Courts

 

CrimA 111A/99

Arnold Schwartz

v.

State of Israel

 

The Supreme Court Sitting as the Court of Criminal Appeal

[June 7^th, 2000]

Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, Y. Kedmi, T. Strasberg-Cohen, D. Dorner, D. Beinisch

 

Application to the Supreme Court sitting as the Court of Criminal Appeals for the stay of the execution of a sentence.

 

Facts: The applicant was convicted in the District Court in Tel-Aviv-Jaffa of two offenses: the commission of rape under section 345(A)(1) of the Penal Law 5737-1977 and the commission of sodomy, an offense under section 347(A) of the Penal Law.  The applicant was sentenced to four years in prison, of which three years were of actual imprisonment and one year was on probation.  In addition the court ordered the applicant to compensate the complainant in the amount of NIS 10,000.  At the time the conviction was handed down, at the request of the applicant’s counsel, the District Court stayed the date of commencement of the applicant’s sentence by one month.  The application was brought before Justice Zamir who determined that execution of the prison sentence imposed would be stayed until a further decision was made on the application.  Justice Zamir transferred the application to the President of the Court for a decision as to whether it would be appropriate to transfer the application to a decision before an extended panel of Justices, and the President of the Court ordered consideration of the application before an extended panel of nine justices.

 

Held: The Court held that it would be appropriate to delineate standards for applications to stay execution of prison sentences of persons who have been convicted and sentenced to a prison term and whose appeal is pending.  The Court detailed those standards and considerations and held that while in the specific circumstances of the present case those standards dictate that the execution of the prison sentence should likely not have been stayed, nonetheless, due to the fact that the applicant has been free on bail for a long period of time since the sentence was handed down, and in consideration of the date that had been set for hearing the appeal, the Court did not in fact order the immediate imprisonment of the applicant. 

The Court also considered, in a preliminary discussion, the application of the Public Defender’s Office to participate in the proceeding as a “friend of the court.”  The Court held that the joining of the Public Defender as a “friend of the court” was to be allowed in this case.

Justice Kedmi agreed with the final outcome of the judgment but added qualifying comments.  In addition, Justice Kedmi disagreed with the holding that allowed the Public Defender to be joined as a “friend of the court.”

 

 

Legislation cited:

Penal Law 5737-1977, ss. 43, 44, 87, 87(a), 87(c), 345(a)(1), 347(a), ch. 6, sections B, H.

Basic Law: Human Dignity and Liberty, ss. 5, 10.

Basic Law: the Judiciary, s. 17.

Criminal Procedure (Enforcement Powers – Arrests) Law 5756-1996, ss. 21(a)(1)(c), 44.

Bail Ordinance 1944. 

Criminal Procedure Law 5725-1965.

 

Draft legislation cited:

Amendment to Penal Law (Methods of Punishment) Draft Proposal Hatzaot Hok no. 522.

               

Israeli Supreme Court cases cited:

[1]     RA 7929/96 Kozali and Others v. State of Israel (not yet reported).

[2]     CrimA 608/81 Benyamin Ben Maier Suissa v. State of Israel IsrSC 37(1) 477

[3]     FH 16/85 Harrari v. State of Israel, IsrSC 40(3) 449.

[4]     CrimA 757/85 State of Israel v. Harnoi IsrSC 39(4) 292.

[5]     CrimA 1100/91 State of Israel v. Jeffrey IsrSC 47(1)418.

[6]     MAppCrim 2161/92 Fadida v. State of Israel (unreported).

[7]     MApp 123/76 Ikviah v. State of Israel IsrSC 30(3) 223.

[8]     MA 24/55 Shlomo Porat (Perlberg) v. Attorney General of Israel IsrSC 9 673.

[9]     MApp 2/52 Locksner v. Israel Attorney General IsrSC 1(1) 169.

[10] Mot 118/79 Richtman v. State of Israel IsrSC 33(2) 45.

[11] Mot 156/79 Kobo v. State of Israel IsrSC 33(2) 63.

[12] Mot 132/81 Pitusi v. State of Israel IsrSC 35(2) 817.

[13] MApp 430/82  Michalshwilli v. State of Israel IsrSC 36(3) 106.

[14] MApp 10/62 Cohen v.  Attorney General IsrSC 17 534.

[15] MApp 183/80 Sharabi v. State of Israel IsrSC 34(4) 517.

[16] Mot 52/50 Maatari v. Attorney General of Israel IsrSC 4 414.

[17] MAppCrim 166/87 State of Israel v. Azran and Others, IsrSC 41(2).

[18] MAppCrim 2599/94 Danino v. the State of Israel (unreported).

[19] CrimA 8549/99 Ben Harosh v. State of Israel (unreported).

[20] CrimA 3695/99 Abu Keif v. State of Israel (unreported).

[21] CrimA 4263/98 Luabna v. State of Israel (unreported).

[22] CrimA 3594/98 Ploni (John Doe) v. State of Israel (unreported).

[23] CrimA 1050/98 Siamo v. State of Israel (unreported).

[24] MAppCrim 6877/93 Ploni (John Doe) v. State of Israel (unreported).

[25] MApp 28/88 Sussan v. State of Israel (unreported).

[26] MAppCr 4331/96 ElMakais v. State of Israel IsrSC 50(3) 635.

[27] MAppCr 5719/93 Forman v. State of Israel (unreported).

[28] MAppCr 6689/94 Attias and others v. State of Israel (unreported).

[29] MAppCr 8574/96 Mercado v. State of Israel (unreported).

[30] MAppCr 8621/96 Kuzinski v. State of Israel (unreported).

[31] MAppCr 4590/98 Sharabi v. State of Israel (unreported).

1. CrimA 7068/98 Hachami v. State of Israel (unreported).

[33] CrimA 9/55 Yegulnitzer v. State of Israel IsrSC 9 891.

[34] CrimA 125/74 Merom, Corporation of International Commerce, Ltd. and others v. State of Israel IsrSC 30(1) 57, at p. 75).

[35] MAppCr 3360/91 Abu Ras and others v. State of Israel (unreported).

[36] CrimA 7282/98 Uda v. State of Israel (unreported).

[37] HCJ 6055/95 Sagi Zemach and others v. Minister of Defense and Others (not yet reported).

[38] HCJ 87/85 Argov and others v. Commander of the IDF Forces for Judea and Samaria, IsrSC 42(1) 353.

[39] HCJ 1520/94 Shalem v. Labour Court and others, IsrSC 58(3) 227.

[40] MAppCr 2708/95 Spiegel and others v. State of Israel IsrSC 59(3) 221.

[41] LCA 5587/97 Israel Attorney General v. Ploni (John Doe) IsrSC 51(4) 830.

[42] MApp 15/86 State of Israel v. Tzur, IsrSC 40(1) 706.

[43] MAppCr 537/95 Genimat v. State of Israel IsrSC 49(3) 335.

[44] HCJ 1715/97 the Office of Investment Managers in Israel and others v. Ministry of Finance and others, IsrSC 51(4) 367.

[45] MAppCr 3590/95 Katrieli v. State of Israel (unreported).

[46] MAppCr 37171/91 State of Israel v. Golden IsrSC 45(4)807.

[47] MAppCr 4092/94 Tioto v. State of Israel (unreported).

[48] CrimA 6579/98 Friedan v. State of Israel (unreported).

[49] CrimA 3602/99 Ploni (John Doe) v. State of Israel (unreported).

[50] CrimA 3976/99 Ephraimov v. State of Israel (unreported).

 

American cases cited:

[51] U.S. v. Miller 753 F.2d 19 (1985).

[52] McKane v. Durston 153 U.S. 684 (1894).

[53] Jones v. Barnes 463 U.S. 745 (1983).

 

Canadian cases cited:

1. R v. Demyen (1975) 26 C.C.C, 2d 324, 326.
2. R v. Pabani (1991) 10 C.R., 4th. 381.
3. Mcauley v. R (1997) Ont. C.A. Lexis 3.
4. Baltovich v. R (1992) Ont. C.A. Lexis 257.
5. R v. Parson (1994) 30 C.R. 4th 169.
6. R. v. Farinacci (1993) 86 C.C.C. 32.
7. Cunningham v. Canada (1993) 80 C.C.C 492.
8. Miller v. The Queen (1985) 23 C.C.C 99.
9. R v. Branco (1993) 87 C.C.C 71.

 

Israeli books cited:

1. S. Levin The Law of Civil Procedure – Introduction and Basic Principles (5759-1999)

 

Israeli articles cited:

1. S. Levin ‘Basic Law: Human Dignity and Freedom and Civil Legal Processes,’ Hapraklit 52 (1986) 451.
2. Bendor, ‘Criminal Procedure and Law of Evidence: Development of Individual Human Rights in Procedural Criminal Law,’ The Annual Book for Law in Israel (Tel-Aviv, 1986) 481.

 

Foreign books cited:

1. R. Pattenden English Criminal Appeals 1844-1994 (Oxford, 1996).
2. Stuart Charter Justice In Canadian Criminal Law (Scarborough, 2nd ed., 1996).
3. W.R. LaFave, J.H. Israel Criminal Procedure (St. Paul, 2nd ed., 1992).
4. P.W. Hogg Constitutional Law of Canada (Scarborough, 4th ed., 1997).

 

Foreign articles cited:

1. M. Damaska “Structures of Authority and Comparative Criminal Procedure” 84 Yale L.J. (1974-1975) 480.
2. D.L. Leibowitz “Release Pending Appeal: A Narrow Definition of ‘Substantial Question’ under the Bail Reform Act of 1984” 54 Fordham L. Rev. (1985-1986) 1081.
3. M.M. Arkin “Rethinking The Constitutional Right To a Criminal Appeal” 39 UCLA L. Rev. (1991-1992) 503.
4. A.S. Ellerson “The Right To Appeal And Appellate Procedural Reform” 91 Colum. L. Rev. (1991) 373.
5. D. Gibson “The Crumbling Pyramid: Constitutional Appeal Rights in Canada” 38 U.N.B. L.J (1989) 1.
6. T.W. Cushing “Raising a ‘Substantial Question’: The Key to Unlocking the Door Under the 1984 Bail Reform Act” 62 Notre Dame L. Rev. (1986) 192.

 

Other:

1. 8A Am. Jur. 2d (Rochester and San Francisco, 1997).

 

 

 

For the Applicant—D. Ronen

For the State —N. Ben-Or, A. Shaham

For the Public Defender-K. Mann, D. Pinto, D. Ohana, R. Yitzhaki

 

JUDGMENT

Justice D. Beinisch

By what standards will an application to stay execution of a prison sentence of a person who has been convicted and whose appeal is pending be considered?  That is the issue brought before us in this application.

The facts in the background of the fundamental discussion before us are as follows:

1.  The applicant was convicted in the District Court in Tel-Aviv-Jaffa of the offense of rape under section 345(A)(1) of the Penal Law 5737-1977 (hereinafter: “the Penal Law”) and for committing sodomy, an offense under section 347(A) of the Penal Law.  Following his conviction, the applicant was sentenced to four years in prison, including three years of actual imprisonment and one year on probation.  The court also ordered the applicant to compensate the complainant in the amount of NIS 10,000.  At the time the conviction was handed down the District Court granted the application of the applicant’s counsel and stayed the date of commencement of the sentence by one month.

2.  The applicant appealed the decision to this court.  At the time of the filing of the appeal, his counsel submitted the application before us to stay execution of the sentence imposed on him (hereinafter: “application for stay of execution”).  On 1.21.99 Justice Zamir determined, after hearing the parties’ arguments, that execution of the prison sentence imposed on the applicant would be stayed until a further decision was made on the application.  Justice Zamir noted in his decision that in accordance with the accepted policy of this court as to applications for stay of execution “it is doubtful that it is appropriate, in this case, to stay the commencement of the prison term.”

However, the judge decided that it would be appropriate for the application before him to be transferred to the President of the Court for a decision as to whether it would be appropriate to transfer the application to a decision before a panel.  Justice Zamir explained his decision as follows:

“Lately thought has been given to the accepted policy of this court regarding applications for stay of the execution of imprisonment until the disposition of the appeal.  Various approaches have been expressed by judges in the case law. (See, for example, HCJ 3501/98 Dekel v. State of Israel; CrimA 7068/98 Hachami v. State of Israel).  The doubt as to the accepted policy of the court in this matter has drawn in part from the Basic Law: Human Dignity and Liberty; and in part from the customary practice in certain countries.

It appears to me that it is not appropriate to go on with the present situation, in which each justice considering applications for stay of execution makes a decision according to his world view, and the time has come for this court develop a policy that will be able to guide every judge considering such applications.”

In light of this decision, the President of the Court ordered consideration of the application before an extended panel of nine justices.

3. Before turning to the examination of the substance of the issue which has arisen before us, we must give thought to the preliminary issue that has come up during the course of the consideration of the case, which is the issue of the status of the Public Defender in the framework of the proceedings in this court.   After the application was brought for consideration before an expanded panel, the Public Defender submitted an application before the court entitled “application to submit a written brief as a friend of the court.”  The applicant’s counsel consented to the application and the State opposed it.  On 5.19.99, after hearing the parties’ arguments on the matter, we determined that we would grant the application in such a manner that the Public Defender would be allowed to submit a brief.  We further determined that “the decision whether to affirm the argument itself as well as the decision as to the status of the Public Defender in this case – would be considered by the panel in the judgment.”

