, Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ supra, at p. 1026). According to my approach, the statutory rules of inadmissibility may imply a fundamental position that is different from the one argued by the chief military prosecutor and the attorney-general, according to which in certain circumstances declaring evidence inadmissible because of illegality that was involved in obtaining it is a possible relief.

It should be stated that there is a separate question as to whether the concrete rules of inadmissibility provided in legislation create an exhaustive arrangement with regard to the admissibility of the evidence addressed therein. In other words, do the aforesaid rules prevent the application of a case law doctrine of inadmissibility of confessions of defendants and evidence obtained contrary to the provisions of the Eavesdropping Law and the Protection of Privacy Law? We shall address this question, which concerns the scope of the application of the case law doctrine, below.

52. The Chief Military Prosecutor and the attorney-general further stated before us that the Basic Law: Human Dignity and Liberty does not contain an express provision with regard to the inadmissibility of evidence that was obtained by means of an illegal breach of the rights protected within its framework. According to their argument, the silence of the Basic Law on this issue is very significant, and it indicates a negative arrangement that prevents the judicial adoption of a doctrine that illegally obtained evidence should be inadmissible.

This argument should be rejected. The Basic Laws that address human rights do not contain any provision concerning remedies or reliefs for a violation of the rights protected by them. The silence of the Basic Law on this issue should not be interpreted as a negative arrangement. It is well known that s. 1A of the Basic Law: Human Dignity and Liberty provides that the purpose of the Basic Law is ‘to protect human dignity and liberty, in order to enshrine in a Basic Law the values of the State of Israel as a Jewish and democratic state.’ Without reliefs for a breach of the rights protected within the framework of the Basic Law, the purpose of protecting these rights would be bereft of all significance. Admittedly, the role of formulating the reliefs for a breach of constitutional rights is first and foremost the duty of the Knesset. It has the proper tools for creating a comprehensive arrangement that will lead to a proper correlation between the violation of the constitutional right and the relief for it. Notwithstanding, in the absence of a statutory provision in this regard, the court is competent to formulate appropriate reliefs for a breach of the rights protected in the Basic Laws, by virtue of its positive duty to protect these rights and in accordance with the general outlook of our legal system that where there is a right, there is also a remedy (ubi ius ibi remedium) (see Barak, A Judge in a Democracy, supra, at pp. 237-238; Barak, Constitutional Interpretation, supra, at pp. 365 and 703; D. Barak-Erez, Constitutional Torts — The Pecuniary Protection of the Constitutional Right (1993), at p. 151; E. Gross, ‘Constitutional Remedies,’ 4 Mishpat uMimshal (1998) 433, at pp. 436-439).

Indeed, in several judgments this court has adopted the interpretive outlook that the aforesaid silence of the Basic Law does not constitute a negative arrangement with regard to the recognition of reliefs whose purpose is to protect the rights protected therein. Thus, for example, in CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [86], at pp. 276, 415-419. it was held that the court is competent to declare an ordinary law void if it conflicts with the Basic Law, as a part of the outlook that legislation of the Knesset should be consistent with the general constitutional framework. The court held this even though the Basic Laws that address human rights do not contain an express provision — as opposed to an implied inference — with regard to the existence of a power to declare a statute void if it is inconsistent with their provisions. We should also point out that in Daaka v. Carmel Hospital [52] this court held, by a majority, that an illegal violation of a protected constitutional right (the right of the individual to autonomy of will) may constitute an independent compensatable head of damage within the framework of the tort of negligence. It may be assumed that in the future we will be called upon to determine the question of the recognition of additional relief for the breach of constitutional rights and the question of the manner in which such reliefs should be formulated: whether they should be derived directly from the Basic Law or whether they should find their place in areas of law that are external to them (with regard to the possible methods of formulating relief for the breach of constitutional rights, see Barak, Constitutional Interpretation, supra, at pp. 780-781; see also Barak-Erez, Constitutional Torts — The Pecuniary Protection of the Constitutional Right, supra, at pp. 149 et seq.; Gross, ‘Constitutional Remedies,’ supra, at pp. 439-440). In any case, for the purpose of the matter before us it is sufficient for us to determine that the Basic Law: Human Dignity and Liberty does not contain a negative arrangement with regard to the inadmissibility of illegally obtained evidence, and that, in the spirit of the provisions of the Basic Law, the adoption of such a doctrine is now required.

53. The Chief Military Prosecutor and the attorney-general, in their written summations, also addressed the Criminal Procedure (Enforcement Powers — Arrests) Law and the Criminal Procedure (Enforcement Powers — Search of Body of Suspect), 5756-1996, which were enacted after the Basic Laws came into force. According to their argument, the absence of an express provision of statute that allows evidence that was obtained in violation of the provisions of the aforesaid laws to be declared inadmissible indicates the existence of a negative arrangement with regard to the adoption of the doctrine under discussion.

This argument should also be rejected. The two aforesaid laws were intended to bring the arrest, detention and search powers into line with what is required by the provisions of the Basic Law: Human Dignity and Liberty. These laws indicate the change in outlook introduced by the Basic Law, with a greater emphasis than in the past on the protection of the rights of persons under interrogation and under arrest vis-à-vis the needs of the investigation in the sphere of criminal procedure. The aforesaid laws do not address at all the questions of evidence that arise from exercising the powers of arrest, detention and search, and in any case they do not imply anything, either positively or negatively, with regard to the position of the legislature on the adoption of a doctrine that illegally obtained evidence should be inadmissible.

Interim summary

54. The Basic Law: Human Dignity and Liberty elevated the human rights that are protected in it to a constitutional super-legislative status. A change was therefore made to our normative reality. This change is reflected first and foremost in the possibility of judicial review of the constitutionality of laws that were enacted after the Basic Laws concerning human rights came into force. Notwithstanding, this does not exhaust the whole scope of the effect of the aforesaid Basic Laws. The Basic Laws affect the manner in which executive discretion is exercised. The spirit and principles of the Basic Laws shed light with varying degrees of intensity on all branches of law and these affect the basic concepts and basic outlooks in them. Inter alia, they affect the interpretation of legislation that preceded the Basic Laws and ‘the Israeli version of common law’ that is developed in the case law of this court.

These normative changes require a reconsideration of the question of the admissibility of illegally obtained evidence. If in the past our legal system was guided by the case law ruling that the question of the admissibility of evidence is not considered in accordance with the manner in which it was obtained, since the interpretive centre of gravity in this respect was focused on the purpose of discovering the truth and fighting crime, today a more flexible balancing point is required, which takes into account the duty to protect the rights of the accused and the fairness and integrity of the criminal process. The proper balance between all of the competing values and interests on this question leads to the adoption of a relative doctrine of inadmissibility, within the framework of which the court will have discretion to decide the admissibility of illegally obtained evidence in the circumstances of each case on its merits, and in accordance with criteria that we shall discuss below.

The adoption of a doctrine that illegally obtained evidence is inadmissible and determining the strength and scope of such a doctrine is a matter worthy of legislation. Nonetheless, as aforesaid, our rules of evidence are largely the creation of case law, and in the absence of a negative legislative arrangement on this issue, the court has the duty to adapt the case law norm that it originally determined to the changing normative reality. For the reasons that we have discussed extensively above, the necessary conclusion is that the time has come to adopt a case law doctrine that, in appropriate circumstances, allows illegally obtained evidence to be declared inadmissible in our legal system.

Models of doctrines that exclude illegally obtained evidence — a comparative perspective

55. In order to determine the nature and framework of the doctrine under discussion, we should address three main questions that are interrelated, even though for the convenience of our deliberations we shall present them as separate questions: the first question concerns the main purpose of a doctrine that renders evidence inadmissible because of the manner in which it was obtained. In the case law of this court and also in other legal systems that are closely related to our legal system, different approaches have been expressed on this question. We shall focus our perspective on the three main approaches to the issue. According to one approach, the main purpose of excluding evidence because it was obtained illegally is an educational-deterrent purpose. According to this approach, the inadmissibility of evidence that was obtained in an improper way is intended mainly to educate the investigation authorities and deter them from adopting similar methods in the future, by making it impossible for the prosecution to benefit from the fruits of the illegality that was involved in obtaining the evidence. According to this approach, alternative methods of deterring the police from using improper investigative methods have been found to be ineffective, and it is therefore necessary to declare evidence that was obtained by such methods inadmissible.

According to a second approach, the exclusion of illegally obtained evidence is mainly intended to protect the rights of defendants in their interrogation. According to this approach, the violation of the protected rights of the person under interrogation by the law enforcement authorities gives rise to a justification for the evidence that was obtained as a result of that violation not being admissible, as a part of the protection of those rights. This approach has also been called the ‘protective approach.’

According to a third approach, the main emphasis in excluding illegally obtained evidence is placed on the moral aspect of the criminal proceeding. According to this approach, a judicial decision with regard to a conviction and sentencing of a person does not merely impose on him a legal sanction — imprisonment or a fine — but also a moral sanction that is reflected in the stigma that accompanies a criminal conviction. Making use of evidence that was obtained improperly by the law enforcement authorities may, in certain circumstances, taint the criminal conviction and undermine its legitimacy. Inter alia, the court may be regarded as sanctioning the defect and being a party, after the event, to the illegality in the behaviour of the investigators. Moreover, since the police investigation stage is a part of the complete system of administering justice, the admissibility of evidence in a trial when it was obtained by means of illegal interrogation methods may undermine the integrity of the judicial process and public confidence therein. According to this approach, the inadmissibility of the evidence is intended to protect values that mainly concern the integrity and fairness of the criminal process, and it is required as a part of the work of administering justice in its broad sense, and as a prerequisite for public confidence in the judicial system. At this point we should emphasize that there is a close relationship between the three aforesaid purposes, and that the formulation of the nature and framework of a doctrine concerning the inadmissibility of illegally obtained evidence will necessarily be affected by all of the purposes that we have discussed. Notwithstanding, the question before us is what is the primary or dominant purpose that ought to serve as the basis for such a doctrine.

 The second question that affects the formulation of the doctrine under discussion concerns the theoretical model on which the inadmissibility of the evidence should be based. In this regard, two main models can be identified. According to one model, the inadmissibility of the evidence is a remedy for an illegal violation of a protected right of the accused, which took place when the evidence was obtained. As we shall clarify later on, this theoretical model is consistent with the educational-deterrent approach, and it may also be consistent with the protective approach (hereafter: ‘the remedial model’). Another possible model is that the inadmissibility of the evidence is intended to prevent a future violation of a protected value, which is separate from the original right that was violated when the evidenced was obtained. Within the framework of this model, the inadmissibility of the evidence constitutes a prospective relief and its purpose is to prevent a violation of the protected social value when the evidence is admitted in the trial. As we shall explain below, this theoretical model is consistent with the approach that regards the protection of the criminal process, its integrity and fairness as the main purpose for declaring evidence inadmissible if it was obtained illegally. This theoretical model may also be consistent with the protective approach, especially in legal systems where the protected right that lies at the heart of the doctrine of inadmissibility is the right of the accused to a fair criminal trial (hereafter: ‘the preventative model’).

The third question that affects the formulation of a doctrine that excludes illegally obtained evidence concerns the degree of flexibility and the scope of discretion that the court has within the framework thereof. In this matter there are also two main possibilities: one possibility is an absolute doctrine of inadmissibility that holds that illegally obtained evidence may not be admitted in evidence. The second possibility is a relative doctrine of inadmissibility that leaves the court with discretion to decide the question of the admissibility of the evidence in view of the circumstances of the case that is before it.

A comparative look at other legal systems that are similar to our legal system shows that the aforesaid three questions led to the development of two main models of doctrines for the exclusion of illegally obtained evidence. One model is expressed in the exclusionary rules practised in the United States. The second model is the one practised in the other common law countries, including Canada, England, South Africa and Australia. Let us therefore turn to examine closely the inadmissibility doctrines practised in these countries, in order to obtain inspiration from the arrangements adopted by them on the matter under discussion. Obviously the comparative perspective does not bind us in formulating a doctrine that is appropriate for our legal system, and reference to legal systems that are fundamentally similar to our legal system is merely intended to broaden our horizons and benefit from the experience of those countries, in so far as this experience is relevant for the purposes of the legal position in Israel.

(a) The exclusionary rules practised in the United States

56. The rules of inadmissibility or the exclusionary rules as practised in the United States are based mainly on the exclusion of evidence that was obtained in contravention of the Fourth Amendment of the Constitution, which concerns the principles of searches and seizures, the Fifth Amendment of the Constitution, which concerns the protection of the right not to incriminate oneself and the right to due process, and the Sixth Amendment of the Constitution, which concerns the right to representation by counsel. The case law of the Supreme Court of the United States has adopted the approach that the aforesaid exclusionary rules were intended mainly for an educational-deterrent purposes, so that the police do not again in the future make use of investigation methods that are capable of violating the constitutional rights of the suspect or accused (see, in this regard, J. Stribopoulos, ‘Lessons from the Pupil: A Canadian Solution to the American Exclusionary Rule Debate,’ 22 B. C. Int. & Comp. L. Rev. (1999) 77, at p. 101; R.H. Fallon and D. J. Meltzer, ‘New Law, Non-Retroactivity and Constitutional Remedies,’ 104 Harv. L. Rev. (1991) 1731, at p. 1810). The educational-deterrent purpose has had a dominant effect on the formulation of the American exclusionary rules. Inter alia, the aforesaid approach has led in the United States to the development of the ‘fruit of the poisonous tree’ theory. According to this theory, the court should declare inadmissible not only evidence that was obtained as a direct result of a violation of the constitutional right of the accused, but also any other evidence that was found directly or indirectly as a result of the information that was disclosed by that initial evidence; and this applies even when the credibility of the aforesaid items of evidence is not in doubt. This theory was mainly intended to deter investigators from making future use of improper investigation methods, by excluding all the evidence that was found as a result of the aforesaid illegality.