The issue of recognition of the institution of “friend of the court” in our legal system in general, and the status of the Public Defender as “friend of the court” in particular, was considered in the judgment of President Barak in RA 7929/96 Kozali and others v. the State of Israel [1].  In his decision on this matter the President distinguished between the question of the authority of the court to order the joinder of a person or entity to a proceeding before it with the status of “friend of the court,” and the question of the discretion the court is to exercise when making the decision on an application to join such a party or person.  In accordance with that decision, the authority to join exists, in principle, and the court must examine in each and every individual case – according to its circumstances – whether it is to be exercised, in consideration of the totality of considerations relevant to the matter.  Such consideration relates primarily to the degree of potential contribution which is entailed in the requested joinder against the concern that such joinder would do damage to the efficiency of the discussion, to the parties and to their rights:

“One must stand guard in this matter and ensure that indeed there is in the joinder of another party to the proceeding a contribution to be made to the discussion itself and the public interest.  One is to examine in each and every case, whether such joinder does not cause damage to the efficiency of the deliberation, to the parties to the dispute and to their basic rights…  Indeed before a party or a person is given the right to express his position in a proceeding to which he is not an original party, the potential contribution of the proposed position is to be examined.  The essence of the applying entity is to be examined.  Its expertise, experience and the representation it affords the interest in whose name it seeks to join the proceeding.  The type of proceeding and its procedure is to be examined.  The parties to the proceeding itself are to be ascertained as well as the stage at which the joinder application was submitted.  One is to be aware of the essence of the issue to be decided.  All these are not comprehensive criteria.  There is not enough in them to determine in advance when it will be appropriate by law to join a party to the proceeding as a “friend of the court,” and when not.  At the same time these criteria must be weighed, inter alia, before such joinder is to be decided upon.” (Ibid. paragraph 45)

The issue that arises before us is a question of general importance in the realm of criminal procedure: it arises and is discussed as a matter of course before courts, and by its nature it is relevant to a broad public of accused persons.  Our discussion of the matter does not primarily focus on the concrete facts of the case, but the fundamental question which arises, inter alia, against the background of lack of uniformity in the law in practice.  In discussion of this type, the Public Defender, whose function by law is the representation of accused persons in criminal proceedings, has a clear interest.  In consideration of the expertise and the experience of the Public Defender in the representation of accused persons, their joinder to the proceedings before us may contribute to the deepening of the discussion and its clarification.  On the other hand, joinder of the Public Defender, at the phase in which the joinder application was submitted, will not burden the administration of the proceedings significantly, as it is merely an interlocutory proceeding in the framework of a pending appeals case.  Taking these considerations into account, we felt that the joinder of the Public Defender to the proceedings before us as “friend of the court” was to be allowed.

Claims of the Parties

4.  In detailed and thorough arguments, the parties laid out before us a broad picture, and supported each of their respective arguments with multiple references.  The sum of the argument of the applicant, joined by the Public Defender, is that the accepted approach in our case law as to the stay of execution of a prison term of a convicted person whose appeal is pending (which we will discuss later at length), is not appropriate and requires renewed examination and change.  According to the applicant’s claim, the law has no provision as to the immediate execution of the prison sentence, but rather the legislature left determination of the commencement of the execution of the prison term to the discretion of the court.  This argument relies on s. 44 of the Penal Law, which establishes that a court that imposes a prison term “may order that the sentence commence from the date it shall determine.”  As to the discretion given to the court to determine the date of commencement of the prison term, counsel for the applicant argues that the court is to adopt a “broadening” policy as relates to applications that deal with stay of execution during the pendency of the convicted person’s appeal on the judgment, in a manner that except for exceptional circumstances – which fall within the grounds for detention pending completion of the proceedings – the execution of the prison sentence will be delayed until the disposition of the appeal.  The applicant’s counsel rests his argument primarily on the status of the right of appeal, whether as a constitutional basic right or whether as a right of recognized central importance in our legal system, and on the presumption that immediate execution of a prison sentence, may, as a rule, harm effective realization of the right of appeal.

The Public Defender claims that the law practiced in Israel today in the matter of stay of execution of prison sentences during the pendency of an appeal is not clear cut; alongside judicial approaches which emphasize the immediate execution of the sentence as a board rule, and the stay of its execution as only an exception, there are to be found in the case law of this court – particularly in recent years – other approaches as well, which tend to broaden the range of cases in which the execution of the prison sentence will be stayed while the convicted person’s appeal is pending.  Thus, argues the Public Defender, even when the judicial rhetoric is seemingly strict in relation to the possibility of stay of an appeal, the application of the rules, in fact, tends to be lenient with applicants for stay of execution of prison sentences during the pendency of the appeal.  It is the argument of the Public Defender, in light of the murkiness as to the law that applies in the matter of stay of execution of prison terms during the pendency of the appeal, that it is appropriate to re-examine the issue.  In the framework of this examination, the Public Defender claims, central weight is to be given to concerns of irreversible harm to human liberty if after the imprisonment of the convicted person it turns out after the fact – once the appeal is heard –that the imprisonment was partially or entirely unjustified.  Thus, the Public Defender claims that the right of appeal as part of due process, is derived from the right to dignity and liberty and as such is a protected constitutional right in the provisions of the Basic Law: Human Dignity and Liberty.  According to the approach of the Public Defender in the framework of the proper balancing between the basic rights of the convicted person and the public interest in immediate enforcement of the judgment, the court, as a rule is to grant applications to stay execution of prison terms until the disposition of the appeal, with the exception of exceptional cases in which there is a reasonable risk of flight of the convicted person from the law, or that the convicted person poses a risk to public safety, or that particularly severe damage to public confidence in the enforcement system is expected.

The State seeks to rebut the arguments of the appellant and the Public Defender.  The starting point of the argument the State brought before us is that it is the directive of the legislature that a prison term is to be executed immediately upon sentencing.  The State learns this from the provision of section 43 of the Penal Law, according to which one who is sentenced to prison will have his prison term calculated from the date of sentencing, unless the court orders otherwise.  Alongside the rule of immediate execution, the legislature granted the court discretion to stay the execution of the sentence to another date, as per section 87(a) of the Penal Law.  The State argues that  the law followed by this court in the matter of stays of execution is stable and clear, and properly balances the various interests involved in the matter, and it is not proper to deviate from it.  According to the State’s approach, the Basic Law: Human Dignity and Liberty has no impact on the matter before us; it is a matter of existing legislation, which is not subject to constitutional review but merely interpretive influence.  Even as to this last issue, there is nothing in the Basic Law  which changes the accepted law followed by this court, according to which execution of the prison sentence will be stayed only in exceptional circumstances; the sum of the argument is that after the conviction of a person criminally, and his sentencing to prison, he no longer benefits from the presumption of innocence and he no longer enjoys the right to freedom from imprisonment.  His liberty has been denied by the judgment of an authorized court which sentenced him, and the question of stay of execution of a prison sentence no longer involves violation of personal liberty which is protected by the Basic Law.  To base this claim the State refers us to the approach of the American and Canadian Law in this matter.  Alternatively, the State claims, that even if the convicted person has the right to liberty which may be violated pursuant to consideration of the stay of the execution of his sentence, then the law that has come forth from this court, as to stay of execution of a prison sentence during the pendency of the appeal, fulfills the constitutional balancing required by the Basic Law.

The   Normative Framework

5. The practice of the law in the matter of the stay of execution of a prison sentence during the pendency of the appeal has developed in the case law of this court from its earliest days.  Tracing the developments in the case law reveals that from the beginning the law developed against the background of what was customary in British common law and this was applied in our system even before the relevant statutes in this matter were legislated, some of them directly, others indirectly.  Eventually, the case law based the law in practice on the construction of the legislated provisions.  Thus it was established that the rule is that a prison term is to be executed immediately and execution of a prison term is not stayed except “in extraordinary circumstances” or if there exist special circumstances which justify the stay.  This rule is anchored in the basic principle of our system, according to which the law is determined at the trial level, in which oral evidence is heard, and in which the facts are determined based on impressions of witnesses.  The level of proof required in a criminal proceeding is high – proof beyond a reasonable doubt – and with the conclusion of the proceeding, once it has been determined that guilt has been proven beyond a reasonable doubt, the convicted person is denied the presumption of innocence.  So too, in our system – unlike the continental system which views the consideration at the trial level and the appeals level as one unit – the appeal is not part of the criminal proceeding; the appeal is an additional proceeding, limited in its scope from the first proceeding since as a rule evidence is not heard during it, and it is a review proceeding.  As background, it must be remembered, that in common law countries, from where we have drawn the fundamentals of our system, determining guilt based on the facts is left to a jury which makes the determination in the trial court.  It appears that this legal structure, according to which one must separate the trial level from the appeals level, has influenced the development of the rule according to which upon the conclusion of the proceeding at the trial level expression is to be given to the punitive result dictated by the conviction.

Relevant Statutory Provisions

6. A number of statutory provisions relate to the matter before us.  Since we are dealing with the execution of a sentence that was imposed on a person after their criminal conviction, we will turn first to Chapter 6 of the Penal Law entitled “Modes of Punishment.”  In Title B of Chapter 6 above,  entitled – “Imprisonment,” there are two provisions relevant to our discussion – section 43 and section 44.  We will bring these provisions verbatim:

 

“Calculation of the Prison Term	43.	One who is sentenced to prison his prison term will be calculated from the day of the sentence, unless the court has ordered otherwise: if the convicted person was free on bail after the sentence, the days he was free will not be counted as part of the period of the sentence.
Postponed Imprisonment	44.	If the court imposes a prison sentence, it may order that the sentence commence from the date it shall determine.”

 

An additional provision which applies in our matter is found in section 8 of chapter 6 above, in section 87 of the statute:

 

“Postponement of Dates.	87	(a)  If a date is established for the execution of a sentence, in one of the sections of this chapter or by the court according to it, the court is permitted to stay the execution to another date.
		(b)  If the execution of the sentence was stayed according to subsection (a), the court may stay it an additional time for special reasons which will be recorded.
		(c)  The court staying the execution of a sentence according to this section may condition the stay on bail or other conditions as it sees fit; the provisions of sections 38 to 40 and 44 of the Criminal Procedure Law, 5725-1967 will apply to bail according to this section with the necessary changes.
		(d)  The court’s decision in accordance with this section is subject to appeal.”

As detailed above, each of the parties before us relied in their arguments on a different one of the three said provisions and regarded it as the relevant legislated framework for determining the date of execution of the prison term.  The state’s construction of section 43 of the Penal Law, according to which, as a rule, and lacking any other determination by the court, the commencement of the prison term begins with the sentencing, is consistent with the construction of said section in the case law.  Thus for example, Justice Shamgar has said regarding the construction of section 43 to the Penal Law, during discussion of a matter different than the one before us (in that matter the elements of the offense of escape from lawful custody were under consideration):

“The origin of the status of  “in custody” is a result of the integration of two significances attached to the sentence that is read to the convicted person: one, and this is the legal one, stems from the provisions of section 43 of the Penal Law, according to which: ‘one who is sentenced to prison his prison term will be calculated from the day of the sentence, unless the court has ordered otherwise…’ 

Meaning, the prison sentence begins to run from the date of the sentence, unless the court has ordered otherwise. . .    According to the simple words and the clear intent of the legislature, the broad rule is that, the prison term begins with the notice of the decision of the judicial authority.”

(CrimA 608/81 Benyamin Ben Maier Suissa v. State of Israel [2], at pp. 492-493.  Emphasis added – D.B.).

 

Similar things were stated by Justice Shamgar in FH 16/85 Harrari v. State of Israel [3] during consideration of the question of when the period of probation begins to be counted when extended by the court.

“The guiding rule which arises from the penal law is that, the commencement and the application of the sentence are from the date of the sentence, and that is, if the court has not ordered otherwise.  This is the provision of section 43 of the Penal Law that one who is sentenced to prison, his prison term will be calculated from the date of the sentence, unless the court has ordered otherwise.  The court may order a postponed sentence (section 44 or section 87 of the law above).”

(Ibid. at p. 454 emphasis added – D.B.)

7.  From the above, therefore, one may glean that, as a rule, the date of execution of a prison sentence imposed by the court is immediately upon the imposition of the sentence, unless the court has ordered otherwise.   

Alongside this rule, the legislature determined that the court may stay the date of   commencement of the prison sentence until a date other then the date of the imposition of the sentence.  To this end, all three statutory provisions that were quoted above are relevant.  The discretion given to the court to stay the date of execution of the sentence is learned from the language of section 43 itself (“unless the court has otherwise ordered”).   A separate determination as to this matter is found in section 44 of the Penal Law which is entitled “postponed imprisonment.”  It appears that according to the accepted  construction  of section 43 of the law, there is a certain overlap between the ending of section 43 and section 44.  (And indeed this was the approach of Justice Shamgar in CrimA 757/85 State of Israel v. Harnoi [4]:

“To a certain extent section 44 is no more than a more explicit statement of what was already implied from the determination in section 43. . .” )  As to section 87 of the Penal Law, its application is different from that of sections 43 and 44 at least in two primary areas.  First, section 87 deals with stay of the date of execution of a ‘sentence,’ not necessarily a prison sentence.  Second, section 87 enables the court to order the stay of execution of a sentence it handed down, even at a date after the date of sentencing.  (For the background to the legislation of this section see: CrimA 1100/91 State of Israel v. Jeffrey [5]).

To the statutory provisions mentioned above one must add an additional statutory provision which is also relevant to the matter of stay of execution of a prison term during the pendency of the appeal, and that is the directive established in section 44 of the Criminal Procedure (Enforcement Powers – Arrests) Law 5756-1996 (Hereinafter: “the Arrests Law”).  Section 44 above establishes the following:

“Release on Bail by the Court	44	(a)  A suspect who has not yet had an indictment filed against him, an accused or convicted person whose appeal is pending on his judgment and is under arrest or in prison, the court may, upon his application, order his release on bail or without bail.
		(b)  The court may order the accused or convicted  person, whose appeal is pending on his judgment, to post bail, even if it is not authorized to order his detention according to section 21 in order to ensure his appearance in court, and when it has done so, the accused or convicted person will be seen as one who was freed on bail.”

 

On the basis of the language of the section, it does not deal directly with the question of the date of commencement of the prison sentence.  But in fact it is directed at the same practical outcome that is likely to stem from stay of execution of the prison sentence according to sections 43, 44 and 87 of the Penal Law, which is that the convicted person remains free for the duration of  the period of the appeal subject to the conditions that were determined for his release (compare this with section 87 (C) of the Penal Law).  Therefore it has been decided, that the considerations that the court will weigh in an application for release of a convicted person on bail during the pendency of his appeal, will be identical to the considerations taken into account in an application to stay execution of a prison sentence until the disposition of the appeal (see MAppCrim 2161/92 Fadida v. State of Israel [6], stated by Justice Bach; and compare: MApp 123/76 Ikviah v. State of Israel [7].

With the exception of section 44 of the Arrests Law, there is nothing in the abovementioned sections of the law, in their language, which relates to the situation of stay of execution of a prison term specifically during the period of appeal, rather they are phrased in a broad manner without details as to  the grounds for the stay.  As a result of the multitude of sections in the law which relate to the matter, applications to stay the execution of prison terms for the pendency of the appeal are considered  by the appeals court in the framework of a number of procedural “tracks” whether as an application to stay execution according to section  87 of the Penal Law and its sections or whether as an application to be released on bail.  As stated above, the considerations that will be weighed by the Court in each of the above cases will generally be identical, although the issue of the relationship between the various “tracks” is not entirely clear.  It is interesting to note that in foreign legal systems, which we will discuss later, the issue which is the subject of our discussion is dealt with in sections of the law which deal with the release on bail during the pendency of the appeal of a person who was convicted and sentenced to prison, and in foreign literature and case law it is generally discussed under the title of “release on bail pending appeal.”  It is also to be noted that most of the initial decisions of the Supreme Court in which the accepted rules for stay of execution of the prison sentence were formulated were decided in applications to be freed on bail during the pendency of the appeal in accordance with the Bail Ordinance 1944 (which was cancelled in 1965 with legislation of the Criminal Procedure Law).  What is important for our purposes is that in not a single one of the law’s provisions which enable the court to stay or postpone the date of commencement of the prison sentence, did the legislature detail the considerations which will guide the court in its decision, including where an appeal on the conviction filed by the convicted person is at the foundation of the request to stay execution.  These considerations have been determined by the courts working within the framework of the authority given to them by the legislature, and we will turn to this now.

The Court Rulings in this Matter

8.  The construction that was given in the case law of this court  to legal provisions which give the court authority, with discretion, to stay the execution of the prison sentence or to release the convicted person on bail, during the pendency of appeal, was narrow.  The rule that was established was that a person who was convicted of a criminal offense, and who was sentenced to prison, would begin by serving his sentence immediately after the imposition of the sentence.  The rule that was established was that the cases in which execution of the prison term would be stayed  due to the filing of an appeal, would be “extraordinary” cases where “special circumstances” exist which justified it.  Among the many references for this approach (hereinafter for convenience we will call it – “the accepted approach”) we can bring the words of the Justice S.Z. Heshin in MA 24/55 Shlomo Porat (Perlberg) v. Attorney General of Israel [8].

“When the court comes to discuss the question whether it is appropriate to release on bail a person that has already been convicted but his appeal has not yet been heard, it is not entitled to ignore the determining fact that there is already a judgment against the applicant which sentenced him to prison, and only in extraordinary cases will the court or the judge hearing the application grant the request.”

(Ibid.).

(see also MApp 2/52 Locksner v. Israel Attorney General  [9]; Mot 118/79 Richtman v. State of Israel [10] at p. 47, 169; Mot 156/79 Kobo v. State of Israel [11] at p. 64; Mot 132/81 Pitusi v. State of Israel [12] at p. 819; 430/82 MApp Michalshwilli v. State of Israel [13] at  p. 107; This approach is similar to the English law in this matter see R. Pattenden, English Criminal Appeals 1844-1994 (Oxford, 1996) [66]112).

The primary reason mentioned in the case law for not staying the execution of a prison sentence during the pendency of the appeal is that with the conviction of the convicted person with the offense with which he is accused, the presumption of innocence from which he benefited until that time dissipates.  In the words of Justice Agranat:

“. . . the rule is, that prior to the conviction the person is presumed to be innocent, whereas after the conviction, the necessary presumption must be -- until it has been decided otherwise on appeal -- that he is guilty of the offenses of which he was convicted, and therefore a person will not be freed on bail at this stage, except under extraordinary circumstances.”

(MApp 10/62 Cohen v.  Attorney General [14] at p. 535).

In other decisions emphasis was placed on the existence of an authorized judicial decision which denies the convicted person's freedom, and which is valid and presumed to be legitimate as long as it has not been changed by the appeals court:

"It appears to me that in principle the determining element in this distinction (between the arrest of a person who has been convicted but not yet sentenced, and the stay of execution of a prison sentence that was imposed-- D. B.) is not  a suspect's innocence or conviction, but rather the phase at which he was convicted and sentenced, meaning the existence of a judicial decision as to denial of his liberty for the period of time detailed in the sentence.  The conviction in and of itself -- without a sentence of imprisonment -- does not constitute a "red line" between the two situations, and does not constitute but one consideration, although a weighty and serious one, in the totality of regular and accepted considerations in the consideration of the arrest of a person who has not yet been convicted."  (MApp 183/80 Sharabi v. State of Israel [15] at p. 519 emphases added -- D.  B.).

The case law mentions an additional reason for immediate execution of the sentence, except in extraordinary cases, and that is the threat of injury to public safety if the convicted person is freed during the period of appeal.  Justice Zemora discusses this in the first case in which the matter came up before this Court:

“The rule is: as to a person who was convicted and punished lawfully, public safety is to be preferred over the possibility that perhaps the convicted person will be acquitted in the appeal and it will turn out that an innocent person sat in prison.”  (Mot 52/50 Maatari v. Attorney General of Israel [16], at p. 416).

Alongside the concern for public safety the case law has recognized an additional public interest which is at the basis of the rule of immediate execution of a prison sentence, and that is the interest that is grounded  in effective enforcement of the criminal law and deterrence of potential offenders. (See MAppCrim 166/87 State of Israel v. Azran and Others [17]).

9.  As stated above, alongside the rule -- immediate execution of a prison sentence -- the case law has recognized exceptions which exist under those "special" or "extraordinary" circumstances in which it would be justified to stay the execution of the prison term despite the considerations that were detailed in previous case law.  These circumstances, in summary, are: when the conviction is for an offense that is not serious or where the circumstances of its commission are not serious; when the period of arrest which was imposed on the convicted person is short, relative to the time frame in which the appeal is expected to be heard, and there is a concern that until the determination of the appeal the convicted person will serve his entire punishment or a significant part of it; when there is a blatant possibility that the appellant will be successful in his appeal because of a manifest distortion on the face of the decision.  Justice Zamir summarized the accepted approach as to the stay of execution of a prison term as follows:

“the rule as to stay of the execution of a prison sentence was formulated some time ago, it was summarized clearly in Mot 156/79  Kobo v. State of Israel [11] and we still follow it.  The main points of the law, very briefly, are as follows:

A) The determining rule is that a person who has been sentenced to prison must begin serving his sentence immediately.  One does not stay execution of the prison sentence except "under extraordinary circumstances" or if there are "special circumstances" which justify a stay.

B) The special circumstances that are sufficient to justify a stay of execution are generally these: an offense that is not serious; a short prison term; a chance the appeal will be granted.  As to the chance that the appeal will be granted, it is necessary that in the convicting decision there is a clear distortion, or that there is a  pronounced  likelihood of success in the appeal.  To this end,  it is not necessary to examine in a detailed and concise manner the facts and reasoning on which the judgment is based.  It is necessary that the issue is apparent on the face of the decision.

Generally, the fact that the applicant was free on bail until his sentence was imposed, the fact that he does not constitute a serious risk to public safety, and that his family situation or business situation are difficult, are not sufficient to justify a stay of execution (MAppCrim 2599/94  Danino v. the State of Israel [18]).

This in fact has been the accepted law for many years, and justices in this Court follow it today as well (see for example, from among the many decisions, the following decisions: CrimA 8549/99 Ben Harosh v. State of Israel [19]; CrimA 3695/99 Abu Keif v. State of Israel [20]; CrimA 4263/98 Luabna v. State of Israel[21]; CrimA 3594/98 Ploni (John Doe) v. State of Israel [22]; CrimA 1050/98 Siamo v. State of Israel [23]; MAppCrim 6877/93 Ploni (John Doe) v. State of Israel [24]).

10.  Alongside the accepted approach as to stay of execution of a prison term during the pendency of appeal, another approach has developed over the years, which tends to be more flexible with the conditions for stay of execution until the disposition of the appeal of the convicted person.  The development of the broader approach has brought with it various grounds to justify the stay of the execution of the prison term and the freeing of the convicted person on bail until the conclusion of the hearing of the appeal, and the breaking out of the narrow framework of postponement of execution as only an exception.  This approach has been expressed in the words of Justice Bach in MApp 28/88 Sussan v. the State of Israel [25]:

“Personally,  I believe that if the convicted person’s chances of  winning the appeal seem good on the surface, and if in taking into account all the rest of the circumstances, such as the convicted person's criminal history and the danger that he poses to the public, there is no special reason for his immediate imprisonment, then the court is entitled to favorably weigh his release on bail until the appeal. . .  I also cannot entirely ignore the fact that it is a matter of a person with an entirely clean history,  that there is no apparent danger to be expected from him if execution of the sentence is stayed.  On the other hand, there is a risk, that if he is immediately arrested, and if he later wins his appeal, a result which as I stated, does not appear unreasonable, then he will serve a significant portion of a sentence which will later turn out to have been imposed unjustifiably.  In my opinion there is also a difference regarding a decision such as this between a defendant who was free on bail for the entire time before the judgment was handed down by the trial court, and a defendant that was detained pending the completion of the proceedings and seeks  now, after he has been convicted, to be freed from prison until his appeal is heard."

See also the decision of Justice Bach in MAppCr 4331/96 ElMakais v. State of Israel [26]; the decision of Justice Bach in MAppCr 5719/93 Forman v. State of Israel [27]; see also the decision of Justice Tal in MAppCr 6689/94 Attias and others v. State of Israel [28] which mentions the decision in Sussan in agreement above).

A different approach to the stay of execution of a prison sentence during the pendency of appeal in comparison to the accepted approach, has been expressed in the decisions of Justice Strasberg-Cohen in MAppCr 8574/96 Mercado v. State of Israel [29]; MAppCr 8621/96 Kuzinski v. State of Israel [30]; and MAppCr 4590/98 Sharabi v. State of Israel [31].  In these decisions Justice Strasberg-Cohen  reiterated that the rule is that the convicted person must serve the prison sentence immediately when it is imposed.  However, the Justice emphasized the need, in each and every case, to balance, in accordance with the circumstances and characteristics, the considerations and various interests involved in the matter of the stay of execution, while avoiding establishing rigid and limited categories of cases in which the imprisonment will be stayed until disposition of the appeal.  This is how this approach was presented by Justice Strasberg-Cohen in her decision in the Mercado case above:

"Indeed, it has been an accepted rule for us from long ago that a defendant who has been convicted, must serve his sentence as soon as it is imposed.  The reasons for this rule are well and good, both in the individual realm and in the public realm.  A person who is convicted and a prison sentence was imposed upon him is no longer presumed to be innocent and the very fact of his filing of an appeal does not reverse things and does not does put in the hands of the appellant a given right to stay his sentence.  As long as it has not been established otherwise on appeal, the convicted person is considered guilty by law and he must pay the price for his actions.  However, a conviction does not constitute the end of the matter.  The law has put in the hands of a person lawfully convicted, the right of appeal, which if he takes advantage of, will put his conviction and the punishment that was imposed on him, under the scrutiny of a higher court and only after the appeal is heard will the court have its final say.  We are faced with a clash between various interests worthy of protection.  On the one hand, the convicted defendant must pay the price for the deeds for which he was convicted and serve his punishment without delay, and the legal system must take care that the sentence is implemented immediately.  On the other hand, society must take care that a person does not serve a punishment of imprisonment for nothing, and that his liberty is not taken away from him when at the completion of the proceeding, he may be acquitted.  In my opinion, it is preferable to stay the prison term of ten defendants whose appeal was denied, rather than have one defendant serve his prison term, that it later turns out he did not have to serve.  However, it is not sufficient to merely file an appeal to bring about the stay of execution of a prison sentence, for if you would say so, then every prison sentence should be stayed, and I do not believe that it is correct to do so.  In order to find the right balance, we have at our disposal tools that we can use to measure and weigh all the relevant considerations and conduct a proper balancing between them."

A more sweeping approach which calls for a change in the accepted rules in the matter of stay of execution of prison terms during the period of appeal, is to be found in the decision of Justice Ilan in CrimApp 7068/98 Hachami v. State of Israel [32].

“I believe that the time has come to review the rule that a person should serve their sentence, even in if they have filed an appeal.  The reason for this is, that after the defendant has been convicted and is no longer presumed to be innocent it is proper that he serve his sentence as close as possible to the commission of the offense and the more the date is postponed -- the less efficient the punishment.  Despite this, everyone agrees that in the case where a relatively short prison term has been imposed, the execution of the punishment is to be deferred until the disposition of the appeal, lest the appellant serve his entire sentence by the time the appeal is heard.  This is also the position of the prosecution.  In my humble opinion the concern here is not just that perhaps a person will serve their entire sentence and then be acquitted.  Even a person who has been sentenced to six years in prison and serves two years by the time he is acquitted on his appeal has suffered an injustice despite the fact that  four years that he will not serve remain.

. . .  

In my opinion, the rule must be that a person should not serve their sentence until the judgment is final, unless there is a serious concern that it is not possible to guarantee that he will appear to serve his sentence or that he poses a danger to the public."

(Emphasis added -- D.  B.)

In addition to the decisions mentioned, which express each in its own way a deviation from the accepted approach, it is possible to point to decisions of the court which do not explicitly deviate from the position above, but in fact broaden the circumstances in which execution of a prison term is stayed.  From various decisions of justices of this Court there appears to be a tendency at times to take into consideration the fact that the applicant was free on bail during the course of his trial, his clean history and other personal circumstances.  Moreover, many of the decisions that were handed down do not give weight to the appeal’s chances of success and do not apply the test of "the chances of success of the appeal are apparent on the face of the judgment."  These decisions to a certain degree changed the normative picture of the situation in this matter as it appears in fact.  The Public Defender tried to persuade us with its arguments and the data presented, that in fact the courts have abandoned the guiding rule as to the immediate execution of a prison sentence, even if they avoided declaring a new policy.  It is difficult to reach this conclusion from the data that the Public Defender presented before us; this data relates primarily to decisions on appeal in the district courts that deal with relatively short prison terms that were imposed in the trial courts, and do not necessarily lead to the conclusions which the Public Defender reached.  However, it can be said that in the judgments of this Court there exists in point of fact a process of greater flexibility in the accepted approach and a broadening of the range of cases in which prison terms are stayed until the conclusion of the hearing of an appeal filed by the convicted person.