The theoretical model on which the exclusionary rules in the United States are based is the ‘remedial model.’ The exclusion of the evidence is a remedy for the violation of the constitutional right of the accused that took place when the evidence was obtained. The exclusion of the evidence is therefore intended to provide relief for a violation that was completed in the past, and it is not intended to prevent a future violation of a protected right or value. We should also point out that ab initio the American exclusionary rules were formulated as sweeping rules that did not leave the courts any discretion on the question of the admissibility of evidence that was obtained as a result of a violation of the Constitution. Notwithstanding, following major criticism that has been heard over the years with regard to the rigidity of the aforesaid exclusionary rules, the Supreme Court of the United States has recognized exceptions to these rules, which have relaxed, to some extent, the sweeping obligation mandated by them to exclude evidence. It should also be emphasized that the rigidity of the American exclusionary rules has had far-reaching consequences from the viewpoint of undermining the purpose of law enforcement, fighting crime and discovering the truth, and as a result of these social consequences, criticism has been levelled at these rules in the United States and elsewhere.

In concluding these remarks, we should point out that over the years there has been disagreement on the question whether the aforesaid exclusionary rules are enshrined in the United States Constitution or not. In Dickerson v. United States [105], which we discussed in para. 27 supra, the Supreme Court of the United States held, by a majority, that the exclusionary rule held in Miranda v. Arizona [104] had a constitutional basis and it could therefore not be nullified by an ordinary statute of Congress.

(b) The doctrines of inadmissibility practised in Canada, England, South Africa and Australia

57. Other common law countries, including Canada, England, Australia and South Africa, have adopted doctrines of inadmissibility that are more flexible and moderate, based on a different theoretical model from the one practised in the United States.

Section 24(2) of the Canadian Charter of Rights and Freedoms of 1982 provides as follows:

‘24. Enforcement of guaranteed rights and freedoms

(1)…

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.’

Section 24(2) of the Charter provides two conditions for the inadmissibility of evidence: first, it must be proved that the evidence was obtained in violation of a protected constitutional right under the Charter. Second, the court should exclude evidence as aforesaid if, taking into account all of the circumstances, it is proved that admitting the evidence in the court proceedings would lead to substantial harm to the administration of justice system.

Thus we see that, unlike the rigid exclusionary rules practised in the United States, under s. 24(2) of the Canadian Charter the obtaining of evidence in violation of a constitutional right does not in itself necessitate its inadmissibility; the evidence will be excluded only if admitting it in the trial will harm the process of administering justice. It should be emphasized in this context that the test enshrined in s. 24(2) of the Charter is not whether the illegal behaviour of the investigation authorities has resulted in harm to the administration of justice process, but whether admitting the evidence in a trial would create such harm. It follows that the inadmissibility is not a remedial relief for the improper conduct of the investigators when they obtained the evidence, but a relief that is intended to prevent substantial harm to the integrity and propriety of the administration of justice system if the evidence is admitted in the trial (‘the preventative model’). It should also be emphasized that s. 24(2) refrains from establishing a presumption with regard to the inadmissibility of illegally obtained evidence, and the matter is left to the discretion of the courts according to criteria that have been determined in the case law of the Supreme Court of Canada. At this stage we should point out that one of the main considerations in this context is whether admitting the evidence in the trial will prejudice the fairness of the criminal trial (see R.J. Sharpe and K.E. Swinton, The Charter of Rights and Freedoms (1998), at pp. 178-179).

Taking all of the aforesaid into account, the accepted view in case law and academic literature in Canada is that the main purpose of the doctrine of inadmissibility that is enshrined in s. 24(2) of the Charter is not to deter or educate the police, but to protect the fairness of the proceedings and to uphold the integrity and status of the administration of justice system. Deterring the investigation authorities from using illegal investigation methods in the future constitutes a desirable side-effect of excluding the evidence, but it is not one of its main purposes (see, in this regard, R. v. Collins [108], at p. 281; P.W. Hogg, Constitutional Law of Canada (student edition, 2005), at p. 911).

58. With regard to England, the doctrine practised there for the inadmissibility of illegally obtained evidence is set out in the provisions of s. 78(1) of the Police and Criminal Evidence Act 1984 (PACE), which is an ordinary statue of Parliament. Section 78(1) provides:

‘78. Exclusion of unfair evidence

(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’

The premise on which s. 78(1) of PACE is based is that all relevant evidence is admissible in a trial. Nonetheless, according to the aforesaid s. 78(1), the court is competent to refuse to allow evidence that was presented to it by the prosecution, after considering the following issues: first, the court should consider all the circumstances of the case, including the circumstances of obtaining the evidence. Second, the court needs to be persuaded that in the circumstances of the case admitting the evidence would have such a detrimental effect on the fairness of the proceedings that it should not be allowed.

Thus we see that the English legislature saw fit to adopt a relative doctrine of inadmissibility, which leaves the court discretion on the question of the inadmissibility of evidence that was obtained improperly. The main test in this regard is whether, in the circumstances of the case, admitting the evidence in the trial will seriously prejudice the fairness of the proceedings. Like s. 24(2) of the Canadian Charter, the inadmissibility of the evidence under s. 78(1) of the PACE is not intended to offer a remedial relief for the harm to the accused that was completed when the evidence was obtained, but its purpose is to prevent future harm to a protected value — the fairness of the criminal proceeding — when the evidence is admitted in the trial. Like in Canada, English case law has also determined that the main purpose of the inadmissibility of the evidence under the aforesaid s. 78(1) is not to educate the police or deter them from making use of improper investigation methods in the future, but to protect the fairness and integrity of the judicial system (see Zander, The Police and Criminal Evidence Act 1984, supra, at p. 347; R. Stone, ‘Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles,’ [1995] 3 Web J.C.L 1).

It should be noted that according to the legal position in England, the English doctrine of inadmissibility is not conditional upon the evidence being obtained by means of an illegal violation of a protected constitutional right. It is sufficient to prove that, in view of all of the circumstances of the case, including the circumstances of obtaining the evidence, admitting it in the trial would prejudice the fairness of the proceedings. A study of English case law shows that most of the cases where evidence was declared inadmissible under the aforesaid s. 17(1) concerned evidence that was obtained by the police by means of a serious violation of the provisions of the PACE or of the Codes of Practice that were issued under the aforesaid law and have the status of secondary legislation. Notwithstanding, English case law has emphasized that evidence may be inadmissible also because of the use of unfair investigation methods, and it is not necessary to prove formal illegality in obtaining the evidence.

In concluding these remarks, we should point out that the European Convention on Human Rights is silent on the question of the admissibility of illegally obtained evidence, and this matter is regulated in the internal law of the states. Notwithstanding, the European Court of Human Rights has held that a violation of a protected right under the Convention when obtaining the evidence does not necessarily result in its inadmissibility. According to the court, the circumstances of each case should be considered on the merits to determine whether admitting the evidence will make the trial as a whole unfair under s. 6 of the Convention. Thereby the European Court of Human Rights approved the position of English law on this subject (see Zander, The Police and Criminal Evidence Act 1984, supra, at pp. 347-348; Archbold, Criminal Pleading, Evidence and Practice (London, P.J. Richardson ed., 2003), at p. 1477).

59. The South African constitution of 1996 also contains an express provision with regard to the inadmissibility of illegally obtained evidence, which states:

‘35. Arrested, detained and accused persons

…

(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.’

Like the doctrine of inadmissibility practised in England and Canada, s. 35(5) of the South African Constitution also provides a relative doctrine that leaves the court discretion in excluding the evidence. The theoretical model on which the inadmissibility doctrine is based is not the giving of relief for the initial violation of the constitutional right when the evidence was obtained, but the prevention of future harm to protected values — the fairness of the proceeding and the harm to the administration of justice system — as a result of admitting the evidence (‘the preventative model’).

 Adopting a case law doctrine of inadmissibility in our legal system — guiding principles

60. How should we formulate the case law doctrine of inadmissibility in Israel? What ought to be the nature of this doctrine and what are the general principles that should guide us in determining its framework? In view of the characteristics of our legal system and the basic outlooks that prevail in it, and against the background of the interpretive inspiration that may be derived from the experience of other countries, as has been set out above, I think that it is possible to reach the following conclusions:

Of the two theoretical models that we have discussed, I believe that the appropriate model for our legal system is the ‘preventative model’ according to which the inadmissibility of evidence will be a relief whose purpose is to prevent a future violation of a protected value when the evidence is admitted in a trial, and not remedial relief for the initial harm to the accused that was completed when the evidence was obtained. The rejection of the ‘remedial model’ is based on two reasons: first, the ‘remedial model’ which is practised in the United States bases the relief of inadmissibility on the existence of a violation of a constitutional right at the time of obtaining the evidence. At the current time, our legal system does not have a complete and comprehensive constitutional bill of human rights. As I said in para. 20 supra, the question of the constitutional status of the procedural rights of persons under interrogation, suspects and defendants in criminal proceedings has also not received a clear and comprehensive response. Different approaches are possible on the question of which procedural rights that are not listed expressly in the Basic Law should be included within the framework of the constitutional right to dignity and liberty. In view of this, it would seem that the adoption of the ‘remedial model’ may raise significant difficulties in our legal system. Second, from a theoretical point of view, it is doubtful whether excluding illegally obtained evidence really gives relief for a violation to a protected right of the defendant that was completed. The illegal violation of the right to privacy and property occurs at the time of the search. Whether evidence was discovered in that search or not is immaterial from the viewpoint of the violation of the right that has already taken place. Therefore, there is a basis to the argument that excluding the evidence does not constitute remedial relief for the violation of a protected right that has been completed. Third, there are some who argue that the ‘remedial model’ leads to an improper discrimination between persons under interrogation. This is because this model offers relief for the initial violation of the constitutional right only for persons under interrogation who are indicted and against whom the evidence is presented by the prosecution in their trial (see, in this regard, Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra, at p. 170). Fourth, it is possible to point to alternative reliefs — criminal, disciplinary, tortious and possibly even constitutional — for the initial violation of a protected right of the person under interrogation at the time that the evidence was obtained. In view of the existence of alternative reliefs as aforesaid and the social price involved in the exclusion of evidence that is capable of contributing to the discovery of the truth, it is doubtful whether there is a justification for adopting the ‘remedial model.’

The vast majority of the aforesaid difficulties do not arise with regard to the ‘preventative model,’ within which framework the exclusion serves as a defensive relief that is intended to prevent a future violation of a protected value when the evidence is admitted in a trial. And indeed, apart from the American legal system, all the other common law countries that we have discussed saw fit to adopt the ‘preventative model’ and to base the inadmissibility doctrines that they practise on this model.

61. With regard to the dominant purpose that should lie at the heart of the case law doctrine of inadmissibility that we should adopt, it appears that the educational-deterrent cannot be the main purpose of this doctrine. In view of the American experience, it is questionable whether the exclusion of illegally obtained evidence does indeed constitute an effective means of educating and deterring the investigation agencies from the use of improper investigation methods (see, in this regard, LaFave and Israel, Criminal Procedure, supra, at pp. 315-316; H.M. Caldwell and C.A. Chase, ‘The Unruly Exclusionary Rule: Heeding Justice Blackmun’s Call to Examine the Rule in Light of Changing Judicial Understanding about Its Effects Outside the Courtroom,’ 78 Marq. L. Rev. (1994) 45, at p. 55). It should be noted that even in the context under discussion there are some who argue that there are alternative legal measures for educating and deterring investigators who made use of illegal investigation methods, including the filing of disciplinary, criminal or civil proceedings against the investigators who have acted improperly. Filing such proceedings constitutes a direct sanction against those investigators, and therefore there are some persons who think that this is a more effective relief for the purposes of education and as a deterrent.

Taking all of the aforesaid into account, it would appear that the educational-deterrent purpose cannot serve as a strong basis for formulating a doctrine for excluding illegally obtained evidence in our legal system. In view of the commitment of this court since its inception to the protection of human rights and the inspiration of the Basic Laws concerning human rights, it would appear that the purpose of protecting the fairness and integrity of the criminal process is the main purpose that should assist in formulating the aforesaid doctrine. The educational-deterrent purpose may be a possible and even a desirable side-effect of the exclusion of the evidence within the framework of this doctrine.

62. With regard to the degree of flexibility of the case law doctrine of inadmissibility, counsel for the appellant, as well as the Israel Bar Association and the National Public Defender’s Office, expressed support for the adoption of a relative doctrine, which leaves the court discretion to exclude illegally obtained evidence after taking into account the circumstances of each case on its merits. Indeed, there are many reasons that support the adoption of such a relative doctrine. As we explained above, the question of the admissibility of illegally obtained evidence requires us to find a proper balance between the protection of the rights of the accused and safeguarding the fairness and integrity of the criminal process, on the one hand, and competing values and interests, including the value of discovering the truth, fighting increasing crime and protecting public safety and the rights of victims of crime, on the other. It has already been said in our case law, in another context, that ‘we should… find a proper balance between the need to protect the right of the individual to dignity, liberty, privacy and a fair trial, on the one hand, and the need to protect the rights of society and its individuals against crime, on the other. We should refrain from paying too dear a price, whether from a desire to win the war against crime or a desire in another direction, to overprotect the suspect and the accused’ (per Justice Strasberg-Cohen in Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [70], at p. 761). Consequently, the aforesaid balancing should be done with proper care and with a view to all of the circumstances of the case. As we shall explain below, a serious illegal act that was carried out intentionally by the investigation authorities cannot be compared to a negligible defect in the investigation process that was done in good faith and without any real ramifications on the rights of the person under interrogation. Because of the complexity of the matter and the many factors that should be taken into account, it is not desirable to adopt a strict rule of inadmissibility, but we should leave the court with discretion on the question of the admissibility of illegally obtained evidence, so that it can take into account the circumstances of each case on its merits. For these reasons, this court has in the past already expressed the opinion that there is no basis for adopting strict rules of inadmissibility like those that are practised in the American legal system, and that the relativity of the doctrine of inadmissibility is ‘… a basic condition for doing justice’ within its framework (per Justice Mazza in State of Israel v. Nahmias [60], at p. 339).