Stay of Execution of a Sentence of Imprisonment During the Period of the Appeal-Discussion

11. The first question we must ask is, is there a justification for re-examining the rules that apply in the matter of stay of execution of a prison sentence during the pendency of the appeal?  It appears that a re-examination is justified as described in the decision of Justice Zamir in the matter before us; from the details of the decisions mentioned above it appears that indeed there have been breaks in the accepted approach in the matter of stay of execution of a prison sentence during the pendency of the appeal and a certain lack of clarity has developed in light of the various approaches apparent in the case law of this court.  Moreover, the law  in the case, that was first developed about 50 years ago, grew against the backdrop of British law and developed in a normative environment in which significant changes have occurred over the years.  Among other thing significant changes have occurred in the areas of criminal law and process, the Basic Law: Human Dignity and Freedom was passed and there has been development in the status of the right of appeal.  These changes in the substantive law have practical ramifications, which indirectly impact the matter before us.  Thus, for example, the change that occurred in the  law of arrests with the passing of the Arrests Law influenced not only the fundamental realm, but also increased the number of accused who are released on bail during their trial; a fact which has increased the number of accused who at the stage of decision on an application to stay execution are being denied their freedom for the first time.  This re-examination is necessitated therefore, in light of the changes that have occurred in our law over the years, which justify examining the validity of the law against the backdrop of the normative reality of our own time.  We will turn to this now.

12. As a starting point for our discussion we are guided by the statutes which apply to the matter of stay of execution of a prison sentence during the pendency of the appeal.  As has been said above, section 43 of the Penal Law,  as it has been constructed  in case law,  establishes that a prison sentence is to be executed immediately upon sentencing, unless the court has ordered otherwise.  Decisions of this court in which it has been determined that the rule is that imprisonment during the period of appeal is not to be stayed except in special and extraordinary circumstances, apparently is consistent with the general guideline that arises from the language of section 43 as to the immediate execution of imprisonment.  However, it must be emphasized that the case law that determined the law in this case, was not generally anchored in statutory language.  It can even be said that such law is not necessarily to be concluded  from the language of the statute.  From the version of the section and its legislative placement it can be concluded that it establishes a general guideline as to the date of the execution of the sentence and the manner of calculation of the prison term, and is not exclusive to the circumstances of filing an appeal on the judgment.  In other words, the section applies to the sentencing phase and by the nature of things does not distinguish in the matter of  the date of execution of the sentence between a situation where an appeal has been filed and other situations.    As to sections 44 and 87 of the Penal Law, they too do not explicitly relate to the question of stay of execution of the sentence during the pendency of appeal; section 44 was originally intended to give the court authority to establish in the sentence, a later date for execution of the prison term, while the aim of section 87 of the Penal Law is to grant the court the authority to stay yet again the date of execution of the prison sentence  (see Amendment to Penal Law (Methods of Punishment) Draft Proposal Hatzaot Hok no. 522 at p. 246, an amendment that was legislated as a result of CrimA 9/55 Yegulnitzer v. State of Israel [33], in which it was established that the court does not have the authority to stay the execution of a prison sentence from the moment that a date has been set for the commencement of its execution).  It may, therefore, be said that section 43 and sections 44 and 87 of the Penal Law do not delineate a framework that  limits the courts to stay of the execution of the sentence during the pendency of the appeal exclusively to “special” or “extraordinary” cases.

As can be seen from the above, the provisions of the Penal Law do not relate explicitly to the stay of execution of a prison sentence upon the filing of an appeal on a conviction.  However, when we come to examine the effect of filing an appeal on the date of execution of the sentence, we must take into account the accepted essence of the appeal process in our legal system.  According to our system, as opposed to what is customary in other Western European countries, the appeal in its essence is a separate process of review of proceedings that took place in the lower court.  In the European system, it is the principle of “double instances” according to which the two proceedings are handled as one unit, and the party is entitled to have both instances consider his case both from the legal and factual perspectives, that is accepted.  Because the process is not based to begin with on hearing oral evidence, the appeals court is not limited in receiving additional evidence, and as a rule the lower court does not have an advantage over the appeals court.  Apparently, for this reason, filing an appeal normally stays the execution of the decision of the lower court until the conclusion of the appeal proceedings.  We have already stated that unlike the European system, according to our system, when the proceeding in the lower court is completed the accused’s matter is decided by an authorized court, after having heard evidence and after having examined it by the stricter standard that is required in a criminal proceeding, and with this the conviction phase is complete.  Accordingly, the fact of realization of the right of appeal to an appeals court – which is the court of judicial review  -- does not necessitate stay of execution of the sentence, but rather at that phase it is necessary to express the consequences necessitated by the conviction, including execution of the sentence.  (for the difference between the two systems see S. Levin The Law of Civil Procedure – Introduction and Basic Principles (5759-1999) [63] at pp. 30-33, 185-186; and see  M. Damaska ‘Structures of Authority and Comparative Criminal Procedure’ [70]at 489-90).

Stay of the execution of the sentence is not therefore necessitated by the very filing of the appeal, and is a matter given over to the discretion of the court.  When the application is made at the sentencing hearing it is decided by the court imposing the punishment: when the stay is requested after the appeal is filed, the decision is in the hands of the appeals court.  The court which imposes a prison sentence and decides to stay the execution of the sentence takes into account circumstances related to the defendant and the offense and among other considerations may take into account the need to enable the defendant to file an appeal.  After filing an appeal on a decision in which a prison sentence was imposed, the appeals court has another consideration which can influence the range of considerations which relate to the date of execution of the prison sentence.  The decision as to the stay of the execution of the prison sentence during the pendency of the appeal will take into account, apart from the broad rule as to immediate execution of the prison sentence also special considerations which relate to the existence of a pending appeal on the decision.  Therefore, even if from the statutory clauses we learn a broad rule of immediate execution of the sentence, still the fact of filing an appeal can influence the manner of exercise of the discretion of the court as to the stay of execution of the sentence in accordance with the authority given to it by law, and it may change the balance between the various considerations entailed in the question of the date of commencement of execution of the prison sentence.

13. As a rule, exercising discretion as to deciding the question of stay of execution of a prison sentence entails a balance between considerations which relate on the one hand to the public interest, and on the other, to the interests of the individual involved.  Filing an appeal brings in further considerations which are also related to both public and private interests.  The proper balance of the totality of considerations related to the issue will determine in which cases the convicted person-appellant will begin to serve his sentence immediately, and in which cases execution of the sentence will be deferred until the disposition of the appeal.

There is no doubt that the broad rule regarding immediate execution of a prison term rests on the public interest of effective enforcement of the law.  This interest has several aspects: first, release of a person who has been convicted of a criminal offense may endanger public safety and security; this is particularly so when it is a matter of someone who was convicted of an offense that by its nature and the circumstances of its commission indicates a risk.  Second, release of a person sentenced to prison, may undermine execution of the sentence due to the flight of the convicted person from the law, and in certain circumstances of a pending appeal there may also be the fear of obstruction of justice.  It would appear that these aspects of the public’s interest in immediate enforcement are not in question.  They are learned a fortiori from the law of detention pending completion of the proceedings which enable denying the liberty of a person who enjoys the assumption of innocence where there is a reasonable basis for their existence.  When it is a matter of a person who has been convicted and sentenced, the weight of such considerations intensifies; it is a matter of a person who no longer enjoys the presumption of innocence, but is in the realm of a criminal who has been convicted and against whom a prison sentence has been imposed.  This fact can have an impact both on assessing the danger of a person, as we are no longer basing this on prima facie evidence but rather on a reliable  judicial determination that has been made on the basis of a foundation of the more stringent rules of evidence of criminal law, and on the fear of flight from the law, due to the concrete and real threat of imprisonment.

The public interest in immediate enforcement of imprisonment has an additional aspect, which relates to the need to enact effective action of the law enforcement mechanisms while maintaining public confidence in them.  The stay of the execution of a prison sentence may cause a large time delay between the date of the sentencing and the date the sentence is served, during which time a convicted person will be free to walk about.  This has the potential to damage the effectiveness of criminal punishment, as “the more time that passes between the commission of a crime or the discovery of a certain crime and the time the criminal is convicted, the lesser the deterring influence of the punishment imposed on others which may be offenders like him.” CrimA 125/74 Merom, Corporation of International Commerce, Ltd. and others v. State of Israel [34] at p. 75).  When a person who has been convicted of a crime and sentenced to prison walks about freely just as before, the deterrence of potential offenders may be hindered.  Justice Winograd discussed this in MAppCr 166/87 State of Israel v. Azran and others [17]).

“An incident such as this has an echo, and the release of the respondents, after they have been convicted, has or may have, a damaging effect, on potential offenders, who will mistakenly believe, that even though John Doe was convicted of rape, he is walking around free as though nothing happened.” (Ibid. at p. 810). 

Justice Dov Levin has also discussed the deterrence consideration:

“The starting point is that there is a presumption that he who has been convicted by the court of first instance is no longer presumed to be innocent and must be held accountable for his actions.  An unnecessary delay which is not necessitated by special reasons damages the deterrence aspect of the punishment.”  MAppCr 3360/91 Abu Ras and others v. State of Israel [35] (emphasis added D.B.)

 

See also the words of Justice Türkel in CrimA 7282/98 Uda v. State of Israel [36]:

“It is a matter of serious offenses and there is significance to the fact that it will be said that he who was convicted of their commission will be held accountable for them immediately after sentencing or closely thereafter.”  Moreover, public confidence in law enforcement authorities and the effectiveness of their actions, may be damaged as a result of the release of offenders who have been convicted and sentenced.  Before legislation of the Arrests Law, there was debate in this court whether considerations of deterrence and public confidence were relevant consideration in decisions as to detention pending completion of the proceedings in serious offenses.  But it is commonly accepted opinion that at the phase following overturn of the presumption of innocence, when a person’s guilt has been determined and his sentence passed, considerations related to deterrence and maintenance of the effectiveness of criminal punishment are relevant and proper.  These considerations are also relevant in the framework of exercise of discretion as to stay of execution of a prison sentence during the pendency of the appeal.  Similar considerations, related to deterrence, effective enforcement and fear of harm to public confidence in law enforcement systems as a result of the release of offenders after conviction and while their appeals are heard, we also find in the case law of other countries whose systems are similar to ours.  Thus, for example, in U.S. federal law emphasis has been placed on the element of deterrence in the framework of considerations related to the possibility of release on bail after conviction and until the disposition of the appeal.  This consideration was one of the considerations which was at the basis of the legislation of the Bail Reform Act of 1984 which made the conditions for release of convicted persons on bail during the period of appeal significantly harsher than  prior law.  (See U.S. v. Miller [51]; D. L. Leibowitz Release Pending Appeal: A Narrow Definition of ‘Substantial Question’ under the Bail Reform Act of 1984 [71] 1081, 1094).

In Canada, as in the United States, the issue of stay of execution is legislated in the framework of statutes regarding the release of a convicted person during the period of appeal.  Section 679(3) of the Canadian Criminal Code establishes the conditions for release during the period of the appeal.  Subsection (c) conditions the release of a convicted person during the appeal, inter alia, with the fact that “His detention is not necessary in the public interest."  The appeals courts in several Canadian provinces interpreted the above condition as including, inter alia, the consideration of the impact of the release of the convicted person on public confidence in the law enforcement systems.

“I think it can be said that the release of a prisoner convicted of a serious crime involving violence to the person pending the determination his appeal is a matter of real concern to the public. I think it can be said, as well, that the public does not take the same view to the release of an accused while awaiting trial. This is understandable, as in the latter instance the accused is presumed to be innocent, while in the former he is a convicted criminal. The automatic release from custody of a person convicted of a serious crime such as murder upon being satisfied that the appeal is not frivolous and that the convicted person will surrender himself into custody in accordance with the order that may be made, may undermine the public confidence and respect for the Court and for the administration and enforcement of the criminal law.”  (R v. Demyen [54])

For additional judgments in which a similar approach was adopted see R v. Pabani [55]; Mcauley v. R [56]; Baltovich v. R [57].

It should be noted that in Canadian case law there are also other opinions which emphasize, in the framework of the “public interest” test, the fear of “pointless imprisonment.”  Lacking case law of the Canadian Supreme Court on the matter, it appears that the more accepted approach is the one presented in the Demyen case above: “At this point, it is seen to be an intelligible standard under which to maintain confidence in the administration of justice” (D. Stuart Charter, Justice In Canadian Criminal Law (2nd ed., 1996) [67] 357).  It should be commented that the approach which emphasizes the importance of the public interest in immediate enforcement of the prison term was expressed in the Demyen case above and in other cases in relation to serious offenses of violence.

14. As said, the public interest with its various aspects, including considerations of deterrence, effectiveness and protection of  public confidence in the law enforcement system, still hold when we are discussing the matter of stay of execution of a prison sentence during the pendency of the appeal.  However, where there is an appeal of a decision in which imprisonment has been imposed, the fear of damage to the public interest and the weight it is to be given is of a more complex nature.  Against the considerations we have listed above, there stands the need to avoid irreparable and significant damage to the convicted party due to his immediate imprisonment, if it turns out after the fact – after his appeal was heard – that his imprisonment was not justified.  The severity of such injury is not to be underestimated.  “. . .denying his personal liberty is a particularly harsh injury.  Indeed,  denying personal liberty by way of imprisonment is the most difficult punishment that a civilized nation imposes on criminals.”  (In the words of Justice Zamir in HCJ 6055/95 Sagi Zemach and others v. the Minister of Defense and Others [38] in paragraph 17)  Such an injury is not just the business of the individual but touches on the interests of the general public; the clear public interest is that people who will eventually be declared innocent in a final judgment not serve time in prison.  Moreover, the public confidence in legal systems and enforcement may be severely injured if it turns out after the fact that the prison time served was not justified.  Justice Strasberg-Cohen pointed this out in MAppCr 4590/96 (Mercado) [31] above:

“Indeed as a rule, the accused who is convicted is to serve his sentence without delay and is not presumed to be innocent, non-immediate execution is likely to damage public confidence in the system, however, the acquittal of a convicted person on appeal after he has served a prison sentence that was imposed on him, may damage public confidence in the system, no less so.”

A similar approach was expressed in Canadian case law:

“Whatever the residual concerns which might cause individuals to question their confidence in a justice system which releases any person convicted of murder pending appeal, they would, in my view, pale in comparison to the loss of confidence which would result from an ultimate reversal of the verdict after Mr. Parsons had spent a protracted period in prison." (R v. Parson [58]).

15. Realization of the right of appeal which is given to the convicted person by law is also a consideration which the court must take into account when determining the question of stay of execution of a prison term.  In order to determine the matter before us I do not find it necessary to make a determination as to the weighty question of the legal status of the right of appeal.  I will note only that the claim of the applicant’s counsel in this matter that from the very anchoring of the right of appeal in section 17 of the Basic Law: the Judiciary, the conclusion is to be drawn that it is a matter of a constitutional basic right that cannot be limited except in those cases where there are grounds for detention, is far reaching and not to be accepted.   The question of the normative status of the right of appeal in our system is not a simple question and it has already been determined more than once in the case law that the right of appeal is established by law and is not included among the basic rights in our law, as determined by Justice Shamgar in HCJ 87/85 Argov and others v. the Commander of the IDF Forces for Judea and Samaria [38].

“The right of appeal is not counted among the basic rights that are recognized in our legal system which draw their life and existence from the accepted legal foundational concepts, which are an integral part of the law that applies here, as in the examples of freedom of expression or the freedom of occupation.” (Ibid. at pp. 361-362).

This court in fact did not recognize the right of appeal as a basic right, but the case law has emphasized the great importance of the institution of appeal “as an integral component of fair judging.” (See the High Court of Justice case, Argov above).  In light of the importance of the right of appeal it has been decided that an interpretation which grants the right of appeal is to be preferred over an interpretation which denies it.  (See HCJ 1520/94 Shalem v. The Labour Court and others, [39] at p. 233; MAppCr 2708/95 Spiegel and others v. State of Israel [40] at p. 232).  The Basic Law: Human Dignity and Freedom does not explicitly recognize the right of appeal.  The question whether it is possible to recognize a constitutional right of appeal among the protected rights in the Basic Law: Human Dignity and Freedom has not yet been considered in the case law.  Various possibilities can be conceived for anchoring the right in the Basic Law, whether as derivative of rights explicitly detailed in the Basic Law (in our matter – the right to liberty and perhaps dignity), and whether as stemming from the principle of proportionality in the limitation clause (meaning: defining the violation of liberty, property and more without first having an appeals process, is a violation “that exceeds that which is necessary.”  Compare to the words of Justice Or – as to the right to a fair trial – in LCA 5587/97 Israel Attorney General v. Ploni (John Doe) [41] at p. 861).  On the other hand, a view has been expressed which objects to the recognition of the right of appeal as a right that is derived from the Basic Law, although in discussion of the civil aspect, primarily for pragmatic reasons and taking into consideration the characteristics of our legal system (see S. Levin ‘Basic Law: Human Dignity and Freedom and Civil Legal Processes,’ [64] at pp. 462-463, and the discussion in his book supra at pp. 30-33).  It is interesting to note that in legal systems close to ours the right of appeal is not recognized as a constitutional right; it is not explicitly mentioned in the United States Constitution or the Canadian Charter of Rights and Freedoms, and to date has not been recognized as part of the constitutional right to due process.  (See; McKane v. Durston [52]; Jones v. Barnes [53]; W. R LaFave Criminal Procedure (2nd. ed., 1992) [68] 1136-1137).  Although voices calling for a re-examination of the law in this matter have been heard (See: in the United States – the minority opinion of Justice Brennan in the Jones case above; M. M. Arkin ‘Rethinking The Constitutional Right To a Criminal Appeal’ [72]; A.S Ellerson ‘The Right to Appeal and Appellate Procedural Reform’ [73]; in Canada see D. Gibson ‘The Crumbling Pyramid: Constitutional Appeal Rights in Canada’ [74]; R v. Farinacci [59].

As noted above, whether the right of appeal is recognized in our legal system as a basic right or not, there is no arguing its significant weight  in our system.  For the purpose of the matter which we are discussing – determining the discretion for stay of execution of a prison sentence in the framework of existing legislation – it is enough that we give thought to the rule of construction anchored in case law according to which an interpretation which gives the right of appeal is to be preferred over one that denies it.

16.  These are therefore the considerations and interests which are involved in exercising the court’s discretion in the stay of execution of a prison sentence, considerations which relate to both private individuals and the general public interest.  The court must exercise its discretion while conducting a proper balance among these considerations.  In the framework of conducting this balance special weight is to be given to the fear of unjustified violation of liberty.  The right to liberty has been recognized by this court as a basic right of the highest degree, that is to be respected and violation of it to be avoided to the fullest extent possible.  (See MApp 15/86 State of Israel v. Tzur [42] at p. 713 Justice Elon; The Judgment of Justice Heshin in MAppCr 537/95 Ganimat v. State of Israel [43] at 400-401).  Today the right to liberty is anchored in section 5 of the Basic Law: Human Dignity and Liberty.  The statutory provisions which we discussed above, which delineate the matter of stay of execution of a prison term, were in fact legislated before the legislation of the basic law and thus the provisions of the Basic Law cannot impinge on their validity (section 10 of the Basic Law: Human Dignity and Liberty).  However, the normative determination in the Basic Law, which defines the right to personal liberty as a constitutional right and which draws the balancing point between it and the various interests which society seeks to advance, influences the legal system overall; the significance of this influence, among other things is that the court’s interpretive work, as well as any exercise of discretion given to the court in the framework of existing legislation, will take place while taking into consideration the norm anchored in the Basic Law.  President Barak discussed this in the Genimat case above:

“What are the interpretive ramifications of the Basic Law: Human Dignity and Liberty for interpretation of old law?  It appears to me that one can point –without exhausting the scope of the influence – to two important ramifications of the Basic Law: first, in determining the statutory purpose at the core of an (old) statute, new and intensified weight is to be given to the basic rights established in the Basic Law.  Second, in exercising governmental discretion, which is anchored in old law, new and intensified weight is to be given to the constitutional character of the human rights anchored in the Basic Law.  These two ramifications are tied and interlaced with one another.  They are two sides of the following idea: with the legislation of the basic laws as to human rights new reciprocity was drawn between an individual and other individuals, and between the individual and the public.  A new balance has been created between the individual and the authorities.”  (Ibid. at p. 412)

17. As said above, the State claims that the defendant who has been convicted and sentenced to prison does not have a basic right to personal liberty.  Therefore, the State claims that the Basic Law: Human Dignity and Liberty has no relevance to the matter before us.  In any event the State claims that even if the right exists the law regarding stay of execution of a prison sentence meets the conditions of the limitation clause.  The general question whether the person who has been convicted and sentenced to prison has a ‘constitutional right’ to freedom, violation of which is subject to the tests of the limitation clause in the Basic Law, is a broad question.  Various approaches may be taken as to this question: thus for example it is possible to argue the absence of such a protected basic right, or to its being a right of lesser weight than other right which are anchored in the Basic Law (see A. Bendor, ‘Criminal Procedure and Law of Evidence: Development of Individual Human Rights in Procedural Criminal Law,’ [65] at p. 500; the words of Justice Dorner in HCJ 1715/97 Office of Investment Managers in Israel and others v. Ministry of Finance and others, [44] at p. 418 and on).  It is interesting to note that the Canadian case law that deals with the rights of prisoners, has recognized in certain cases the violation of the right to liberty of a convicted person serving a prison sentence, such as when there is a substantive change in the conditions of imprisonment or in the rules which apply to release on bail (see P.W. Hogg, Constitutional Law of Canada (4th. ed., 1997) [69] 1069; Cunningham v. Canada [60]; Miller v. The Queen [61] 112 – 118).

In our case there is no need to attempt and examine this question to its full extent and in the full range of situations in which it might arise.  This is because the question before us arises in a special situation and it is possible to limit the discussion to it alone.  In the matter before us, it appears to me that the State’s claim according to which determination of the question of the stay of execution of a prison sentence does not involve any violation of the right to liberty is not to be accepted.  The State is correct in its claim that when a person’s guilt has been determined by a court beyond a reasonable doubt, the assumption is that “there is a justification, which meets the standards of the limitation clause for executing the sentence imposed upon him.”  It is also true that the violation of the liberty of the convicted person is derivative of the judgment which has overturned the presumption of innocence, and from the sentence.  However, the complete distinction which the State wishes to establish in our case between denying liberty based on an authorized judgment and the determination of the date of commencement of the execution of the sentence, ignores the fact that the denial of liberty itself which is expressed in the immediate imprisonment, takes place at a stage in which the question of the accused’s  innocence has not been  finally determined.  A judicial judgment by which a person’ liberty is denied is also valid at the appeals phase as long as it has not been changed.  And yet, as long as a final decision has not been made there exists the potential to change the decision at the appeals phase and to reinstate the presumption of innocence.  In this situation, a decision whose significance is immediate imprisonment of a person, in accordance with the judgment which is the subject of the appeal, carries with it, beyond the immediate-physical violation of personal liberty, the possibility of serious violation of the liberty of an innocent person.  The severity of such violation may only be fully realized at a later stage, if, and to the extent that, the appeal of the convicted person is upheld and it is found that he served his sentence needlessly; but the existence of this possibility is the result of a decision as to the immediate execution of the prison sentence.  Against this background it can be said, that if we hold to the view that a person who has been convicted and sentenced to prison has no right to liberty then such a determination is fitting for an absolute conviction.  At the phase in which there is not yet a determination on the appeal of the convicted person, the right to liberty exists as a right but its intensity is weakened in light of the judicial determination which stands as long as it has not been overturned.

Indecision which relates to the question of violation of a constitutional right to liberty as a result of the immediate execution of a prison sentence prior to the determination of the appeal, has also been dealt with in the Canadian courts.  It is interesting to note that there, conflicting decisions have been handed down.  Thus, in the matter of R v. Farinacci [60] the prosecution’s claim – that was argued as part of a discussion as to the constitutionality of the statutory provision which deals with release on bail during the period of appeal –that the statutory provisions which deal with the release of a convicted person during the period of appeal do not violate the convicted person’s liberty, but rather the opposite is true – they advance it, and therefore are not subject to constitutional limitations, was dismissed.  In dismissing the claim the judge of the appeals court of Ontario established that:

“I cannot accept the respondent's contention that there can be no resort to s. 7 of the Charter in this case because s. 679(3) of the Criminal Code is not a provision which 'authorizes’ imprisonment but rather a provision which enhances liberty. There is, in my view, a sufficient residual liberty interest at stake in the post-conviction appellate process to engage s. 7 in some form. ... The respondent’s submission that s. 7 does not apply to bail pending appeal because, after conviction and sentence to a term of imprisonment, bail operates to enhance rather than to restrict liberty, proceeds from the same formalistic and narrow interpretation of constitutionally protected rights. In so far as the state purports to act to enhance life, liberty or security of the person, it incurs the responsibility to act in a non-arbitrary, non-discriminatory fashion and cannot deprive some persons of the benefits of the enhancement without complying with the principles of fundamental justice.” (Supra, at 40 - 41).

On the other hand, in another  decision in Canada the claim was dismissed according to which the statutory section which relates to release during the period of the appeal is not constitutional, while the claim of the prosecution there was upheld that the said statutory provision does not violate the right to liberty at all, as that was denied in the sentence, while the said statutory provision enables the freeing of the appellant:

“While the appellant's imprisonment clearly deprives him of his liberty, the authorization for this imprisonment does not derive from s. 679(3)(c). Rather, the appellant’s liberty is deprived by the sentence imposed by the trial judge. Nothing in s. 679(3)(c) adds to this deprivation. To the contrary, the provision affords a means of arranging the appellant's release. The appellant's liberty interests can only be enhanced by s. 679(3)(c), under which the operation of the sentence imposed by the trial judge may be temporarily suspended. There is thus no deprivation of any right in s. 679(3) (c). For this reason, I conclude that s. 7 does not apply to bail pending appeal.”

(R v. Branco) [62]).

In light of what has been said above it may be summarized and stated that when we come to establish the limits of appropriate judicial discretion for stay of execution of a prison term during the pendency of the appeal, we must do so while paying heed to the importance and the status of personal liberty, and the limits of permitted violation of it in accordance with the principles that were delineated in the Basic Law: Human Dignity and Liberty.  Justice Zamir discussed this in MAppCr 3590/95 Katrieli v. State of Israel [46], when he examined the guiding considerations in the matter of stay of execution of a prison sentence during the period of the appeal.

“Inter alia, weight is also to be given in this context to the Basic Law: Human Dignity and Liberty.  This basic right protects a person’s liberty (section 5) and although it is not sufficient to impinge on the validity of the Criminal Procedure Law, it is sufficient to influence via interpretation, the provisions of this statute as to release from detention or imprisonment.  In this vein, it is to be said that even when the law and the circumstances require denial of the liberty of a person in detention or prison, liberty is not to be denied to an extent that exceeds that which is necessary.”  (Emphasis added D.B.)

18.  In light of the various considerations and interests involved in the matter of stay of execution detailed above, how will the court exercise its discretion when coming to examine an application to stay execution of a prison sentence that has been imposed, until disposition of the appeal?  We will note first that the response of the applicant’s counsel to this question which rests primarily on the decision of Justice Ilan in the Hahami case above, is not acceptable to us.  This approach according to which the very filing of the appeal justifies stay of execution of the sentence, with the exception of cases where there is a fear that the convicted person will endanger public safety or will not appear to serve his term, is far reaching.  It does not properly distinguish between the phase of detention – when the presumption of innocence still holds, and the phase after conviction; it misses the target of the objective of giving effective deterrent expression to penal law punishment and may damage public confidence in the law enforcement system due to the release, as a matter of course, of those who have been convicted of criminal offenses.  It may also encourage filing meaningless appeals for the purpose of stay of the prison sentence.  In this matter we also cannot learn from the customary  law on this issue in the continental systems, where the criminal procedural process, the definition of the tasks of the court of appeals and the degree of its involvement in the determinations of the court of first instance is different from our system.  (See S. Levin’s book, ibid. [63] Damaska article [70] ibid.).