It should be noted that giving discretion to the court as aforesaid is consistent with the general theory of checks and balances that characterizes our legal system and it is consistent with the values of the State of Israel as a Jewish and democratic state (see, in this regard, Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ supra, at p. 82). Moreover, the adoption of a relative doctrine that gives the court discretion on the question of the admissibility of illegally obtained evidence is consistent with our duty to act moderately and carefully when changing a case law rule that has existed in the matter under discussion until now (see, on this point, para. 50 supra). It is supported by the relative arrangements that were adopted in other common law countries and the lessons learned from the criticism levelled at the sweeping exclusionary rules practised in the American legal system.

The case law doctrine of inadmissibility — its nature and scope

63. In view of all of the conclusions that we have reached in our deliberations up to this point, it is possible to formulate the case law doctrine of inadmissibility that we are adopting in our legal system as follows:

The premise for the question of the admissibility of evidence is the same that has always been applied in Israel, according to which evidence that is relevant is admissible in a trial. Notwithstanding, the court has discretion to exclude evidence in criminal cases if it finds that the evidence was obtained illegally and admitting it in the trial will result in serious harm to the right of the accused to a fair criminal trial that departs from the framework of the limitations clause.

Thus we see that according to the case law doctrine, the inadmissibility of evidence in criminal cases because of the manner of obtaining it depends upon satisfying two conditions simultaneously: first, that the evidence was obtained illegally, and second, that admitting the evidence in the trial will significantly harm the right of the accused to a fair trial contrary to the conditions of the limitations clause. It should be emphasized that according to the ‘preventative model,’ which we have discussed, the inadmissibility of evidence is intended to prevent an illegal violation of the right to a fair trial as a result of admitting the evidence in the trial — a violation that is distinct and separate from the initial violation of the accused’s rights that was completed when the evidence was obtained. Let us now consider in greater detail the nature of the aforesaid conditions.

(a) Illegally obtained evidence

64. The first condition for the application of the case law doctrine of inadmissibility is that the evidence was obtained illegally by the law enforcement authorities. The question of what is ‘illegally’ obtained evidence cannot be given a precise and comprehensive answer. As a rule, it can be said that we are speaking of evidence that was obtained by means of illegal investigation methods, namely, methods that are contrary to a provision contained in statute, regulations or binding practice, methods that are unfair or methods that illegally violate a protected basic right. Naturally the question of the illegality or the unfairness of the investigation methods should be examined in accordance with the circumstances of each case on its merits. It has already been said in our case law that:

‘It is not possible to define what will be considered unfair or immoral in an investigation; it is necessary to consider this matter in accordance with the circumstances of each case. Thus, for example, a method of investigation that is permitted vis-à-vis an adult may be forbidden vis-à-vis a minor, and what an investigator may be permitted to do in a murder investigation he may not be permitted to do in the investigation of a traffic offence’ (per President Y. Kahan, in Muadi v. State of Israel [36], at pp. 250-251; with regard to the general principles for reasonable rules of investigation, see also the remarks of President Barak in HCJ 5100/94 Public Committee Against Torture v. Government of Israel [26], at pp. 834-836 {589-592}).

In any case, in order to exclude evidence under the aforesaid doctrine, a connection is required between the use of the improper investigation methods and the obtaining of the evidence. The question of the nature and strength of the aforesaid connection can be left to be resolved in the future (on the aforesaid connection in Canadian law, see Hogg, Constitutional Law of Canada, supra, at pp. 913-914).

It should be emphasized that within the framework of the case law doctrine of inadmissibility, it is not essential to prove that the evidence was obtained by means of a violation of a right that has constitutional status. As stated, contrary to the legal position in the United States, Canada and South Africa, in Israel a complete and comprehensive charter of rights has not yet been formulated, and therefore the application of the case law doctrine of inadmissibility is not restricted to evidence that was obtained specifically by means of a violation of a constitutional right. Instead, the doctrine provides a condition similar to the one practised in England and Australia, according to which the court must be persuaded that the law enforcement authorities obtained the evidence illegally, unfairly or by means of a violation of a protected human right.

(b) Admitting the evidence in a trial will significantly violate the right of the accused to a fair trial, contrary to the terms of the limitations clause

65. The focus of the second condition for the application of the case law doctrine of inadmissibility is the right of the accused to a fair criminal trial. Thereby we realize the main purpose of the doctrine under discussion, namely the protection of the rights of the accused and the fairness and integrity of the criminal trial. Thus we are following a similar path to the one chosen in England, Canada and South Africa, where the protection of the fairness of the proceedings and public confidence in the administration of justice process are the centre of gravity of the inadmissibility doctrines practised in their legal systems. In this context, it should be stated that the draft Evidence Ordinance Amendment (Inadmissibility of Evidence) Law, 5765-2005, which was tabled in the Knesset on 21 February 2005 also proposed that the inadmissibility of evidence that was obtained by ‘improper methods’ should be based on the right of the accused to a fair trial.

66. Even though the right to a fair criminal proceeding has been recognized in our legal system as a basic right from its inception, it would appear that defining the content and internal scope of the aforesaid right is not a simple task. We are speaking of a multifaceted right that is open-ended, and its title and precise content vary from one legal system to another, even in the various international conventions. Thus, for example, in the American legal system the Fifth and Fourteenth Amendments of the Constitution speak of the right to ‘due process’; in South Africa the provisions of art. 35(3) of the Constitution of 1996 address the right to a ‘fair trial’; by contrast, the provisions of s. 11(d) of the Canadian Charter, as well as the provisions of art. 10 of the Universal Declaration of Human Rights, the provisions of s. 14(1) of the International Covenant on Civil and Political Rights and the provisions of s. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms refer to the right to a ‘fair hearing.’ The internal scope of the aforesaid rights is not identical in the various legal systems and even in the different sources of internal law. It is clear, therefore, that defining the boundaries of the right to a fair criminal trial is a difficult and complex task, and it must be done while taking into account all of the principles and characteristics of the relevant legal system (see, in this regard, D. Cheney, L. Dickson, J. Fitzpatrick and S. Uglow, Criminal Justice and the Human Rights Act 1998 (1999); see also the remarks of Justice Adiel in HCJ 3992/04 Maimon-Cohen v. Minister of Foreign Affairs [87], at pp. 67-68).

Against this background, it would appear that it is possible to point to several characteristics of the right to a fair criminal trial in our legal system: first, the purpose of the aforesaid right is to ensure a fair procedure and proper procedural safeguards for the fairness of the criminal trial vis-à-vis the accused. Procedural fairness is, therefore, what lies at the heart of the aforesaid right. Second, the right to a fair criminal proceeding applies to all stages of the criminal proceeding, ‘both in the investigation stage and in the trial stage’ (per Justice Barak in Kanir v. State of Israel [64], at p. 516). Indeed, the police investigation stage is a preliminary proceeding to the trial itself, such that defects that occurred in it may have ramifications on the fairness of the criminal proceeding as a whole. This was discussed by Justice H.H. Cohn, who said that ‘… the whole of the police investigation is merely preparatory to the trial, and crimes committed in the investigation can cast a dark shadow on the trial proceedings that come in its wake’ (Abu-Madijem v. State of Israel [35], at p. 381). Third, the protection of the right to a fair criminal trial is not confined to examining the potential effect of procedural defects specifically on the outcome of the trial; this context requires a broader perspective that is based on general considerations of fairness, justice and preventing a miscarriage of justice. Finally, we should point out that the right to a fair criminal trial is a multifaceted right, which may serve as a basis for deriving many procedural rights of the person under interrogation, the suspect and the accused in criminal proceedings. Without exhausting the issue, we should point out that in foreign legal systems that are similar to our own and even in international conventions, the right to a fair criminal trial includes the right of the accused to know why he was arrested and what are the charges against him, the right to be represented by a lawyer, the right to be present at the trial, the right to an open trial by an unbiased and neutral tribunal and the right to defend himself at the trial and to present relevant evidence. The aforesaid right also includes the presumption of innocence, the principle of legality and the prohibition of placing the accused in double jeopardy of a conviction for the same act (see Cheney et al., Criminal Justice and the Human Rights Act 1998, supra, at pp. 77-78). In many countries that have a legal tradition similar to ours and in the case law of the European Court of Human Rights, it has been held that the right to a fair criminal trial also includes the right to consult a lawyer and even the right to remain silent and the right not to incriminate oneself at the interrogation stage, even though this does not prevent adverse inferences being drawn from the silence of the accused in his interrogation (see, for example, the position of English case law on this issue, which has been approved by the European Court of Human rights: Cheney et al., ibid., at pp. 86-90; see also A. Ashworth, ‘Article 6 and the Fairness of Trials,’ [1999] Crim. L. R. 261, at pp. 265-267).

67. As stated, this court has recognized the right to a fair trial as a fundamental and basic right from its inception. The draft Basic Law: Trial Rights (Draft Laws 1994, 335), proposed expressly enshrining the right to a fair trial and to due process in a Basic Law, but until now this proposal has not been adopted.

Many authorities are of the opinion that when the Basic Law: Human Dignity and Liberty was enacted, the right to a fair criminal trial obtained a constitutional super-legislative status. This position makes much sense. An illegal violation of the right to a fair trial in criminal proceedings may violate the constitutional right of the accused to liberty under s. 5 of the Basic Law. It may also harm the accused’s self-image and give him a feeling of degradation and helplessness as if he is a plaything in the hands of others, to the extent of a violation of his constitutional right to dignity under ss. 2 and 4 of the Basic Law (on the constitutional status of the right to a fair criminal trial, see the remarks of Justice Dorner in RT 3032/99 Baranes v. State of Israel [88], at p. 375; the remarks of President Barak in RT 8483/00 Deri v. State of Israel [89], at p. 263; the remarks of Justice Türkel in CrimA 1741/99 Yosef v. State of Israel [90], at p. 767; the remarks of Justice Strasberg-Cohen in HCJ 6972/96 Association for Civil Rights in Israel v. Attorney-General [91], at p. 782; see also Barak, Constitutional Interpretation, supra, at p. 422; Barak, ‘Human Dignity as a Constitutional Right,’ supra, at p. 281). In the case before us, we do not need to decide the question whether the right to a fair criminal trial and the specific rights derived therefrom have acquired a constitutional status for their whole scope. We can rely merely on the ruling that was recently confirmed in the case law of this court with an expanded panel of eleven justices, according to which ‘… in appropriate circumstances, a substantial violation of the right to a fair trial will amount to a violation of the constitutional right to human dignity (see HCJ 1661/05 Gaza Coast Local Council v. Knesset [92], at para. 173; emphasis supplied).

Accordingly, the case law doctrine of inadmissibility provides that illegally obtained evidence shall be inadmissible, if admitting it in the trial will create a substantial violation of the right to a fair trial contrary to the terms of the limitations clause. In other words, in order to exclude illegally obtained evidence, admitting it in the trial must violate the fairness of the proceedings vis-à-vis the accused in a way that is substantial, for an improper purpose and to an extent that is excessive. In such circumstances, admitting the evidence in the trial will amount to an illegal violation of the constitutional right to dignity and liberty. In order to prevent this violation, the court should declare the evidence inadmissible. Excluding the evidence in the aforesaid circumstances is required by the purpose and compliance clauses provided in the Basic Law: Human Dignity and Liberty. It is derived from the obligation of the court not to violate the aforesaid constitutional right (status negativus) and also from its duty to protect it (status positivus) (see Barak, ‘Human Dignity as a Constitutional Right,’ supra, at p. 273). In view of all of these, it appears that apart from the general interpretive spirit of the Basic Law, its provisions also serve as a basis for the normative enshrining of the case law doctrine of inadmissibility that we are adopting.

68. The restriction of the doctrine under discussion to circumstances in which admitting evidence at the trial will lead to a substantial violation of the right to a fair trial contrary to the terms of the limitations clause gives expression to the relativity of the aforesaid right. Indeed, like all the rights that are recognized in our legal system, the right to a fair criminal trial is also not absolute. The scope of the protection given to it is derived from the need to balance it against the competing values, rights and interests that we have discussed, including the values of discovering the truth, fighting crime, protecting public safety and protecting the rights of potential and actual victims of crime. Justice D. Levin rightly said in this regard: ‘The public interest in protecting the integrity of the judicial process should not make us forget other important public interests, such as the public interest in conducting trials to their conclusion, discovering the truth and the private interest of the injured victim’ (Yefet v. State of Israel [77], at p. 369). ‘The fairness of the trial, to which we aspire, is not merely fairness vis-à-vis the accused, but also vis-à-vis anyone who seeks the help of society in drawing conclusions from his degradation and humiliation as a human being’ (per President Shamgar in CrimFH 3750/94 A v. State of Israel [93], at p. 630).

The fundamental balancing formula between all of the aforesaid interests and values is the one that we have discussed, according to which illegally obtained evidence will be inadmissible only if the court discovers that admitting it in the trial will lead to a substantial violation of the right to a fair criminal proceeding, which is not for a proper purpose and to an extent that is excessive. The aforesaid balancing formula will be applied at the discretion of the court, in view of the special circumstances of the case that comes before it. Below we shall discuss the basic criteria for exercising the aforesaid judicial discretion.

Criteria for exercising judicial discretion within the framework of the case law doctrine of inadmissibility

69. In order to decide the question whether evidence should be declared inadmissible within the framework of the case law doctrine of inadmissibility, the court should consider a variety of considerations in accordance with the circumstances of the case before it. As I shall explain below, it is possible to point to three main groups of relevant considerations with regard to the question of when admitting illegally obtained evidence in a trial will inflict a substantial violation on the right of the accused to a fair trial contrary to the terms of the limitations clause. It should be emphasized that we are not speaking of a strict and exhaustive list of considerations, but merely guidelines for the court in exercising its discretion within the framework of the fundamental balancing formula on which the case law doctrine of inadmissibility is based.

(a) The character and seriousness of the illegality that was involved in obtaining the evidence

70. As I said above, the first condition for the application of the case law doctrine of inadmissibility is that the evidence was obtained illegally, i.e., in an illegal or unfair manner or by means of a violation of a protected right of the person under investigation. According to this, the first relevant group of considerations for deciding the question of the admissibility of illegally obtained evidence focuses on the improper conduct of the investigation authorities. In this context, the court should consider the following issues:

First, what is the character and seriousness of the illegality or the unfairness that were involved in obtaining the evidence? Logic dictates that a technical, negligible or inconsequential violation of the rules of proper investigation is not the same as a serious breach of these rules involving a significant violation of one of the main basic rights of the person under investigation. In general, admitting evidence at a trial, even though it was obtained by means of technical and marginal defects, does not substantially violate the right of the accused to a fair trial, and therefore there will be no reason to exclude it. This result is desirable because ‘… the criminal trial should not adopt the form of a game of chess in which one wrong move determines the result of the game (per Justice Zamora in CrimA 1/48 Silvester v. Attorney-General [94], at pp. 18-19; see also my remarks in CrimFH 4603/97 Meshulam v. State of Israel [95], at p. 197). On the other hand, in cases where the evidence was obtained by means of a major violation of an express provision of statute that was intended to protect the rights of defendants in their interrogations, or in circumstances where obtaining the evidence involved a serious violation of one of the main basic rights of the person under investigation, the weight of the values that support the inadmissibility of the evidence will increase. Between these two extremes of the types of violations there is a wide range of possibilities. Not every departure from the investigation rules and not every method adopted in an investigation, even if they are unacceptable to the court, will result in the inadmissibility of the evidence. It should be stated that the seriousness of the violation of the rules of proper investigation constitutes a main consideration for excluding illegally obtained evidence in all the legal systems in which relative doctrines of inadmissibility are practised. It should also be emphasized that this approach is consistent with the doctrine of relative voidance that is practised in our legal system, according to which not every deviation from the law nor every impropriety will lead to a result of voidance.

Second, the court should examine whether the law enforcement authorities made use of the improper investigation methods intentionally and deliberately or in good faith. When the investigation authorities have intentionally violated the provisions of law that bind them or they have knowingly violated a protected right of the person under investigation, this is capable of increasing the seriousness of the violation of the rules of proper investigation and the possible violation of due process if the evidence is admitted in the trial. Conduct that involves an intentional violation on the part of the investigation authorities may, therefore, be a circumstance of considerable weight for declaring the evidence inadmissible even when the defect is not serious. Notwithstanding, it should be pointed out that the fact that the authority acted in good faith does not necessarily prevent the evidence being excluded when this is required in order to protect the right of the accused to a fair criminal trial. Thus, for example, in circumstances where the defect that occurred in the manner of obtaining the evidence was serious and involved a substantial violation of the protected rights of the person under investigation, then the mere fact that the authority acted in good faith will not prevent the evidence being excluded. It should be noted that this is also the case law rule practised in Canada and in England (with regard to the case law rule in Canada, see the leading decision in R. v. Collins [108]; with regard to the rule in England, see Archbold, Criminal Pleading, Evidence and Practice, supra, at p. 1480).

Third, the court should consider whether in the case before it there are ‘mitigating circumstances’ that are capable of reducing the seriousness of the illegality that was involved in obtaining the evidence. This is the case, for example, when the illegality committed by the investigation authorities was intended to prevent the disappearance or destruction of essential evidence by the accused, when the accused contributed to the illegality in conducting the investigation, by abusing his rights, or when the illegality was the result of an urgent need to protect public security (see and cf. Smirk v. State of Israel [18], at p. 546).

Fourth, the court should consider how easy it would have been to obtain the evidence lawfully. If obtaining the evidence in permitted ways was possible and easy, then the violation of the rules of proper investigation should be considered more serious, in such a way that it will support the conclusion that admitting the evidence in the trial will create a serious and disproportionate violation of the right of the accused to a fair trial.

Finally, the court may consider whether the evidence would have been discovered or obtained by the law enforcement authorities even without making use of the improper investigation methods. When the answer to this question is yes, this may reduce the strength of the violation of the right of the accused to a fair trial if the evidence is admitted in the trial (see and cf. Hasson v. State of Israel [57], at p. 283, where the court concluded that in view of all the circumstances of the case, the accused would have made his confession even had it not been for the illegal violation of his right to consult a lawyer. Therefore the court refrained from declaring the statement inadmissible in that case).

(b) The degree to which the improper investigation method influenced the evidence that was obtained

71. The second relevant group of considerations for the exercising of judicial discretion within the framework of the case law doctrine of inadmissibility concerns the degree to which the illegal or unfair investigation method affected the evidence that was obtained. In this context, the court should consider two interrelated questions: first, to what degree was the illegality that was involved in obtaining the evidence likely to affect the credibility and probative value of the evidence. In circumstances where there is a concern as to the credibility of the evidence, the tension between the value of discovering the truth and the protection of the fairness and integrity of the process is reduced, in such a way that may support the inadmissibility of the evidence. Second, the court should consider whether the existence of the evidence is independent and distinct from the illegality that was involved in obtaining it. In circumstances where the answer to this is yes, the improper investigation methods are not capable of affecting the content of the evidence, and this is likely to constitute a consideration in favour of admitting it in the trial.

With regard to the two aforesaid questions, there may be great importance in the character of the evidence (tangible, verbal, etc.) that is being considered. Tangible evidence, such as firearms, drugs or stolen property have an independent and distinct existence from the illegality that was involved in obtaining them, and as a rule the aforesaid illegality will not be sufficient to render this evidence inadmissible. Therefore, the weight of the considerations that support the admissibility of tangible evidence is usually great (see J.R. Spencer’s chapter on ‘Evidence’ in European Criminal Procedure (Cambridge Studies in International and Comparative Law, M. Delmas-Marty and J.R. Spencer eds., 2002), at p. 605). Notwithstanding, it should be emphasized that even in this context we are not speaking of a strict rule, and the matter depends on the circumstances of each case on its merits.

In closing these remarks, I think it right to point out that since the case law doctrine of inadmissibility that we are adopting is not mainly based on an educational-deterrent purpose, we should not adopt in our legal system the ‘fruit of the poisonous tree’ doctrine that prevails in the United States (see para. 56 supra on this doctrine). The question of the admissibility of evidence that was found as a result of other inadmissible evidence should be considered in accordance with the circumstances of each case on its merits, while taking into account the effect that admitting the aforesaid evidence would have on the right of the accused to a fair criminal trial. In this context, the court should examine all of the considerations that we discussed above, including the character and seriousness of the illegality that led to obtaining the original evidence, the nature of the derived evidence concerned and the connection between it and the illegality that was involved in conducting the investigation.

(c) The social damage, as compared with the social benefit, in excluding the evidence

72. The third group of considerations that may be relevant when deciding the question of the admissibility of illegally obtained evidence concerns the effect that excluding the evidence will have on the work of administering justice in its broad sense. The main question that arises in this context is whether the social price involved in excluding the evidence is higher than the potential benefit that will arise from admitting it. The main parameters in this regard are the importance of the evidence for proving guilt, the nature of the offence attributed to the accused and its degree of severity. When we are concerned with evidence that is important and decisive for the prosecution and when the offences attributed to the accused are very serious, the exclusion of the evidence may cause excessive harm to the public interests of fighting crime and protecting public safety and the victims of crime. In these circumstances, the exclusion of the evidence will lead to the fact that the person who is guilty of committing serious offences will not be held accountable for his deeds, a consequence that may in itself undermine the administration of justice and public confidence in the courts. For these reasons, the courts in England and Australia are accustomed to taking into account the degree to which the evidence is essential and the seriousness of the offence attributed to the accused, when they decide the question of the admissibility of illegally obtained evidence (see Spencer, ‘Evidence,’ supra, at p. 605; Bunning v. Cross [106]; s. 138(2) of the Uniform Evidence Acts 1995 in Australia.

73. Notwithstanding the aforesaid, I am not unaware that giving weight to the importance of the evidence and the seriousness of the offence attributed to the accused when deciding the question of the admissibility of illegally obtained evidence involves certain difficulties. Taking into account the aforesaid considerations may lead to a situation in which precisely in investigations of serious felonies in which the constitutional right of the accused to dignity and liberty deserves substantial protection, the compliance with the rules of conducting a fair and proper investigation will decrease. In this context we should point out that in R. v. Collins [108] the Supreme Court of Canada saw fit to include the seriousness of the offence among the relevant considerations for exercising judicial discretion within the framework of s. 24(2) of the Charter, but in practice the courts in Canada tend to give the aforesaid consideration very little weight, and they do not take it into account when they decide the question of the admissibility of evidence that was obtained in violation of the Charter (see Hogg, Constitutional Law of Canada, supra, at pp. 931-932; for criticism of this trend in Canadian case law, see Stribopoulos, ‘Lessons from the Pupil: A Canadian Solution to the American Exclusionary Rule Debate,’ supra, at footnote 229).

The question of the degree to which the courts in Israel should take into account the importance of the evidence and the seriousness of the offence attributed to the accused within the framework of exercising their discretion under the case law doctrine of inadmissibility does not require a decision in the appellant’s case and we can leave this too to be decided in the future.

74. As I have already said, the list of considerations enumerated above does not purport to be a closed and exhaustive list. It gives examples of the type of circumstances and facts that may influence the court when exercising its discretion within the framework of the case law doctrine of inadmissibility. These facts concern, on the one hand, the degree of the harm to the accused’s right to a fair trial if the evidence is admitted in court, and, on the other hand, the extent of the harm to the conflicting interests if the evidence is declared inadmissible. It is important to emphasize that none of the considerations that we have discussed have an exclusive or decisive status, and that the relative weight of the aforesaid considerations will be determined in the circumstances of each case on its merits. Thus, for example, if the violation of the rules of proper investigation is serious and without it the evidence would not have been obtained, and if the offence attributed to the accused is a less serious one, then the weight of the interests supporting the admissibility of the offence will be reduced. In such circumstances, the protection of the right of the accused to a fair trial is likely to lead to the exclusion of the evidence.

In view of the fundamental balancing formula that we have discussed, and in view of the guidelines that we have set out above, I think that the concerns that the prosecution expressed before us, with regard to the uncertainty that will be caused as a result of the adoption of a case law doctrine of inadmissibility in our legal system, are exaggerated. Since we are speaking of a flexible doctrine, often the result will be identical to the one under current case law. In certain cases, a change will be required in the outcome, but this change is unavoidable in view of the normative changes that have been brought about by the Basic Laws that address human rights. This change will find expression as case law develops, by means of careful progress from case to case and by specific applications of the balancing formula that we have discussed, according to the circumstances of each case on its merits. In time, the nature and scope of the case law doctrine of inadmissibility, for which we have laid the foundation in our judgment, will become clear. Baseless applications for the exclusion of evidence will become fewer, and the arguments will become more focused. The experience of other countries that have adopted relative doctrines for the inadmissibility of illegally obtained evidence — whether in case law or in statute — shows that it is indeed possible to overcome the concerns with regard to uncertainty and the flooding of the courts with baseless claims that illegally obtained evidence should be excluded. It can be assumed that when the initial transition period is over, the same will also be the case in Israel (see and cf. the remarks of President Barak in CrimApp 537/95 Ganimat v. State of Israel [45], at p. 420, and his remarks in Barki Feta Humphries (Israel) Ltd v. State of Israel [47], at pp. 787-788).

The application of the case law doctrine of inadmissibility to defendants’ confessions

75. The last issue that we shall address before we turn to consider the specific case of the appellant before us concerns the question of the relationship between the rule of inadmissibility provided in s. 12 of the Evidence Ordinance and the case law doctrine of inadmissibility that we are adopting into our legal system. The interpretive question that arises in this regard is whether the rule of inadmissibility provided in the aforesaid s. 12 constitutes a comprehensive arrangement for the purpose of the admissibility of confessions of the accused, as argued by the attorney-general in his summations before us and as thought by the one of the justices of the appeals court martial in the minority opinion, or whether the aforesaid s. 12 does not constitute a comprehensive arrangement as aforesaid, and therefore there is nothing to prevent the case law doctrine of inadmissibility applying also to a confession of an accused.

According to our interpretive approach as set out in para. 32 supra, in addition to the purpose concerning the protection of the credibility of defendants’ confessions, the rule of inadmissibility provided in s. 12 of the Evidence Ordinance is intended to protect the right of the person under interrogation to physical and emotional wellbeing and his right to the autonomy of free will. The inadmissibility of a confession under s. 12 therefore constitutes a relief for a substantial violation of one of the aforesaid rights of the accused when the confession was made. By contrast, the case law doctrine of inadmissibility is intended to prevent an illegal violation of the right to a fair criminal trial if the evidence is admitted in the trial. These purposes do not conflict with one another, but are complementary. Consequently, there is a purposive justification for having the case law doctrine of inadmissibility apply to the confessions of defendants in addition to the rule of inadmissibility provided in s. 12 of the Evidence Ordinance. Accordingly, a defendant’s confession may be found to be admissible under the provisions of s. 12 of the Evidence Ordinance but inadmissible within the framework of the case law doctrine of inadmissibility, and vice versa.