With that, the “accepted approach” for stay of execution of the prison sentence during the pendency of the appeal, in its traditional and limited meaning, no longer stands.  The appropriate approach to this issue must take into consideration and give weight to the totality of relevant considerations and interests which we have discussed which may apply to the various interests involved in the matter and the their degree of intensity under the circumstances and give them the appropriate relative weight.  According to this approach strict rules are not to be established for the exercise of discretion but rather guiding frameworks are to be delineated for its exercise.  The starting point must be that the court must utilize its discretion in a manner that takes into account the public interest in immediate enforcement of imprisonment, still prior to the hearing of the appeal, but must take care, however, that the realization of this interest does not harm the convicted person and their rights in a manner that goes beyond that which is necessary.  As detailed above, the directive of the legislature is that as a rule, a sentence of imprisonment is to be executed immediately after the sentence is handed down.  As we have explained, filing an appeal on a judgment does not in and of itself stay execution of the judgment, but rather the matter is given to the discretion of the court.  Nonetheless, when the court comes to decide on an application to stay  the date of commencement of the prison term on the basis of the authority given to it by law, the filing of an appeal constitutes an additional consideration that may impact the totality of considerations which are before the court, and the balance among them.  The burden is on the applicant for stay of execution of the prison sentence to convince the court that under the circumstances the public interest in immediate execution of the prison sentence  is overridden by the additional interests implicated in the case which we have discussed above.

The relevant considerations and interests will be examined by the court that is considering the applications, without purporting to present a closed list, we will discuss below the circumstances and primary considerations that the court must weigh when considering an application by the convicted person to stay execution of the prison sentence during the pendency of the appeal on the judgment:

(A)  The Severity of the Crime and the Circumstances of its Commission: the severity of the crime and the circumstances of its commission influence the intensity of the public interest in immediate enforcement of the prison sentence.  As a rule, the more severe the crime and the circumstances of its commission, the greater the public interest in immediate enforcement of the imprisonment, in its various aspects.   So too, as to the fear of the danger that the convicted person poses to the public, the severity of the crime of which he was convicted can in and of itself be an indication of his dangerousness.  As to the essence of the offenses which constitute on their own an indication of dangerousness, one can also learn from the laws of detention, according to which being accused of certain offenses creates a presumption as to the dangerousness of the accused (see: Arrests Law s. 21 (a)(1)(c)).  It is to be noted that in American law it has been established by law that a person who was convicted of committing certain serious offenses, such as violent offenses or offenses punishable by death or imprisonment beyond a certain time period, are not to be released on bail or the conditions for release are harsher than usual (see Bail Reform Act of 1984, s. 3143(b)(2); 8A Am.  Jur.  2nd. [76] 283) the severity of the crime and the circumstances of its commission also have ramifications on the intensity of the interest of protecting the effectiveness of criminal punishment and the actions of law enforcement authorities; the greater the severity of the offense and the circumstances of its commission, the greater the public interest in achieving effective deterrence from commission of similar crimes by others and the greater the fear of damage to the effectiveness of punishment and public confidence in enforcement systems if the convicted person is set free.  And note: as to this last matter I do not believe that the severity of the offense needs to be determined only according to the measure of the violence involved in its commission.  According to my approach, even the release of somebody convicted of committing offenses that do not involve severe violence and are not of the type of offenses listed in section 21 (a) (1) (c) of the Arrests Law, but which damage protected social interests of importance, including offenses of far-reaching fraud or corruption offenses that were committed through the abuse of public office, may under certain circumstances damage public confidence in law enforcement authorities and the effectiveness of criminal enforcement.  Such damage is a consideration among the considerations of the court in making a determination as to stay of imprisonment, within the examination of the background of the other facts of the case.

(B).  The Length of the Prison Term Imposed on the Convicted Person: The length of the prison term may affect the court's discretion in a number of ways.  First, when the prison term is brief, relative to the date in which the appeal is expected to be heard, there exists a fear that the convicted person will serve his sentence before his appeal is heard.  In such a case, it is appropriate to stay execution of the sentence in order to enable the convicted person to effectively realize the right of appeal which he has by law.  This approach is also acceptable within the traditional approach for staying execution of a sentence.  And it appears that it is necessitated by the accepted rules of construction as developed in the case law, according to which legislation is to be constructed in a manner that validates the right of appeal and enables its realization.  Second, the length of the prison term imposed on the convicted person may influence the assessment of the fear of flight of the convicted person from the law or attempts by him to obstruct justice; the concrete knowledge of the convicted person that if he fails in his appeal he is to expect a prolonged prison term, may increase the fear that he may flee from the law, this is so even if in the course of his trial in the trial court he appeared for his trial as required.  Third, the severity of the punishment that was imposed on the convicted person teaches us of the severity of the crime of which he was convicted, as generally punishment reflects the severity of the criminal act.

(C).  The Quality of the Appeal and the Chances of its Success: A central question to which we must give thought is what is the weight that is to be given to the fact of filing an appeal and to the chances of the appeal.  For the reasons we have already detailed, we have seen fit to reject the approach according to which the very filing of an appeal justifies stay of the execution of the sentence.  However, it appears that a perspective according to which it is appropriate to make a change from the present law, relates to the weight that is to be given to the quality of the claims raised in the appeal and the chances of its success in the framework of examining an application to stay execution of a sentence until the disposition of  the appeal.  The accepted approach in the case of stay of execution of a sentence leaves a particularly narrow opening for consideration of the appeal of the convicted, when it is not a matter of a short prison term and light offenses.  According to this approach, only conspicuous chances to win the appeal or salient distortion in the conviction justify stay of execution of the sentence during the pendency of the appeal.  This test establishes a high threshold which only in a few cases will the convicted person seeking to stay his imprisonment meet.  Such a test can injure in a disproportionate manner the freedom of the convicted person and the effective realization of the right of appeal; it creates an overly large gap between the level of examination at the preliminary phase of the decision on the application to stay execution of the sentence, and examination of the appeal itself, and increases the chances that serving the sentence will turn out retroactively to be unjust.  Under these circumstances, the means of immediate execution of a sentence may cause damage which is more than the utility contained within it.  It is not superfluous to note, that the test as to the chances of the appeal as it had been phrased in the case law, has in point of fact "been abandoned" in many decisions of this court, and even the State in its arguments before us does not phrase the appropriate rule according to its approach with such narrow language.

The consideration which relates to the chances of appeal is a relevant consideration to the question of stay of execution of the sentence during the period of appeal.  The more that the convicted person is able to show that his appeal is based on solid arguments the greater the justification to avoid immediate enforcement of the judgment before the appeal is heard on the merits.  However, it is not to be ignored that the consideration as to the chances of the appeal is a complex consideration, and assessing the chances of the appeal and its quality places before the judge difficulties which are not negligible.  From the character of the procedure which takes place during the application to stay execution of the sentence it can be derived that the judge does not have sufficient tools to assess in an informed manner the arguments raised in the appeal; the procedure takes place on the basis of a theoretical examination of these arguments and does not generally include studying the transcript and the totality of the evidence that was brought in the case.  Moreover, it is not desirable that a judge dealing with an application to stay the execution of a sentence, will make determinations that may have an influence on the discussion in the appeal itself.  Despite said difficulties, we are not dealing with an extraordinary assignment that judges are unaccustomed to.  Theoretical assessments are not new to the court, and it is accustomed to implementing considerations of this type at the phase of discussion of detention pending completion of the proceedings as well, when the presumption of innocence still stands.  A similar process of assessing the theoretical chances of an appeal, is also familiar to the court when dealing with applications to stay execution of a sentence in civil appeals.  We will note further that  in other legal systems which are similar to ours, weight is given to the chances of appeal and its quality in the framework of a determination as to stay of imprisonment until disposition of the appeal: thus, it is determined by federal law in the United States that the release of a convicted person on bail during the course of the pendency  of his appeal is conditioned on his proving that his appeal "raises a substantial question of law or fact likely to result in reversal..."  (Bail Reform Act of 1984, S. 3143 (b) (B)).  Courts are split as to the interpretation of this section, but it appears that the common approach is that the convicted person must show that the appeal raises a  question that is at least "balanced" in its chances ("close question").  (See T.W. Cushing “Raising a ‘Substantial Question’: The Key to Unlocking the Door Under the Bail Reform Act”  [75] 198). Indeed, the Canadian Law makes do with the requirement that the appeal  is not baseless or ‘frivolous,’ but in a number of decisions a statutory condition as to the lack of public interest in the imprisonment of the convicted person has been interpreted as including, inter alia, the assessment of the quality and strength of the appeal arguments. (See: R. v. Mcauley (1997) Ont. C.A Lexis 3[56]; R. v. Farinacci [59]; R v. Pabani [55]).

The theoretical assessment of the chances of appeal, in the framework of examining an application to stay execution, is not done by a "mechanical" probability test relative to the possible results of the appeal: such an examination is not possible in fact and it is not desirable for it to be undertaken by a single judge at such an early phase of the discussion.  The judge dealing with an application to stay execution of a sentence is to examine the quality of the arguments on appeal and their type, and assess their  inherent potential to influence the outcome of the appeal.  The theoretical strength of the arguments will be examined against the background of the accepted rules in our system relative to the exercise of review by the appeals court.  Thus, for example, claims by the applicants to change factual findings of the lower court which are based on its impression of witnesses, or reliable determinations of that court, will not generally be sufficient to base good theoretical chances for the appeal.  When the appeal is focused on legal questions, for which it can be determined on a theoretical level that they raise real difficulty, this will be sufficient, generally, to point to an appeal which justifies stay of execution of the sentence until these are clarified.  It is not unnecessary to note that it is not the outer legal dress which is given to the appeal argument which is determinative, but the substance of the argument and the degree of its relation and relevance to the concrete circumstances of said case, in a manner that is sufficient to influence the results of the appeal if the claim is upheld.  Thus,  it can be summarized that when it is a matter of serious arguments, that by their nature and character – if they are accepted – are sufficient to influence the results of the appeal this will contain a significant consideration for justifying stay of execution of the imprisonment until disposition of the appeal, all this taking into account the totality of circumstances of the matter.

(D.) The Criminal History of the Convicted Person and his Behavior During the Course of the Trial: as has already been noted above, these circumstances may point to the degree of dangerousness that is posed to the public from release of the convicted person and the existence of a fear of flight from the law.  This being the case, they may be relevant to applying the court's discretion when it examines whether to stay execution of a prison sentence until disposition of the appeal.  And note: this is not a matter of a consideration that stands on its own, and therefore it is not in every case that the convicted person without a criminal history or for whom it has been proven that he appeared properly during the course of his trial, will be sufficient to determine the matter of stay of execution of a prison sentence.  It may even be said that generally, at the phase after conviction, a clean record and careful adherence to the conditions of bail during the time of the trial proceedings, are not of themselves sufficient to tilt the scale to stay execution of the sentence, taking into account the impact of the conviction and sentence on the assessment of the dangerousness and on the fear of flight by the convicted person, and considerations of deterrence and effectiveness which we discussed above (see paragraph 13 supra).  But in the framework of the totality of the relevant considerations against the  examination of the severity of the offense, the degree of punishment that was imposed and the nature of the appeal, it is possible to also take into account data as to a clean criminal history of the convicted person and his good behavior during the course of the trial.

(E) The Personal Circumstances of the Convicted Person: in the framework of examining the application to stay execution of a prison sentence, it is possible to also examine, in appropriate cases, the personal circumstances of the convicted person.  A judicial decision, whose immediate significance is imprisonment of a person, whether it is a matter of the sentencing phase or whether it is the appeal phase, does not need to entirely ignore any claim as to personal circumstances of the person and as to the consequences he may expect as a result of his imprisonment.  Accordingly, personal circumstances constitute a consideration in the stay of execution of the prison sentence not only under the circumstances of the filing of an appeal.  Moreover, the existence of special personal circumstances, may also influence the weight of the public interest in immediate execution of the prison sentence.  The words of Justice Barak in MAppCr 37171/91 State of Israel v. Golden [46] which were said on the separate  topic of detention pending completion of the proceedings on the grounds of severity of the offense (prior to legislation of the Arrests Law), are appropriate here:

"The injury to the effectiveness of the criminal law and its enforcement, which is caused where someone who committed a severe offense, is "out and about" is tied, by its nature, to the theoretical circumstances of commission of the crime.  The efficiency of law enforcement will not be harmed, if someone who theoretically committed a serious offense is not detained because they are dying.  Everybody understands that the special circumstances of the case justify that even someone who theoretically committed a severe offense, will not be arrested under these circumstances.  Quite the opposite: arrest of the accused under these circumstances may create the impression that the state is taking revenge on the suspect and seeks him ill." (Ibid. at p.  814.  Emphasis added -- D.  B.)

It appears to me that the logic behind these words is appropriate, with the appropriate changes, also when we are talking of the difficult personal circumstances of the convicted person whose appeal is pending.  Indeed, taking into consideration the fact that we are now at the phase after conviction, it is possible that personal circumstances -- on their own -- will not generally have much weight in the decision of the court as to the stay of execution of a prison sentence, as the premise is that the court that imposed the sentence, also considered among the punitive considerations the existence of these circumstances.  However, there may be cases in which it appears on the face of it that this premise does not exist; thus for example, when the personal circumstances which are argued developed or changed significantly after the sentence was handed down.  So too, in other cases due to the special personal circumstances of the convicted person, such as his young age, his difficult mental condition or additional considerations for which the consequences of execution of the prison sentence may be particularly difficult.  In such cases, the personal circumstances will add additional weight to the decision to stay execution of the prison sentence until disposition of the appeal.  We will note that from examination of the decisions of this Court in applications to stay execution it appears that special personal circumstances indeed occasionally serve as a consideration among the considerations of the court when coming to determine applications to stay execution of prison sentences during the pendency of the appeal (see for example MAppCr 4092/94 Tioto v. State of Israel [47]; CrimA 6579/98 Friedan v. State of Israel [48]).