Support for this conclusion can be found in comparative law. The Supreme Court of Canada held that the ‘free will’ test that was originally adopted in its case law from English common law continues to exist alongside the doctrine of inadmissibility provided in s. 24(2) of the Charter. It was also held that the ‘free will’ test cannot prevent the application of the aforesaid doctrine to defendants’ confessions (see R. v. Oickle [107]). In addition, we should point out that the doctrines of inadmissibility adopted in England and Australia with regard to illegally obtained evidence have also been applied to all types of evidence, including defendants’ confessions, alongside special arrangements that were provided in legislation with regard to the admissibility of defendants’ confessions (with regard to the application of the doctrine of inadmissibility enshrined in s. 78 of the PACE in England to defendants’ confessions, see Archbold, Criminal Pleading, Evidence and Practice, supra, at p. 1476, and Tapper, Cross and Tapper on Evidence, at p. 193; with regard to the application of the Australia doctrine of inadmissibility, which is enshrined in s. 138 of the Uniform Evidence Acts, to defendants’ confessions, see Australian Law Reform Commission, Review of the Uniform Evidence Acts (2005), at para. 14.67).

In view of all of the aforesaid reasons, we are led to the conclusion that s. 12 of the Evidence Ordinance is not a comprehensive arrangement with regard to the admissibility of confessions made by an accused in his interrogation. Consequently there is nothing that prevents the case law doctrine of inadmissibility also applying, in accordance with its purpose, to evidence of this kind. In closing we should point out that a similar question may arise with regard to the relationship between the rules of inadmissibility provided in the Protection of Privacy Law and the Eavesdropping Law, on the one hand, and the case law doctrine of inadmissibility that we are adopting into our legal system, on the other. This question does not arise in the circumstances of the case before us. Therefore I see no need to decide this issue and it may be addressed at a later date.

Summary

76. A summary of the main points of the case law doctrine of inadmissibility, as set out above, is as follows:

The premise for the question of the admissibility of evidence is the one that has been established in Israel since its inception, that evidence which is relevant is admissible in a trial. Notwithstanding, according to the aforesaid doctrine, the court has jurisdiction to declare evidence inadmissible in criminal cases, if it discovers that the evidence was obtained illegally and admitting it in the trial will create a substantial violation of the right of the accused to a fair trial contrary to the terms of the limitations clause. We are speaking of a fundamental balancing formula that seeks to achieve a proper compromise between all of the rights and interests that are relevant to the question of the admissibility of illegally obtained evidence, including the discovery of the factual truth, the fight against crime and the protection of public safety and the rights of victims of the offence on the one hand, as opposed to the protection of the rights of the accused and the fairness and integrity of the criminal trial on the other.

The aforesaid balancing formula will be applied at the discretion of the court, while taking into account the circumstances of each case on its merits and in accordance with the guidelines that we have discussed. These guidelines concern the nature and seriousness of the illegality that was involved in obtaining the evidence, the degree to which the improper investigation method affected the evidence that was obtained and the question of the social damage as compared to the social benefit involved in excluding it. The aforesaid doctrine will be a general one and it will be applied to all types of evidence, including defendants’ confessions.

77. It should be noted that our judgment assumes an infrastructure for adopting a case law doctrine of the inadmissibility of illegally obtained evidence, but our remarks do not provide a complete solution to all of the questions involved in the adopting of such a doctrine. Thus, for example, our judgment does not address the question whether an application to exclude illegally obtained evidence is the privilege of the accused only, or whether the prosecution may also make such an application; or, for example, who has the burden of proving the evidence involved in an application for such an exclusion and what is the appropriate stage for making the application. These questions will certainly be addressed in the future, whether in legislation that is consistent with the provisions of the Basic Law, or in the case law of the court, by means of careful steps from one case to the next.

78. Naturally, since we had not yet adopted our case law doctrine, the parties refrained from addressing in their arguments the question of when the case law doctrine that illegally obtained evidence is inadmissible should be introduced. This doctrine belongs to the sphere of the rules of evidence in criminal proceedings and its purpose is to protect the right of defendants to a fair criminal trial. The adoption of the doctrine in our legal system is a required and expected development (see para. 49 supra), and its application does not harm a reliance interest worthy of protection. In view of all this, the ruling made by us shall apply to every defendant whose case is pending before the court, in so far as there are grounds for applying it in the circumstances of the case (see and cf. LCA 8925/04 Solel Boneh Building and Infrastructure Ltd v. Estate of Alhamid [96]; see also RT 8390/01 Axelrod v. State of Israel [97].

79. In conclusion and after reading the opinion of my colleague Justice Grunis, I would like to point out that contrary to what is implied by para. 6 of the opinion, my opinion does not address the ruling made in CrimA 242/85 Hazan v. State of Israel [98], and I see no reason to express any position on that issue. With regard to the other arguments that appear in the opinion of my colleague Justice Grunis, the response to them can be found in my remarks above, and I see no need to add anything further in this regard.

From general principles to the specific case — applying the doctrine of inadmissibility to the circumstances of the appellant’s case

80. As I explained at length at the beginning of our deliberations, in the course of admitting the appellant into Prison 6 for being absent from the army without leave, a small packet wrapped in paper fell from his underpants, and then the appellant said: ‘It is grass, I can explain.’ The next day, the appellant was interrogated in the prison by a military interrogator. When he began taking his statement, the interrogator warned the appellant of his right to remain silent, but he refrained from advising him of his right to consult a lawyer. In the course of taking the aforesaid statement, the appellant confessed to the military investigator that he had smoked a drug of the cannabis type on several occasions during the period that he was absent from the army without leave. It will be remembered that before he finished taking the statement, the military investigator left the interrogation room and spoke on the telephone with the military police commander who told him to arrest the appellant. At the end of the aforesaid telephone conversation, the investigator returned to the interrogation room and continued taking the appellant’s statement. Only a quarter of an hour after finishing taking the first statement did the military investigator notify the appellant that he was under arrest and that he had the right to consult a lawyer.

The prosecution did not dispute, either before the court martial or before us, that the military investigator acted illegally when he refrained from warning the appellant of his right to consult a lawyer before he began taking his statement. As we clarified above, the investigator acted in this matter in contravention of the arrangement that was provided at that time in the guidelines of the military police investigation department and that was later enshrined in s. 227A1 of the Military Jurisdiction Law, according to which a soldier should be informed of his right to consult a lawyer whenever there is an almost certain likelihood that he will be arrested. In view of the aforesaid omission of the military investigator, the appellant was unaware of the right to consult a lawyer before his first statement was taken. Therefore the appellant did not ask to consult a lawyer before he confessed that he had used a dangerous drug while he was a soldier. In these circumstances, the parties before us agree that not giving the appellant the notice about his right to consult a lawyer amounted to a violation of the actual right to consult a lawyer (see para. 19 supra).

We have come to the conclusion that notwithstanding the aforesaid violation of the right to consult a lawyer, there was no substantial violation of the appellant’s right to autonomy of will and freedom of choice when he made his confession. In view of this, we held that we should not intervene in the decision of both instances of the court martial, which did not declare the confession of the appellant inadmissible under the provisions of s. 12 of the Evidence Ordinance. But this conclusion is insufficient to end our deliberations. There is a separate question as to whether there is a basis for excluding the aforesaid confession of the appellant in accordance with the case law doctrine of inadmissibility that we are adopting into our legal system. It should be stated that the aforesaid doctrine applies in the appellant’s case in view of what is stated in s. 476 of the Military Jurisdiction Law, that: ‘The rules of evidence that are binding in criminal matters in the courts of the state are also binding in a court martial…, when there is no contrary provision in this law.’ It should also be noted that even though s. 9 of the Basic Law: Human Dignity and Liberty provides a special limitations clause for the security forces, as a rule this does not change the fundamental balancing formula on which the case law doctrine of inadmissibility is based or the guidelines for exercising judicial discretion within this framework. If and in so far as it is required, the nature and character of the military service will affect the application of the criteria that we have discussed, in view of the circumstances of each case on its merits (on the special limitations clause provided in s. 9 of the Basic Law, see the opinion of Justice Zamir in HCJ 6055/95 Tzemah v. Minister of Defence [99], at pp. 262-267 {657-663}).

81. In the circumstances of the case before us, the first condition for applying the case law doctrine of inadmissibility is satisfied, since there is no dispute before us that the military investigator acted illegally when he refrained from notifying the appellant before beginning to take his statement about his right to consult a lawyer. It remains, therefore, to examine whether admitting the appellant’s confession as evidence in the trial will create a significant violation of his right to a fair criminal trial contrary to the terms of limitations clause.

We discussed above the importance of the right to consult a lawyer and its contribution to protecting the fairness and propriety of the interrogation proceedings (see para. 14 et seq.). In view of this, we said that a substantial violation of the right to consult a lawyer in the interrogation proceedings may in certain circumstances harm the fairness of the criminal justice process as a whole. In the appellant’s case, the District Court Martial held, by a majority, that the military investigator acted — throughout all the stages of the interrogation — knowingly and intentionally in violation of the defendant’s [the appellant’s] right to consult a lawyer, and there was no basis for holding him to have acted in good faith in this respect’ (p. 38 of the verdict). The Appeals Court Martial did not see fit to intervene in the aforesaid factual finding, and we too will refrain from doing so in the proceeding before us. The fact that the military investigator refrained intentionally from informing the appellant of his right to consult a lawyer and deliberately violated this basic right increases the severity of the illegality that was involved in obtaining the appellant’s confession and constitutes a weighty reason for excluding it as evidence. To this we should add the considerable ease with which it was possible to obtain the appellant’s confession lawfully, and also the fact that the offences attributed to the appellant are not the most serious ones in the statute book. On the other hand, it should be noted that in his arguments before the court martial, counsel for the defence confirmed that the illegality under discussion did not undermine the credibility of the content of the confession given by the appellant in his interrogation. But the prima facie credibility of the confession, in itself, is incapable of being a sufficiently weighty reason when confronted with all the other considerations that we have discussed. Therefore, we are drawn to the conclusion that in the unique circumstances of the case before us, admitting the confession of the appellant in evidence will create a substantial and disproportionate violation of his right to a fair criminal trial and therefore we should declare it inadmissible.

In addition to the aforesaid, we should point out that counsel for the appellant argued in the notice of appeal that was filed in the court that the violation of the duty to give notice of the right to consult a lawyer was not an isolated event and that at the time the appellant was interrogated, the aforesaid violation was a common phenomenon in the investigations of the military police investigations department. The National Public Defender’s Office raised a similar argument with regard to police investigations. In their written summations, the National Public Defender’s Office gave details of the results of a field survey carried out at the end of 1999 and during 2003. The research was conducted on a group of 220 persons under arrest in the Tel-Aviv District. It is argued that the findings of the research show that a significant number of persons under arrest at police stations do not receive a statutory notice of their right to consult a defence lawyer. I would remark on this that I doubt whether the research method and the population group size that was examined by it allow reliable and comprehensive conclusions to be reached as was claimed before us. Indeed, the Public Defender’s Office confirmed in its arguments that there may be a margin of error in the findings of the research that was conducted. Nonetheless in the case before us the need to decide this does not arise: first, as we have clarified above, the case law doctrine of inadmissibility is not based mainly on an educational-deterrent purpose. Therefore there is no need to prove that the illegality that was involved in obtaining the evidence is a common phenomenon, even if such proof is likely to be a circumstance that the court would take into account within the framework of its considerations. Second, in view of all the reasons that were set out above, and especially in view of the finding of the court martial that the military investigator intentionally refrained from advising the appellant of the right to consult a lawyer, the confession that the appellant made in the interrogation should be declared inadmissible, whether the violation of the duty to give the notice is a common phenomenon as alleged by the appellant and the National Public Defender’s Office, or not.

82. Consequently, in view of all the reasons that I have discussed above, I have reached the conclusion that we should allow the appeal in the appellant’s case and declare his confession inadmissible in accordance with the conditions of the case law doctrine of inadmissibility. The appellant should therefore be acquitted of the three offences of using a dangerous drug, whereas his conviction on the offence of possessing a dangerous drug that he confessed should remain unaffected. In so far as the appellant’s sentence is concerned, for the reasons set out above, the court martial refrained from imposing an actual custodial sentence for his conviction of the offences of making use of a dangerous drug, and it thought it sufficient to impose a suspended sentence for these offences. The operational period of the suspended sentence has already ended, and to the best of our knowledge the suspended sentence was not implemented during it.

I therefore propose that the appeal should be allowed and that the appellant should be acquitted of the three offences of making use of a dangerous drug.

 

 

President A. Barak

I agree.

 

 

Justice E. Rivlin

I agree.

 

 

Justice A. Procaccia

I agree.

 

 

Justice E.E. Levy

I agree.

 

 

Justice M. Naor

I agree.

 

 

Justice S. Joubran

I agree with the illuminating and comprehensive opinion of my colleague, Justice Beinisch.

 

 

Vice-President Emeritus M. Cheshin

I have read the magnum opus of my colleague, Justice Beinisch, and I agree with her conclusions, both with regard to the interpretation and implementation of the provisions of s. 12 of the Evidence Ordinance and with regard to the validity and effect of illegally obtained evidence. If I wish therefore to add two or three footnotes, these are not intended to derogate in any way from the illuminating remarks of my colleague.