(F) Appeal as to Severity of the Punishment:  An additional consideration that is to be weighed in applications to stay execution of prison during the period of appeal, is whether the appeal is directed against the judgment and challenges the conviction itself, or whether it is a matter of an appeal that deals with the severity of the punishment that was imposed only?  As a rule, in appeals of the latter type, the tendency will be not to stay execution of the prison sentence.  When the appeal is on the severity of the punishment, the balance of the considerations and interests which is before the eyes of the court may change.  In such a case, the conviction itself -- which refutes the presumption of innocence -- is absolute, and  the same potential does not exist for it to be restored on appeal, which we discussed above.  Examining the quality of the appeal and its chances will be done while noting the rules as to the degree of intervention of the appeals court in punishment that was imposed by the trial court, and the question of the relationship between the time expected for hearing the appeal and the period of imprisonment that was imposed on the convicted person.  When on the face of it is not a matter of a punishment which deviates from the accepted punitive policy, and when the degree of punishment that is accepted in similar cases is greater than the amount of time expected for hearing the appeal, execution of the prison sentence will not be stayed except in exceptional circumstances and the burden for showing this is so will be on the applicant.  (Compare: CrimA 3602/99 Ploni (John Doe) v. State of Israel [49], Justice Ilan; 3976/99 Ephraimov v. State of Israel [50], Justice Strasberg-Cohen).

19.  As said, the list of circumstances detailed above does not purport to be exhaustive.  It exemplifies the type of circumstances and considerations that have in them to influence the application of discretion by the court when it comes to determine an application to stay execution of a prison sentence during the pendency of the appeal; these considerations relate to the public interest in immediate enforcement of the judgment on the one hand, and preservation of the rights of the convicted person on the other hand.  The court must determine each and every case according to its facts, while balancing between the different interests which we have discussed above relating to the topic.  It is important to emphasize that the considerations which we discussed are not static and do not stand on their own, but influence each other.  The work of balancing between them will be done after assessing the strength of the various interests and the weight that is to be given to each of them under the circumstances of the case.  Thus, for example, the more the convicted person can show that his theoretical chances of success on appeal are good and well founded, the lesser the weight of the public interest in immediate enforcement of imprisonment, and thus, depending on the matter, will be narrowed to those considerations of danger to the public or flight from the law, which also apply in the law of detention pending completion of the proceedings.  So too, the more it is a matter of conviction of a more severe criminal offense, the circumstances of whose commission are more severe, so too will the burden increase on the convicted person that seeks to stay execution of his prison term to show that there exist circumstances which justify stay of execution of the prison term despite the public interest in its immediate enforcement.

Conclusion

20.  In conclusion, the summary of our position as to stay of execution of a prison sentence during the pendency of appeal, is this:

A.  The filing of an appeal is not sufficient on its own to stay execution of a prison sentence.  Stay of execution of a prison sentence during the pendency of the appeal is a matter for the discretion of the court.

B.  The approach which was accepted in the case law of this Court, according to which stay of execution of a prison sentence during the period of appeal is a matter of an exception which applies only in extraordinary cases and under the existence of special circumstances, no longer holds.

C.  In applying its discretion as to stay of execution of a prison sentence during the period of appeal, the court will consider the public interest in immediate enforcement of the judgment, and considerations which relate to the convicted individual and his rights in light of the existence of a pending appeal proceeding; the court will make sure that protection of the public interest will not harm the convicted person and his rights in a manner that is not proportional.  The type of relevant circumstances and considerations which the court will take into account when applying said discretion, were detailed in our decision.

D.  The burden on the applicant for stay of execution of the prison sentence is to convince the court that under the circumstances of the case, the public interest in immediate execution of the prison sentence retreats in the face of the additional interests involved in the matter.

The approach we propose is not new to the case law of this Court; and it is integrated with a broadening trend taking shape in previous decisions of the court, such as for example in the judgments of Justice Strasberg-Cohen in the Mercado, Kochanski, and Sharabi cases above.  This approach operates to make the accepted approach for stay of execution of a prison term during  the pendency of the appeal more flexible in a manner that will reflect the totality of considerations and interests involved in the matter, while giving appropriate weight to the concern for violation of the rights of the convicted person.

From the General to the Specific

21.  Having drawn the basic framework, we turn to the application of the guidelines in exercising our discretion in the circumstances of the applicant’s case.  It should first be said that the case before us is not of the easier cases for determination, both because of the type of offense, and because of the reasons for the appeal and because of the "borderline nature" of the period of imprisonment.  Moreover, the date of determination of the appeal arrived after the applicant received, in fact, a significant stay of execution during the time that was required to formulate our approach to the fundamental issue.  However, the correct question is – if the matter of the applicant had come to us a priori -- whether based on the guidelines that we have delineated we would have upheld the application to stay execution of the prison sentence until the disposition of the appeal.  I have come to the conclusion  that were I to consider the application and make a decision as to it a priori, according to the criteria we proposed, while balancing among the relevant considerations, I would have tended in the direction of immediate execution of the prison sentence.

The offenses with which the appellant was convicted -- rape and sodomy -- are severe offenses, and seemingly by their nature are the type of offense which point to the dangerousness of the person convicted of committing them.  Generally we will rarely stay execution of the sentence for convictions of offenses of this type, for reasons of public interest, including the enforcement interest.  Moreover, the period of imprisonment that was imposed on the applicant -- 3 years of imprisonment in fact-- is not considered among the short time frames for which it is appropriate to give a stay of execution only to enable hearing of the appeal; at most, it would have been justified to move the hearing of the appeal forward, in consideration of the length of the prison term.  When we come to weigh the chances of the appeal we must give thought to the fact that the notice of appeal is directed primarily against findings of fact and findings of credibility, and does not raise serious legal questions.  Generally such an appeal, on its face and lacking reasons that would show otherwise, does not have a large theoretical chance, even if of course we cannot rule out the possibility that the claims or some of them will eventually be accepted.  To all this is to be added, that apparently it arises from the sentence that the court took into account the personal circumstances of the applicant, and the normative background, and gave them expression in the sentence that was handed down.  There are not in the personal circumstances of the applicant extraordinary considerations of the type that justify stay of execution of the prison sentence in order to prevent special harm that is expected from the fact of imprisonment.  Therefore, if the grounds for the application had been before us under regular circumstances they would not be sufficient to convince us to stay execution of the sentence.

However, when we come to determine the matter of the applicant today, we must also consider among our considerations the fact that the applicant has been free on bail for a long period of time since the sentence was handed down and his appeal may be heard soon.  For this reason, and in consideration of the date that has been set for hearing the appeal, it is not appropriate, at the present phase in the proceedings, to order the immediate imprisonment of the applicant. 

 

President A. Barak

I agree.

 

Vice-President S. Levin

I agree

 

Justice T. Or

I agree.

 

Justice E. Mazza

I agree.

 

Justice M. Cheshin

I agree.

 

Justice T. Strasberg-Cohen

I agree.

 

Justice D. Dorner

I agree.

 

Justice Y. Kedmi

1. Stay of Execution of a Prison Sentence

My colleague, Justice Beinisch is worthy of accolades for the effort invested in preparing her thorough and comprehensive opinion.  Strength to him.

I join the result that my colleague has reached: and the framework of considerations proposed by her as a basis for consideration of an application to stay execution of the prison term against the background of filing an appeal is acceptable to me.  However, in light of the language of the summary presented in paragraph 20.b. to the judgment which states: “stay of execution of a prison term during the period of appeal,” is no longer “an exception which applies only in extraordinary cases and under the existence of special circumstances” – I find it necessary to add a qualifying comment.

The summarizing language in said paragraph may leave the impression, that stay of execution of a prison term under said circumstances is no longer an ‘exception’ to the rule which requires immediate execution of such a judgment.  In my approach, from the substantive-fundamental approach, this is not the stance which is necessitated by the clarification undertaken by my colleague in this matter in her judgment; and does not sit well with imposing the burden of persuasion – as to existence of circumstances which justify stay of execution on the applicant, as necessitated by the language of paragraph 20.d. of the summary.

Reading the judgment teaches me at least, that from the fundamental perspective the law and the case law in the following two areas have stayed as they are.  One – and this is the primary one – that based on the written law, the rule is that a prison term is to be executed immediately upon imposition, unless there exist grounds which justify staying its execution; when the individual seeking the stay, bears the burden of persuasion of the court as to the existence of the grounds.  And the second – whose practical significance does not fall below that of its predecessor – that the central consideration for justifying deviation from the said rule, is contained in the chances of the appeal’s success.  I have also learned from the judgment: that the specific secondary considerations which are grounded in the special circumstances of a said case – that were developed in this context in the case law, have also been left as is; and there is no basis for the argument heard lately in courts according to which: the provisions of the Basic Law: Human Dignity and Liberty, undermine the basis from the existing law in the matter of stay of execution and necessitate establishing an innovative approach, at the basis of which stands the constitutional right to personal liberty.

The change presented in the judgment, is, in my view, a change in the policy of the application of the existing rule; as opposed to a conceptual change which establishes a new rule.  To this character of the change – with which, as said above I agree – I found explicit expression in the words of my colleague according to which: the change “relates to the weight that is to be given to the quality of the arguments raised in the appeal and the chances of its success”; in a manner that “The more that the convicted person is able to show that his appeal is based on solid arguments the greater the justification to avoid immediate enforcement of the judgment.”  Therefore: we do not have a fundamental revolution here, rather – clarification of the proper application of the rule already existing for us according to which: from now on the threshold of requirements for stay of execution, is no longer as high as was to be understood from decisions given in the past in this matter, but lower and more flexible.

In summary, in my view – and in this I differ from the conclusion – there are two guidelines necessitated by the judgment: first – there is no room for the approach which says that “only blatant chances for success on appeal or a manifest distortion on the face of the conviction, justify stay of execution of the prison sentence during the pendency of the appeal”; and second – the judge considering the application must examine “the quality of the arguments on appeal and their type to assess the potential entailed in them to influence the results of the appeal.”

2. Joining a Party to the Proceeding as a “Friend of the Court”

Granting the Public Defender’s application to join the discussion as a “friend of the court” in the case before us, is not in line with my view in the matter.  Here are a number of comments which reflect, fundamentally, my view on the subject.

The inherent authority of the court to join a “friend” to the discussion is an exception to the character of the judicial proceeding which is customary here.  It is proper therefore to take care to make use of this authority in the rarest of cases, when the circumstances justify not only deviation from the rule, but necessitate it.  The fact that the “friend”  has the power to offer the court “assistance” in the solution of the legal problem before us, does not constitute, on its own, a sufficient basis for inviting a “friend” to join the discussion.  For it we say this, the “friend” will become the “legal helper “of the court; and in my view this is not the purpose of the existence of this institution.  In our system, the court copes with “legal issues” with the help of the “natural” parties who appear before it; when at the top of their priorities – and this is particularly so of defense attorneys – stand the accused and not consideration of the analytical-fundamental legal issue, which relates to the totality of accused or others involved in the criminal act which is the subject of the discussion.  The court does not need offers of professional legal help from the broad public; and particularly not from those who have an interest in promoting one solution or another to a problem that is to be determined in the discussion taking place before it.

As a rule, therefore, it is appropriate, in my view, to limit the invitation of a “friend,” to circumstances of “procedural necessity,” meaning: to circumstances in which the involvement of the “friend” is necessary to ensure the existence of a proper and fair discussion in the matter of the accused standing trial; as opposed to circumstances in which “friends” seek to present their own positions in the matter under discussion.  The friend is indeed the friend of the Court; however, from a practical standpoint, he is the friend of the accused who is in distress. In the case before us, the application of the Public Defender to be joined to the discussion as a “friend” of the court did not come against the background of coming to the aid of a defendant in distress in order to ensure a fair trial in his matter; but rather, against the background of its desire to advance its fundamental position in the legal issue that has been placed by the parties before the court.  In fact, the Public Defender seeks to join itself to the discussion as the “friend of all accused,” all of them; and this so that it will have the opportunity to convince the court of the justness of a judicial policy which appears to it to be consistent with “rights of the accused.”  This is not the end  to which the Public Defender was established; and in any event, this is not the purpose of the existence of the institution of the Court.

In summary: in my view, the institution of the Public Defender was established to ensure legal representation for the accused, when circumstances exist as established in the law; and is not assigned with the advancement of the interests of all defendants as such.  In any event, even if it was assigned the task of protecting the rights of accused in general, this is not sufficient to grant it the status of “friend of the court”; and to prefer it over any other organization that sets as its goal to advance the interests of others “involved” in the criminal proceeding, such as: the entities handling the protection of rights of the victims of the offenses.  It is appropriate that advancement of the rights of all accused be done elsewhere and not in the framework of the consideration of the matter of a given accused person.

Therefore, the application to stay execution of the prison sentence is granted as per the judgment of the Hon. Justice Beinisch.

 

4 Sivan 5760

June 7, 2000

HCJ 258/07

 

MK Zahava Galon

v.

Government Commission of Investigation for Examining the Events of the 2006 War in Lebanon

 

 

The Supreme Court sitting as the High Court of Justice

[6 February 2007]

Before President D. Beinisch, Vice-President E. Rivlin

and Justice A. Procaccia

 

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

 

Facts: The government set up a commission of investigation to examine what happened in the war in Lebanon in 2006. The commission decided to hold all of its proceedings in camera and not to publish any transcripts of the proceedings, on the ground that they were privileged for the reason of state security. This decision was challenged by the petitioner, who argued that the proceedings should only be held in camera if holding them in public would give rise to a near certainty of serious harm to state security, and that transcripts of those parts of the proceedings that did not satisfy this test should be published. The commission argued that it could not know in advance whether testimonies would contain privileged matters or not. It also argued that publishing the transcripts would require considerable work given the need to exclude matters that were privileged and proposed to do so only after presenting its final report, since to do so earlier would delay the preparation of the report.