2.            With regard to the interpretation and scope of application of the provisions of s. 12 of the Evidence Ordinance, as my colleague said in her opinion, the core of the interpretation proposed by her was inherent in the provisions of s. 12 already before the enactment of the Basic Laws. All that has happened is that the Basic Laws and the ‘spirit of the times’ have germinated the seed that was previously dormant and hidden within the provisions of s. 12; now that the seed has been germinated, it has been nourished by the Basic Laws and the ‘spirit of the times,’ and thus it has succeeded in sprouting and growing until it has brought forth fruit, which is the fruit that we now have before us.

3.            The interpretation currently being proposed for the provisions of s. 12 has two tributaries. The source of the first tributary in the language of s. 12. The court should ascertain that a confession brought before it as evidence was ‘free and willing,’ nothing more. But now this tributary is seeking to increase by one level or several levels the degree of abstraction of the concepts ‘free and willing,’ by determining that the essence of the matter before us, and other matters, is the autonomy of the individual and the freedom of choice given to him to make — or not to make — a ‘free and willing’ confession. Only someone who has personal autonomy — or, to put it another way, someone whose personal autonomy has not been substantially violated — can confess freely and willingly, and only a confession made by someone in this state can have a presumption of truth. Making a ‘free and willing’ confession is merely one of the manifestations of personal autonomy, and instead of focusing on the manifestation (the external appearance), we should prefer to examine the source, the root of the manifestation. It need not be said that the autonomy of the individual inherently includes also his right to physical and emotional wellbeing. We must remember and safeguard all this, because the formulation of criteria is only the beginning of the work; the essence lies in the methods of implementing them and in erecting fences around them.

4.            The second tributary is the ‘spirit of the times,’ an inspiration that we have been fortunate to receive from the Basic Laws, from the general atmosphere, and no less importantly from the spirit of the age that reaches us mainly from countries with which we have a common way of legal thinking. It has been said in case law on more than one occasion that the interpretation of a statute of the Knesset is not like the interpretation of an old inscription found in an archaeological excavation. A statute of the Knesset is like a living and breathing fabric that is nourished by the spirit and substance of society as it prevails from time to time. The basic principles and doctrines that are a product of the age enter into the law and nourish its roots. We ourselves are the products of the ‘spirit of the times,’ and with our spirit — the ‘spirit of the times’ — we will establish and strengthen the law. See and cf. CFH 7325/95 Yediot Aharonot Ltd v. Kraus [100], at pp. 71 et seq.; LCA 6339/97 Roker v. Salomon [101], at pp. 265 et seq..

5.            ‘This person came to reside and he has acted as a judge’ was the angry complaint of the wicked people of Sodom against Lot (Genesis 19, 9 [111]). We too can say this — here in the positive sense of the expression — with regard to the doctrine called the doctrine of ‘relative voidance’ or ‘relative result.’ The doctrine came to us only recently, and it has taken control of spheres of law that our predecessors never imagined. And it is also true that we have always availed ourselves of this doctrine (in part), albeit not under this name. So we see that the doctrine proposed by my colleague, Justice Beinisch, with regard to the inadmissibility of evidence that was obtained by means of an illegal criminal proceeding — a doctrine of ‘relative inadmissibility’ — is merely a child of its parent, the doctrine of ‘relative result.’

6.            A final comment: we are discovering, not for the first time, that history repeats itself, albeit on higher levels of sophistication and abstraction than in the past. Thus we see that during the formative period of the common law, the courts fashioned raw materials into fundamental principles, doctrines and patterns of thinking. In the next stage, the more advanced stage, the courts, as well as the legislature, took steps to crystallize the rules of law, to pour the primeval material into more rigid utensils, which were supposed to make it easier for the courts to apply the law to sets of facts that came before them for a decision. The purpose of the crystallization was that instead of the courts being required to concern themselves, again and again, with tens or maybe hundreds of precedents, the courts and the legislature created relatively strict formulae to facilitate the work of the courts. And now we come to the present. The time has come to make strict frameworks flexible, to interpret concepts according to their purpose, to examine the origins of rules, to infuse into rules that have been established the ‘spirit of the times’ and the concepts of justice that are accepted by us at this time. This is what my colleague Justice Beinisch has done, and may she be blessed for it.

 

 

Justice A. Grunis

1.            My colleague Justice D. Beinisch discussed in her comprehensive and penetrating opinion a long list of legal issues in the field of the rules of criminal evidence. Because of various constraints, I cannot elaborate on the many questions that arise and I will state my position briefly and succinctly, from the difficult issues to the easier ones, or, to be more precise, from general principles to the specific case.

2.            The preliminary and first question that arises is whether it is desirable that the court should adopt, by means of ‘judicial legislation,’ a broad doctrine concerning the inadmissibility of illegally obtained evidence. Indeed, my colleague restricts and qualifies the scope of the doctrine, but still the question remains as to whether such a significant step ought not to be taken by the legislature, particularly in view of the fact that specific arrangements with regard to the admissibility of evidence that originated in illegal acts were enacted by the Knesset (s. 12 of the Evidence Ordinance [New Version], 5731-1971 (hereafter — the Evidence Ordinance); s. 13 of the Eavesdropping Law, 5739-1979 and s. 32 of the Protection of Privacy Law, 5741-1981), and at a time when draft laws on the issue have once again been tabled in the Knesset. Since the opinion of my colleagues supports the adoption of such a doctrine, I too shall address the merits of the matter.

3.            In my opinion, before we begin to examine the important question under discussion — the adoption of a doctrine concerning the inadmissibility of illegally obtained evidence — we should examine the values that we are interested in realizing, and in particular we are obliged to determine the importance of those values relative to one another. In my opinion, the highest value that should concern us is to restrict, in so far as possible, the fear of false convictions. The next most important value is the public interest in achieving the conviction of those persons who have committed crimes. The combination of these two values, even from the viewpoint of their relative status, is expressed in the statement ‘better ten guilty men go free than one innocent one be convicted,’ or, in the language of Maimonides: ‘It is better and more desirable to acquit a thousand offenders than to kill one innocent person at some time in the future’ (Maimonides, Sefer HaMitzvot, Prohibitions, 290 [112]). On the next level of importance, we arrive at the need to safeguard the fairness of the criminal trial in its procedural aspect, as distinct from its ultimate purpose, namely the determination of the accused’s guilt or innocence.

4.            Throughout the opinion of my colleague Justice Beinisch, she mentions the transition that has occurred in recent decades in the sphere of the rules of evidence, from admissibility to weight. Arrangements that determined in what conditions evidence would be admitted have been replaced by the rule that holds almost all evidence to be admissible, so that the court will consider it and will be required to determine its weight. Those who support this approach believe that it gives expression to the main purpose of the court, which is discovering the truth. The argument against admissibility barriers is that they may impede the ability of the court to discover the truth, since it will be obliged to ignore relevant evidence. There is no doubt that in certain cases the approach that bars admissibility will result in the truth not coming to light. We should remember that in the vast majority of cases such an approach within the framework of the criminal trial will work against the prosecution and not against the accused. The result is likely to be that the guilty person is acquitted in his trial because incriminating evidence was not admitted. By contrast, admitting the evidence and moving the scrutiny to the question of weight is likely to result in there being cases where the innocent man is found guilty. In my opinion, these opposites of the innocent and the guilty should not be treated equally. The transition from admissibility to weight is likely to create a symmetry between them. In this regard, I can merely cite the remarks of Justice S. Levin, in the minority opinion in State of Israel v. Tubul [67], at pp. 359-360:

‘In addition to theoretical questions of interpretation, from between the lines and from the very lines of the opinion of the majority justices there emerges an approach that if the courts remove the “technical barriers” of admissibility that confronted them in the past and still do today, the power of the court to do justice and to determine the facts as they really were will be increased; this approach gives decisive weight to what it regards as the unlimited power of the courts to discover the truth on the basis of their impression of the testimonies alone, and it seeks to remove from its path procedural and evidential rules that, in the opinion of the supporters of this approach, have become antiquated.

In my opinion, the approach of the majority judges is too simplistic; it emphasizes individual cases in which the court, because of evidence that was excluded, did not discover the truth (and such cases definitely do exist) but it ignores the existence of many other cases in which different judges may be impressed differently by particular evidence and therefore reach different factual findings from one another; not only is the discernment capacity of different judges dissimilar, but sometimes the period of time during which the evidence is heard and the short time during which a witness is on the witness stand do not allow the court to reach sufficiently definite conclusions, and in addition, the “truth” is determined only according to reality as it appears from the evidence, which may not reflect reality as it truly is. In such circumstances, providing so-called “formal” evidential barriers is capable of balancing the picture and changing the result, to some extent, in favour of standardization in determining factual findings, contributing to legal certainty and serving as a kind of constitutional safeguard against mistakes or arbitrariness; the existence of “formal” barriers as aforesaid is especially required in a legal system like ours, in which the determination of factual findings is usually solely the province of the trial court, and the court of appeal does not tend to intervene in these except in special and rare cases. It should be noted that I do not intend to say that every “formal” provision is desirable merely because it is such, but that in each case we should examine to what extent it serves a worthy purpose and is intended to balance risks that should be avoided…

There is no doubt that any legal system that prefers the existence of evidential or procedural safeguards to the unlimited discretion of the court, or that excludes them, pays a price as compared with the opposite system. Indeed, in every case where there is a conflict between the approaches, the legislator or the interpreter, as applicable, must create the appropriate balancing formula that will, in so far as possible, give the proper weight to the conflicting interests and considerations.’

It should be noted that the fear of false convictions is even greater when we are concerned with a confession, since the additional evidence required for a conviction on a confession is minimal.

5.            My colleague Justice D. Beinisch considered at length the interpretive development of s. 12 of the Evidence Ordinance. It is clear that originally the section applied only to cases in which there was at least a doubt as to the credibility of the confession. Case law extended the interpretation of the section so that in certain circumstances there was no further need to ascertain how the action of the person in authority affected the credibility of the confession. The broader approach is consistent with the approach that a violation of the autonomy of the person under interrogation (who later becomes the accused) or his freedom of choice is what lies at the heart of s. 12. I wonder whether today, when the doctrine of illegally obtained evidence is being adopted, there is no basis for returning to the original interpretation of s. 12. In other words, the question is why we do not leave outside the framework of s. 12 the problematic cases in which there is no difficulty with regard to the credibility of a confession, so that these will be subject to the same rules of the doctrine that apply with regard to the other types of evidence.

6.            Another point that should be considered concerns the distinction between a confession of an accused and a statement of a witness (or of another defendant in the same indictment). Consider a case in which the confession of an accused is also used as evidence against another defendant (in one indictment). Let us assume that because of various defects in the investigation, the court decides that the confession should not be admissible against the accused who confessed because of a doubt as to its credibility. Is it possible that the very same evidence will be admissible against another defendant in the indictment? (See A. Stein, ‘Section 10A of the Evidence Ordinance and its Interpretations: a Positive Development or Danger of a Miscarriage of Justice?’ 21 Hebrew Univ. L. Rev. (Mishpatim) 325 (1992), at p. 339, footnotes 15-16). I think that case law has not gone so far as to hold that it is possible to rely on the statement against the other defendant, even if it is inadmissible in evidence against the person who made it because of the issue of credibility (the problem arose in Hazan v. State of Israel [98]; see the opinion of Justice S. Levin, at p. 526). I fear that the adoption of the doctrine is likely to lead to a slippery slope that in the end will result in a confession that is inadmissible against one defendant because of the problem of credibility (under s. 12 of the Evidence Ordinance) serving as a basis for a conviction of another defendant (according to the tests of the general doctrine).

According to my colleague’s position, we should examine the seriousness of the offence within the framework of all the considerations that the court should take into account when it decides how to address illegally obtained evidence. In other words, the more serious the offence, the less justification there will be for excluding the illegally obtained evidence. I agree with this only when there is no problem of credibility for a reason that would exclude a confession under s. 12 of the Evidence Ordinance according to its original interpretation. It is difficult to accept that it is not possible to rely on certain evidence in a case where the offence is a minor one, whereas it will be possible to make use of the same evidence when the offence is a serious one. The consideration of the seriousness of the offence will be permitted if the reason for the argument of inadmissibility is unrelated to credibility. Naturally, certain steps or actions of investigation authorities may be considered to create an absolute presumption with regard to undermining credibility (see Muadi v. State of Israel [36]).

7.            I shall now turn to two points that concern the facts of the case. It will be remembered that the appellant was not told by the military policeman who interrogated him that he was entitled to consult a lawyer. The policeman said to the appellant that he had the right to remain silent. Should the confession made by the appellant be excluded in these circumstances? There is no dispute that the interrogator violated his duty to notify the appellant of his right to consult a lawyer. Notwithstanding, there is no claim in the present case that there is a question as to the credibility of the confession. My opinion is that since the appellant was aware of his right to remain silent, the violation of the duty to notify him of the right to consult a lawyer, in itself, does not justify the exclusion of the confession. Had the interrogator also refrained from telling the appellant that he had the right to remain silent, it is possible that the two omissions jointly would justify the exclusion of the confession.

8.            The last point concerns the question of whether, and to what extent, we should attach weight to the intention of the interrogator, who, it will be remembered, intentionally refrained from notifying the appellant of his right to consult a lawyer. According to the position of my colleague Justice D. Beinisch, the finding that this was an intentional omission is a circumstance of considerable weight for excluding it as evidence. I will make two remarks about this: first, I have difficulty in understanding, in view of the circumstances of the case, what connection there is between the intention of the interrogator and the determination of inadmissibility. It is possible that considerable weight should be attached had the main purpose of the rule of inadmissibility been an educational-deterrent one. But according to the approach of my colleague, this is not the dominant purpose. Second, when we are speaking of a policeman whose job it is to interrogate suspects or witnesses, can we accept that such an omission is ever unintentional?!

9.            Therefore, were my opinion accepted, we would deny the appeal.

 

 

Appeal allowed, by majority opinion (Justice Beinisch, President Barak, Vice-President Emeritus Cheshin and Justices Rivlin, Procaccia, Levy, Naor and Joubran), Justice Grunis dissenting.

3 Elul 5765.

7 September 2005.

 

 

 

HCJ 7622/02

1.  David Zonstien

2.  Caplan Rami

3.  Uri Fien

4.  Ramah Shaham

5.  Maor Parsai

6.  Dr. Ori Tucker-Maimon

7.  Udi Elifanch

8.  Yaniv Itzkowitz

v.

Judge-Advocate General

 

The Supreme Court Sitting as the High Court of Justice

[November 23, 2002]

Before President A. Barak, Justice D. Beinisch and Justice A. Procaccia

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: Petitioners are reserve soldiers in the IDF, who refused to serve in the Administered Territories. They were subject to disciplinary proceedings, and were sentenced to their respective punishments. The subject of this petition is the decision of the Minister of Defense not to grant the petitioners an exemption from military reserve service.

 

Held: The Supreme Court held that exemptions from military service may be granted according to the discretion of the Minister of Defense, pursuant to section 26 of the Defense Service Law (Consolidated Version)-1986. The Court held that the question of granting exemptions to military service based on selective conscientious objections involved a delicate balance between the freedom of conscience and the public interest. Here, the public interest was that it was neither proper nor just to exempt part of the public from a general duty imposed on all others.  This was especially true when fulfilling the duty subjected a person to the ultimate trial—sacrificing his life.  This is certainly true when granting exemptions may harm national security and lead to administrative unfairness and discrimination in specific cases. As such, and under the circumstances, which included the current situation in Israel, the Court held that it saw no reason to intervene in the decision of the Minister of Defense not to grant exemptions for selective conscientious objectors. The balance between the considerations that led the Minister to this decision was, according to the Court, reasonable under the circumstances.

 

Basic Laws cited:

Basic Law: Human Dignity and Liberty

Basic Law: The Military

 

Legislation cited:

Military Justice Law-1955, §§ 122, 123, 125, 168

The Defense Service Law (Consolidated Version)-1986, §§ 36, 39(c)

 

Israeli Supreme Court cases cited:

[1]          HCJ 4062/95 Epstien v. Minister of Defense (unreported decision)

[2]          HCJ 2700/02 Barnowski v. Ministaer of Defense (unreported decision)

[3]          HCJ 1380/02 Ben Artzi v. Minister of Defense, IsrSC56(4) 476

[4]          HCJ 734/83 Shane v. Minister of Defense, IsrSC 38(3) 393

[5]          HCJ 292/83 Temple Mount Faithful Movement v. Police Commander of the Jerusalem Region, IsrSC 38(2) 449

[6]          See HCJ 3261/93 Manning v. Minister of Justice, IsrSC 47(3) 282

[7]          HCJ 399/85 Kahane v. The Managing Committee of the Broadcasting Authority, IsrSC 41(3) 255

[8]          CA 294/91 Jerusalem Burial Society v. Kestenbaum IsrSC 56(2) 464

[9]          CA 105/92 Re’em Engineer Contractors v. Nazareth-Ilit Municipality IsrSC 57(5) 19

[10]        HCJ 257/89 Hoffman v. Trustee of the Western Wall IsrSC 48(2) 265, 355.

[11]        EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset IsrSC 39(2) 225

[12]        HCJ 470/80 Algazi v. Minister of Defense (unreported case). 

[13]        HCJ 630/89 Machnes v. The Chief of Staff (unreported case). 

[14]        Kol Ha’am v. Minister of Interior IsrSC 7(2) 871

[15]        HCJ 953/89 Indor v. Mayor of Jerusalem IsrSC 55(4) 683, 689-91

 

United States Supreme Court cases cited:

[16]        Gillette v. United States, 401 U.S. 437 (1971)

 

German cases cited:

[17]        BverfGE 12, 45, 55

 

Israeli books cited

[18]        L. Shlef, The Voice of Dignity: Conscientious Objection Due to Civic Loyalty (1989)

 

Foreign books cited:

[19]        Conscientious Objection in the EC Countries (1992)

[20]        N. Keijzer, Military Obedience (1978)

[21]        C. Evans, Freedom of Religion Under the European Convention on Human Rights (2001)

[22]        M. Walzer, Obligations: Essay on Disobedience, War and Citizenship (1970)

 

Foreign articles cited:

[23]        K. Greenwalt, All or Nothing at All: The Defeat of Selective Conscientious Objection, 1971 Sup. Ct. Rev. 31

[24]        Ben. P. Vermeulen, Conscientious Objection in Dutch Law, in Conscientious Objection in the EC Countries (1992)

 

Miscellaneous:

[25]        The Proclamation of Independence of the State of Israel

 

Petition denied.

 

For the petitioners— Avigdor Feldman; Michael Sfarad

For the respondent— Anar Helman; Yuval Roitman

 

 

JUDGMENT

Justice A. Barak

 

Facts and Proceedings

 

1.  The eight petitioners before us serve in the IDF reserves.  They were called to reserve duty, and all reported to duty except petitioner number six.  When they discovered that their service would be in the area, they informed their commanding officers of their objection to serving in that region. Petitioner number six, who was aware that his service would be in the area, informed the authorities, at the outset, that he would not be reporting to duty.  The petitioners were consequently brought to disciplinary trial before military judicial officers for refusing to comply with an order, an offence under section 12 of the Military Justice Law-1955, and for not complying with an order, an offence under section 123 of the law.  They were sentenced to periods of detention ranging from 28 to 35 days. 

 

2.  Following his conviction, petitioner number one approached this court with a petition directed against the decision to subject him to a disciplinary hearing before a military judicial officer, as opposed to a Military Court. See HCJ 5026/02. On July 16, 2002 a judgment was given approving the parties’ agreement that the petitioner would withdraw his petition and instead approach the Judge-Advocate General [hereinafter the respondent], with a request to rescind the disciplinary judgment, under section 186 of the law.  The petitioner, along with six of the other petitioners before us (save petitioner number eight), then approached the respondent with that request. They based their request that the disciplinary judgments be rescinded on the argument that the actions attributed to the petitioners do not constitute offences.  They offered two reasons for this.  First, petitioners asserted the defense found in section 125 of the law—that service in the area inherently involves illegal activity, and refusing to carry out illegal orders constitutes a recognized legal defense. Second, petitioners asserted that the orders they were given violated their right to freedom of conscience and were thus unreasonable and invalid.

 

3.  On August 3, 2002, respondent denied the requests of petitioners 1–7 to rescind the disciplinary judgments handed down against them.  The respondent's decision stated that the petitioner's actions were offences, that the petitioners have no available defense, and that the orders themselves were reasonable.  The decision emphasized that the army’s activities in the area are legal and accord with the standards of international and humanitarian law—the goals of the activities in the area are to preserve peace and security and protect Israeli civilians from terrorist activities. As to the existence of a defense of conscientious objection, the decision added that such a defense only applies where there is a general conscientious objection to serving in the military altogether, and not in a case where one has selective objections which stem from ideological and/or political perspectives.  The decision also stated that the procedure employed by petitioners was unlawful. The applicants should have refused the call to duty itself (a “direct attack”), and not acted as they did by reporting to duty, then refusing to comply with a specific order, and only then raising an argument of defense (an “indirect attack”).  Petitioners’ application was denied for these reasons, which brought about the petition before us.

 

Petitioners’ Arguments

 

4.  Petitioners claim that respondent’s decision not to rescind the disciplinary judgments is flawed and that this flaw justifies the intervention of this Court and the invalidation of petitioners’ convictions.  Petitioners based their claim on the same arguments that they asserted in their application to respondent when they requested that he rescind the judgments.  Their first argument is that they can assert the defense found in section 125 of the law, since the occupation of the area and the military activities therein are illegal and in opposition to customary international law, fundamental principles of law, as well as the Basic Law: Human Dignity and Liberty.   Their second argument is that their actions do not constitute an offense, as they enjoy the constitutional defense of freedom of conscience.  In this regard, petitioners state that the nature of their service in the area requires them to perform acts which are radically at odds with their conscience, and that the orders they were given were wholly unreasonable.  As such, petitioners assert, this constitutional defense should be recognized even with regard to an objection to a specific order regarding specific activities in a specific location, considering the special circumstances which are inherent to in any international conflict, the significance of freedom of conscience, and the extent to which this conscience is injured. Petitioners supplemented their petition with the opinions of Professors Joseph Raz, David Hed and Alon Harel who, the petitioners claim, support their position – that they enjoy a constitutional defense which allows them to conscientiously object, even selectively.

 

5.  In his reply, respondent requested that we deny this petition.  Regarding the first argument, respondent claimed that military service in the area is legal and accords with the standards of international law.  Respondent asserts that this Court’s judgments, in various petitions, support this claim—the objective of the activities in the area is to preserve public order and defend the nation against an unrelenting wave of brutal terrorism. Regarding petitioners’ second argument, respondent claimed that petitioners’ objection to military service is selective—and not general—and, as such, only serves as a disguise for their political ideology. Respondent asserts that the issue at hand is not purely a question of conscience and, consequently, the petitioners are not entitled to an exemption.  As such, the army is prohibited from considering the petitioners’ motivations for their objections, as that would entail the consideration of questions of political ideology. Furthermore, respondent asserts that petitioners’ course of action was flawed in that they attacked the legality of the orders (“indirect attack”), as opposed to attacking the call to service itself (“direct attack”).  As such, respondent’s decision was acceptable, and this petition should be denied. Respondent supplemented his response with the opinions of Professors Avi Sagi and Ron Shapirah which, he claims, support his position—that the freedom of conscience and the right to object, as far as they stand, apply neither to the petitioners nor to the arguments upon which they base their request.

 

The Dispute

 

6.  During arguments before us on October 23, 2002—which the parties agreed to see as having issued an order to show cause— petitioners and respondent significantly limited their arguments. Petitioners dropped their first argument, that the activities carried out in the area are inherently illegal and in conflict with local and international law.  Respondent abandoned his claim that the course of action taken by petitioners provides sufficient grounds for the denial of this petition.  Thus, we have only one issue to resolve.  We will do so without expressing our opinion regarding the other questions which had previously been raised before us.  The issue regards the legality of the decision of the Minister of Defense not to grant petitioners an exemption from reserve duty for selective conscientious objection. Petitioners argue that no distinction should be made between general and selective objection, since both are based on the individual’s freedom of conscience.  In a democratic state, this freedom should be recognized by granting exemptions from service in both situations. Respondent’s position is that selective objections are not a protected expression of the freedom of conscience—it should not be recognized because, in the current reality in Israel, doing so would almost certainly cause substantial damage to national security.  Moreover, respondent asserts, the army is not even permitted to weigh considerations of selective objection, as they are fundamentally ideological and/or political.

 

The Normative Framework

 

7.  The Defense Service Law (Consolidated Version)-1986, § 39(c) exempts from military service “a female person of military age who has proved… that reasons of conscience… prevent her from serving in defense service.” What is the law regarding a male of military age who requests an exemption from military service?  This issue is governed by section 36 of the law:

 

The Minister of Defense may, by order, if he sees fit to do so for reasons connected with the size of the regular forces or reserve forces in the Israeli Defense Forces or for reasons connected with the requirements of education, security, settlement or the national economy or for family or other reasons

(1)          exempt a person of military age from the duty of regular service or reduce the period of his service;

(2)          exempt a person of military age from the duty of reserve service for a specific period or absolutely;

 

All agree that exemptions for conscientious reasons are included in those “other reasons” which allow the Minister of Defense to exempt a person from regular or reserve service. See HCJ 4062/95 Epstien v. Minister of Defense (unreported decision) [1]; HCJ 2700/02 Barnowski v. Minister of Defense (unreported decision) [2].  Justice M. Cheshin noted as much:

 

The Minister of Defense and those acting on his behalf agree that those “other reasons” include conscientious reasons for objection, in other words, a person of military age may be exempt from regular service if he is a conscientious objector and objects to the framework of military service as a matter of principle

 

HCJ 1380/02 Ben Artzi v. Minister of Defense [3]. A special military committee for exercising the Minister of Defense’s authority was established, which would investigate issues of conscientious objection. See Baronowski [2]. 

 

8.  The possibility of granting exemptions from military service for conscientious reasons is not unique to our situation or to Israel.  Justice M. Elon correctly stated that “the issue of conscientious objection has been much debated by jurists and philosophers, and has experienced many developments and various stages.” HCJ 734/83 Shane v. Minister of Defense, [4] at 401. Indeed, the question of granting exemptions for conscientious reasons has often been raised over the course of human history.  Originally, these reasons were principally religious.  In time, they expanded to include reasons of conscience which were not necessarily religious.  These non-religious reasons are founded on serious moral considerations – an individual’s perspective regarding right and wrong, which that individual considers himself bound to act in accordance with, and which acting against would severely injure that individual’s conscience. See BVerfGE 12, 45, 55 [17].  Different countries have reacted to this problem in various ways.  Many of the modern, democratic countries have established explicit statutory provisions which grant an exemption from military service for conscientious objectors. See L. Shlef, The Voice of Dignity: Consciencious Objection Due to Civic Loyalty (1989) [18]; Conscientious Objection in the EC Countries (1992) [19]; N. Keijzer Military Obedience 265 (1978) [20]; C. Evans, Freedom of Religion Under the European Convention on Human Rights 170 (2001) [hereinafter Evans] [30].

 

9.  The justification for granting exemptions from military service for reasons of conscience is not simple.  In Artzi [3], Justice M. Cheshin correctly noted “the question of exempting persons of military age from the duty of regular service due to conscientious objection is not at all an easy question.” Ultimately, we are dealing with a delicate balance between conflicting considerations. See K. Greenwalt, All or Nothing at All: The Defeat of Selective Conscientious Objection, 1971 Sup. Ct. Rev. 31, 47 [23]. On one side stands the important principle of freedom of conscience. “Every person in Israel is entitled to freedom of conscience… as it is one of the basic principles upon which the State of Israel is founded.” See HCJ 292/83 Temple Mount Faithful Movement v. Police Commander of the Jerusalem Region, [5] at 454. Freedom of conscience originates in the Proclamation of Independence [25], and is derived from the democratic nature of the State.  It is evident in the central status of human dignity and liberty in our legal system. See HCJ 3261/93 Manning v. Minister of Justice, [6] at 286.  The need to take the objector’s conscience into account stems from our respect for individual dignity and for the need to allow its development.  It is derived from a humanist position and from the value of tolerance. “Democratic government is founded on tolerance… This is tolerance of the actions and opinions of others… In a pluralistic society such as ours, tolerance is a unifying force which allows us to live together.” HCJ 399/85 Kahane v. The Managing Committee of the Broadcasting, [7] at 278. See also CA 294/91 Jerusalem Burial Society v. Kestenbaum, [8] at 481; CA 105/92 Re’em Engineer Contractors v. Nazareth-Illit Municipality, [9] at 210; HCJ 257/89 Hoffman v. Trustee of the Western Wall, [10] at 355.

 

10.  On the other hand stands another consideration—it is neither proper nor just to exempt part of the public from a general duty imposed on all others.  This is especially true when fulfilling the duty subjects a person to the ultimate trial—sacrificing his life.  This is certainly true when granting exemptions may harm security and lead to administrative unfairness and discrimination in specific cases.  

 

11.  In balancing these conflicting considerations, many of the modern democracies have, as we have seen, concluded that it would be proper, in all things related to exemption from military service, to attribute greater weight to considerations of conscience, as well as those of personal development, humanism and tolerance, over opposing considerations.  Consequently, many modern legal systems grant military service exemptions to pacifists, who conscientiously object to bearing arms and participating in war. This balance presumes that national security may be preserved without drafting those who request exemptions.  However, it seems that all agree that, where security needs are extreme, not even pacifists should be exempted. See M. Walzer, Obligations:  Essay on Disobedience, War and Citizenship 138 (1970) [22] [hereinafter Walzer].  “Civil rights are not a national suicide pact … Civil rights derived from the existence of the State, and they should not be used as a weapon for its annihilation.” See also EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, [11] at 310.  Moreover, although many democratic countries recognize pacifism as a cause for military service exemption, many of them require that the pacifists perform national service and impose various sanctions if they refuse to do so. See Evans, [21] at 170.  

 

12.  The question at hand arises against this normative background.  This question involves striking the proper balance between these aforementioned interests, where the request for exemption from service does not involve a general objection to bearing arms and fighting in war, whatever its cause—but an objection to a specific war or military operation. The question concerns the law regarding selective objection.  We presume that the selective objector acts, as does his colleague the “full” objector, out of conscientious motives.  Our fundamental point of departure is that the selective objector’s refusal to serve in a particular war is based on true conscientious reasons, just as is the case with the “full” objector.  Of course, this factual presumption raises evidential difficulties.  However, in those situations where these problems may be overcome, and there is no reason to presume that they are impossible to overcome, we come face to face with the fundamental issue of the status of the selective conscientious objector.

 

13.  This issue is not unique to us.  It has arisen in modern democratic states, and has been resolved in various ways.  Most of the democratic states that recognize military service exemptions due to “full” conscientious objection do not acknowledge selective conscientious objection as a cause for exemption. For example, United States federal law recognizes exemption for those who object to participating “in war in any form.” See the Military Selective Service Act of 1967, § 456(j), codified at 50 U.S.C. App. § 456(j) (2002).  The United States Supreme Court has held that this provision, which denies selective objectors military exemptions, is constitutional. Gillette v. United States, 401 U.S. 437 (1971).  Germany and France have also adopted this position.  Nevertheless, there are some democratic states which do grant exemptions to selective objectors.  This is the case in Holland. See Ben. P. Vermeulen, Conscientious Objection in Dutch Law, in Conscientious Objection in the EC Countries, [19] at 276. A similar approach has been taken by Australia, where section 61A(i) of the Defense Act of 1903, after its 1992 amendment, specifies that military service exemptions are granted to “persons whose conscientious beliefs do not allow them to participate in a particular war or particular warlike operations.”  Aside from these two positions are other states, such as Spain, which have not yet come to a decision in this matter.  What is the law in Israel?

 

14.  This question arose in HCJ 470/80 Algazi v. Minister of Defense (unreported case) [12].  The petitioner was in the army and requested not to serve in the area.  The petition was denied.  Justices M. Bejski and S. Levin noted in their judgment:        

 

No military system can accept the existence of a general principle which allows any soldiers to dictate where they will serve, whether for economic, social, or conscientious reasons.

 

This problem also arose in the case of Shane [4]. There, a soldier had refused to fulfill a reserve order which required him to serve in South Lebanon.  He claimed that according to his “conscientious outlook, the IDF’s presence in Lebanon is illegal and is not in accord with any fundamental justification of military activity.” The court held that this argument was invalid.  Justice M. Elon wrote:

 

This is a case of a draft objection, which is based on ideological-political reasons not to fight in a particular location.  Recognizing such an objection damages the operation of Israel’s democratic system of decision-making, and leads to discrimination in military drafting.  Such selective objection is not even recognized in those states which acknowledge the right to general objection as a cause for exemption from military service.  A fortiori, the right to selective objection should not be recognized in the Israeli legal system, which does not see draft objection as excusing a male of military age from military service. It would be proper to add an additional comment. This important, complicated issue of balancing the law against the freedom of conscience—of balancing, on the one hand, the need to maintain military service to protect the sovereignty of the State and the safety of its residents against, on the other hand, the objection to participate in war for personal conscientious reasons—must take the particular circumstances of time and location into account.  The severe state of security in Israel should not be compared to the state of security in other countries, which dwell within secure borders.  This essential difference is a substantial and significant factor.

 

[4] at 402-03. This position was adopted in yet another case. See HCJ 630/89 Machnes v. The Chief of Staff (unreported case) [13].  In the petition here we have been asked, for two reasons, to depart from this ruling—it having been mistaken when it was originally handed down and, furthermore, because it does not comply with the Basic Law: Human Dignity and Liberty, which was passed since that decision was handed down, and which establishes the constitutional status of the freedom of conscience.

 

15.  We do not think that there is room to deviate from the decisions of the Court regarding selective conscientious objection.  As we have seen, granting an exemption from military service due to conscientious objection is in the discretion of the Minister of Defense.  This discretion is based on a delicate balance between conflicting considerations.  In striking this balance, the Minister of Defense came to the conclusion that there is room to grant exemptions from military service in cases of “full” objection.  This balance does not necessarily require that a similar exemption should be granted in the case of selective conscientious objection.  We are willing to presume—without ruling in the matter— that considerations of freedom of conscience, personal development and tolerance, which are taken into account regarding the exemption for military service in the case of “full” conscientious objection, should similarly be taken into account regarding exemptions due to selective conscientious objection.  This presumption is not self-evident.  Yet, we are willing to accept this presumption for the purpose of this petition.  There is a certain power to the argument that, from the point of view of the individual himself who claims conscientious objection—and assuming that we believe his objection is conscientious and not political or social—there is no essential difference between “full” conscientious objection and selective conscientious objection. 

 

Petitioner number one expressed this well when responding to the charges against him for refusing to fulfill his reserve service in the area:

 

In my opinion it is comparable to giving a religious person non-kosher food.

 

If we believe this—and it was not argued before us that the petitioner’s argument is a cover for considerations which are not conscientious—then apparently there is no essential difference, from the perspective of the conscience of the objector, between “full” objection and selective objection.  Hence, we are willing to presume—again, without ruling on the matter—that, on our metaphorical scales, the side bearing conscience, personal development and tolerance justifies granting exemptions from military service not only to the “full” conscience objector, but also to the selective conscientious objector.  How shall we regard the other side of those metaphoric scales? What is the proper balance between the conflicting considerations?  Is there a difference between the “full” conscientious objector and the selective conscientious objector regarding this “other hand”?  We think there is a difference.

 

16.  In our opinion, refusal to serve in the army for “full” conscientious reasons is not similar to refusal to serve in army for selective conscientious reasons.  Indeed, the weight of the side which leans towards recognizing conscientious objection is much heavier in the case of selective conscientious objection then in “full” conscientious objection.  However, the severe problem of granting an exemption from fulfilling a duty, a duty that is imposed on all, is apparent.  The phenomenon of selective conscientious objection would be broader than “full” objection, and would evoke an intense feeling of discrimination “between blood and blood.”  Moreover, it would affect security considerations themselves, since a group of selective objectors would tend to increase in size.  Additionally, in a pluralistic society such as ours, recognizing selective conscientious objection may loosen the ties which hold us together as a nation.  Yesterday, the objection was against serving in South Lebanon.  Today, the objection is against serving in Judea and Samaria.  Tomorrow, the objection will against vacating this or that settlement.  The army of the nation may turn into an army of different groups comprised of various units, to each of which it would be conscientiously acceptable to serve in certain areas, whereas it would be conscientiously unacceptable to serve in others.  In a polarized society such as ours, this consideration weighs heavily.  Furthermore, it becomes difficult to distinguish between one who claims conscientious objection in good faith and one who, in actuality, objects to the policy of the government or the Knesset. It is a fine distinction—occasionally an exceedingly fine distinction—between objecting to a state policy and between conscientious objection to carrying out that policy.  The ability to manage an administrative system which will act impartially is especially complicated in selective conscientious objection. See Walzer, [22] at 143.  Justice Marshall correctly noted in Gillette, [16] at 456:

 

[T]here is considerable force in the Governments contention that a program of excusing objectors to particular wars may be impossible to conduct with any hope of reaching fair and consistent results.

 

17.  As such, selective conscientious objection requires striking a separate balance.  This balance can not be derived from the balance struck in the case of “full” conscientious objection.  What is the necessary balance in the case of selective objection?  We need not analyze all aspects of this issue.  We are willing to presume—again, without ruling in the matter—that the State may cause harm to the conscience of the conscientious objector (whether selective or “full”) only where substantial harm would otherwise almost certainly be caused to the public interest. Compare Temple Mount Faithful Movement, [5] at 454; HCJ 87, 73/53 Kol Ha’am v. Minister of Interior, [14] at 882; HCJ 953/89 Indor v. Mayor of Jerusalem, [15] at 689-91.  The Minister of Defense decided that in contemporary Israel, both in light of its inner conflicts and in light of current events, exemptions from military service will not be granted to selective conscientious objectors.  It is our opinion that, even by the strict standard enunciated above, the balance struck by the Minister of Defense is a balance which a reasonable defense minister, acting reasonably, would have been permitted to strike. 

 

For these reasons, the petition is denied.

 

 Justice D. Beinisch

 

I agree with the judgment and reasoning of my colleague, the President.  I find it necessary to emphasize that I too am of the opinion that, in the current situation—where Israeli society is split and polarized, and includes groups and persons who, due to their strong moral conscience and belief in the truth of their ways—it becomes difficult to identify legitimate selective conscientious objection.

Many among us desire to set the limits of obedience according to their own beliefs and consciences, and even according to their own political perspectives.  The distinction between selective conscientious objection and one’s political worldview is in fact, as the President has stated, “fine—and occasionally exceedingly fine.”  Political conflicts in Israeli society agitate its most sensitive nerves. Israeli society is characterized by its intense ideological conflicts, including conflicts based on reasons of conscience and reasons of religious faith.  These conflicts are generally legitimate in an open and pluralistic society.  Society can withstand such conflicts when they are played out in a democratic arena.

 

Even if they are sincere, conscientious and faith-based considerations do not stand alone.  Against them stand considerations of preserving the security and peace of Israeli society.  Since its establishment, the State of Israel has been in a situation that requires military action.  This has always been the position of the Israeli government regarding national security. Petitioners themselves served in fighter units and participated in military activities.  Their current objection is to serving in the area, which is held by the IDF.  This is in objection to the steps being taken there during the military actions against terrorism.  The questions which arose as a result of the war against terrorism are at the heart of an intense political conflict.  If this conflict is conducted within the army it may substantially harm the army.

 

According to the Basic Law: The Military, the army is under the authority of the government.  The Minister of Defense is the government official responsible for the army.  The government is responsible for national security, and the minister acts on its behalf.  According to the Defense Service Law, the Minister of Defense has broad discretion in granting exemptions from military service, including those granted for conscientious reasons.  Therefore, I concur with the Presidents opinion that the decision to attribute the decisive weight to security needs—due to the tangible fear that recognizing selective objection will damage the framework of the military—stands up to judicial review and does not establish a cause for our intervention.

 

   Justice A. Procaccia

 

I concur with the President’s judgment and Justice Beinisch’s comments.

 

Petition Denied

December 30, 2002

 

 

 

TRANSLATED BY:              Leora Dahan

EDITED BY:                          Eli Greenbaum

 

Comments, questions and suggestions are all welcomed, and may be directed towards elig@supreme.court.gov.il