 

Held: Most of the testimonies had already been heard by the commission when the petition was filed. Therefore, the question of hearing those testimonies in public was no longer relevant. The commission did not dispute that it was subject to the rule of publicity, according to which holding proceedings in public is the rule whereas holding them in camera is the exception. The presumption should therefore be that the commission would conduct itself accordingly, and would examine whether all or some of the testimonies that might be heard at a later stage could be heard in public. With regard to the publication of the transcripts of the commission’s hearings, the court held that the commission should publish those parts of the transcripts that were not privileged within a reasonable time, before the final report was presented to the government. Subject to these guidelines, the petition was denied.

 

Petition denied.

 

Legislation cited:

Administrative Courts Law, 5752-1992, s. 25, 25(b)(1).

Basic Law: Administration of Justice, s. 3.

Courts Law [Consolidated Version], 5744-1984, ss. 68, 68(a), 68(d)(1), 68(d)(2).

Commissions of Inquiry Law, 5729-1968, ss. 1, 9-11, 14, 15, 18, 18(a), 20, 20(a), 20(c), 22, 23, 27(a), 27(b).

Freedom of Information Law, 5758-1998, ss. 1, 9(a)(1).

Government Law, 5761-2001, ss. 8A, 8A(a), 8A(c).

 

Israeli Supreme Court cases cited:

[1]      HCJ 6728/06 Omets v. Prime Minister [2006] (4) TakSC 2797.

[2]      HCJFH 10030/06 Movement for Quality Government in Israel v. Prime Minister (not yet reported).

[3]      CrimA 152/51 Tripos v. Attorney-General [1952] IsrSC 6(1) 17.

[4]      HCJ 11793/05 Israel News Company Ltd v. State of Israel (not yet reported).

[5]      LCrimA 5877/99 Yanos v. State of Israel [2005] IsrSC 59(2) 97.

[6]      AAA 9135/03 Council for Higher Education v. HaAretz Newspaper Publishing [2006] (1) IsrLR 1.

[7]      AAA 6013/04 Ministry of Transport v. Israel News Co. Ltd (not yet reported).

[8]      HCJ 680/88 Schnitzer v. Chief Military Censor [1988] IsrSC 42(4) 617; IsrSJ 9 77.

[9]      HCJ 243/62 Israel Film Studios Ltd v. Geri [1962] IsrSC 16(4) 2407; IsrSJ 4 208.

[10]    HCJ 1/81 Shiran v. Broadcasting Authority [1981] IsrSC 35(3) 365.

[11]    HCJ 1601/90 Shalit v. Peres [1990] IsrSC 44(3) 353; IsrSJ 10 204.

[12]    HCJ 14/86 Laor v. Film and Play Review Board [1987] IsrSC 41(1) 421.

[13]    HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Central Elections Committee for Sixteenth Knesset [2003] IsrSC 57(2) 62.

[14]    CA 2800/97 Lipson v. Gahal [1999] IsrSC 53(3) 714.

[15]    HCJ 6005/93 Eliash v. Israel Bar Association [1995] IsrSC 49(1) 159.

[16]    CrimApp 5153/04 A v. Yediot Aharonot Ltd [2004] IsrSC 58(6) 933.

[17]    LCA 3614/97 Avi-Isaac v. Israel News Co. Ltd [1999] IsrSC 53(1) 26.

[18]    CrimA 11793/05 Israel News Co. Ltd v. State of Israel [2006] (2) TakSC 62.

[19]    LCrimA 1127/93 State of Israel v. Klein [1994] IsrSC 48(3) 485.

[20]    CA 6926/93 Israel Dockyards Ltd v. Israel Electric Co. Ltd [1994] IsrSC 48(3) 749.

[21]    LCA 1412/94 Hadassah Medical Organization v. Gilad [1995] IsrSC 49(2) 516.

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

[23]    EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [2003] IsrSC 57(3) 793.

[24]    CA 5185/93 Attorney-General v. Marom [1995] IsrSC 49(1) 318.

[25]    CrimA 353/88 Vilner v. State of Israel [1991] IsrSC 45(2) 444.

[26]    LA 176/86 A v. B [1986] IsrSC 40(2) 497.

[27]    CrimApp 2794/00 Aloni v. State of Israel [2000] IsrSC 54(3) 363.

 

For the petitioner — D. Holz-Lechner.

For the respondent — A. Helman.

 

JUDGMENT

 

 

President D. Beinisch

The Government Commission of Investigation for Examining the Events surrounding the 2006 Lebanon War has until now conducted its proceedings and heard all the testimonies in camera. The transcripts of the Commission’s proceedings have not been published. The Commission’s position is that only after the final report is presented to the government will it decide whether to publish those parts of the transcript that may be disclosed without harming the security of the state or other protected interests. The petition before us is directed at the commission’s position.

The main facts and the sequence of events

1.    On 12 July 2006, following terrorist operations carried out by the Hezbollah organization, in which eight IDF soldiers were killed and two others were kidnapped to Lebanon, fighting began in the north and this continued until 14 August 2006 when a ceasefire came into effect in accordance with decision no. 1701 of the Security Council of the United Nations (hereafter: ‘the Second Lebanon War’ or ‘the war’).

On 17 September 2006 the Government of Israel decided to authorize the Prime Minister and the Minister of Defence to appoint a government commission of investigation under s. 8A of the Government Law, 5761-2001 (hereafter: ‘the Government Law’), to examine the conduct of the political and defence establishments during the war. It was decided that the president emeritus of the Tel-Aviv-Jaffa District Court, Judge E. Winograd, would chair the commission (hereafter: ‘the Winograd Commission’ or ‘the Commission’). In the letter of appointment the Commission was authorized to determine findings and reach conclusions as to the readiness and conduct of the political and security establishment ‘with regard to all the aspects of the war in the north.’ The Commission was also authorized to recommended, in so far as it saw fit, ‘any improvement for the future decision-making processes of the political echelon and the heads of the security establishment, including the materials and advice given to the aforesaid authorities.’ The letter of appointment further determined that the Prime Minister and members of the cabinet, civil servants, IDF and security establishment personnel would appear before the Commission at its request and would provide any information and documents that they would be asked to present. The Commission was given powers of a commission of inquiry under ss. 9 to 11 and 27(a) of the Commissions of Inquiry Law, 5729-1968 (hereafter: ‘the Commissions of Inquiry Law’ or ‘the law’). With regard to the publicity of the Commission’s work, the government determined in its decision — and an identical stipulation was also included in the commission’s letter of appointment — the following:

‘F.          The commission shall present its report or reports to the prime minister and the Minister of Defence and they will bring them before the government. The report or reports of the commission shall be published; the commission may determine guidelines with regard to publication of the reports in accordance with the principles in section 20 of the Commissions of Inquiry Law, 5729-1968.

G.           The commission shall determine its procedure and its work schedule. The commission’s sessions shall be public or closed to the public as the commission shall decide.

No public proceedings shall take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

 

2.    On 30 November 2006 an expanded panel of this Court denied by a majority two petitions directed in principle against the Government’s decision to establish a government commission of investigation rather than to order the establishment of a state commission of inquiry in order to examine the conduct of the political and security establishments during the war (HCJ 6728/06 Omets v. Prime Minister [1]). An application to hold a further hearing on the subject of the aforesaid petitions was also denied (HCJFH 10030/06 Movement for Quality Government in Israel v. Prime Minister [2]).

The Winograd Commission began to hear testimony on 4 October 2006 and since then has heard dozens of witnesses. All the witnesses were heard in camera. On 29 November 2006 — approximately two months after the Commission began to hear the testimonies — the petitioner, MK Zahava Gal-On, submitted a request to Judge Winograd that the Commission should open its sessions to media coverage and publish the transcripts of the testimonies, with the exception of the parts whose publication would almost certainly cause serious harm to the security of the state. On 30 November 2006 Judge Winograd replied to the petitioner’s request as follows:

‘You are doubtless aware of the fact that most of the subjects in the commission’s deliberations include state secrets. Until now, although the testimonies of the witnesses also included matters that are not classified, the vast majority was classified, and therefore the disclosure of the testimonies to the general public has not been possible.

We are aware of the issue of “the public’s right to know,” and we consider this right in every case against the security of the state and the need to protect its secrets, which in our opinion — and I am convinced that this is your opinion also — should take precedence.

In the government decision that appointed the commission it is stated that the sessions of the commission shall be public or closed to the public, as the commission shall decide. In any case where it is possible, the session will be public…’

It should be noted that on 3 December 2006 — several days after judgment was given denying the petitions against the establishment of the Winograd Commission (Omets v. Prime Minister [1]) — the commission made a statement to the media. This statement said, inter alia, that —

‘The commission will continue its work in an attempt to examine what it had been asked to examine and to provide a quick, thorough and appropriate response to the many issues before it. Naturally most of the testimonies and sessions will be classified. In so far as it will be possible without harming the security of the state, sessions and testimonies will be held in public.’

3.    On 9 January 2007 — more than five weeks after Judge Winograd’s reply — the petitioner filed the petition before us. In the petition, the petitioner requested this Court to order the Winograd Commission (1) to hold its sessions and the hearing of the testimonies before it in public and, (2) to publish the transcripts of its deliberations at the end of each session, except when ‘there is a near certainty of real, serious and grave harm to the security of the state.’ On 17 January 2007 this Court, per Justice Levy, issued an order nisi to the respondent to reply to the petition, and the application for an interim order was denied. Justice Levy added in his decision that —

‘It seems to me that the commission would do well if, until this court decides the petition, it limits itself to hearing testimonies that need to be heard in camera for reasons of state security or that may be privileged by virtue of an order prohibiting publication, in accordance with the principles that have been laid down and explained in case law…’

When the petition was filed, the Winograd Commission was close to completing the stage of hearing the preliminary testimonies before publishing an interim report. After it finishes hearing these testimonies, the Commission intends to present an interim report to the government that will contain an open part that will be published and a privileged part that will not be. Counsel for the state told us that the Commission cannot definitively say the date on which the interim report will be presented but emphasized that we are not speaking of many months, but rather of a relatively early date.

The arguments of the parties

4.    In the petition and also in her pleadings before us, counsel for the petitioner, Advocate D. Holz-Lechner, discussed the centrality of the public’s right to know and  the importance of this principle in the democratic process and in safeguarding basic rights. According to her, the proceedings before the Winograd Commission concerning the conduct of the political and defence establishments during the Second Lebanon War is of great public importance since the matter concerns human lives and public security. She argued that the public is entitled to as much information as possible with regard to the acts, omissions, achievements, and failures that accompanied fighting in which the public suffered injuries and losses on both the battlefront and on the home front. The petitioner further argued that the public’s right to know is only overridden when  there is an almost certain likelihood that a disclosure of the information will cause severe, grave, and serious damage to the security of the state. According to the petitioner, from Judge Winograd’s reply on 30 November 2006 and from the statement to the media published on 3 December 2006, it can be seen that the Commission is of the opinion that the security of the state takes precedence over the public’s right to know.  According to the petitioner in forming this opinion the Commission did not give proper consideration to  the degree of probability that a security risk will occur and did not specifically examinethe extent of the harm involved in publishing the proceedings for each individual testimony. According to her argument, the fact that all the testimonies until now have been heard by the Commission in camera undermines the force of the principle of the publicity of hearings and the public’s right to know, and makes this violation a sweeping, arbitrary, and disproportionate one.

According to the petitioner’s approach, the Commission is not entitled to decide that its proceedings will be held in camera whenever there is any concern relating to state security. Rather,  in each session and with respect to each testimony  the Commission should examine the extent of the harm to state security while also considering the likelihood that such harm will occur. The argument is that a proper implementation of these rules will lead to the conclusion that most of the Commission’s proceedings will be open to the public and that the transcripts of the Commission’s sessions and of the testimonies given before it will be published as close as possible to the date on which they were given. The petitioner further argued that in matters concerning the publicity of the Commission’s proceedings and the publication of the transcripts of its proceedings, the powers of the Commission that were determined in the government decision and the letter of appointment should be interpreted in the spirit of ss. 18 and 20 of the Commissions of Inquiry Law. It was also argued that the anticipated publication of the non-classified parts in the interim report and the final report of the Winograd Commission does not compensate for the disproportionate violation of the public’s right to know, since the report presents a processed version of the information and the conclusions draw from it. By contrast, publication of the testimonies that are heard by the Commission before it presents its report to the government will allow the public to form its own impression, with a maximum degree of transparency, of the way in which the commission came to its conclusions. Publication as aforesaid will also encourage public debate and reveal additional information that was not brought before the Commission and that may be relevant to the matters being examined by it.

In reply, counsel for the state, Advocate A. Helman, argued that the order nisi should be cancelled and that the petition should be denied. In his reply, he said that ‘the respondent accepts that in this case the criteria for the publicity of the respondent’s proceedings are similar, in principle, to those of a state commission of inquiry.’ In the hearing before us, counsel for the state agreed that the general norm that is applicable in this matter is derived from the principle of publicity of proceedings and the public’s right to know. But he argued that this norm is not absolute and should be balanced against competing interests. In this regard, counsel for the state indicated two main reasons why the proceedings of the Winograd Commission have until now been held in camera and the transcripts of its sessions have not been published. The main reason is the public interest of protecting the security of the state. According to this argument —

‘… the commission became aware at the beginning of its work that all the testimonies that are being heard by it also include very classified and sensitive material — to a greater or lesser degree — which is a consequence of the subject being examined by the commission, the identities of the persons and officials who are summoned to testify before it and the matters that the commission is seeking to investigate and on which it wishes to confront the witnesses. In these circumstances, the commission is of the opinion that there is no practical possibility of determining ab initio that a certain testimony will not include classified material, whether in the course of the witness’s statement or in his reply to questions that the witness will be asked during his testimony’ (para. 12 of the state’s reply).

Counsel for the state confirmed in his pleadings that the testimony of witnesses who appear before the commission ‘also includes matters that are not of a classified nature.’ He However, he claimed that there is an inherent difficulty in distinguishing in advance between the parts whose disclosure is permitted and the parts whose disclosure is prohibited, and therefore it is necessary to hear the testimonies in their entirety in camera. For this reason, the Commission has until now not held a session that was open to the public.

With regard to the balancing test between the public’s right to know and the security of the state, counsel for the state argued that where it concerns  the question of the publicity of the Winograd Commission hearings, the strict test of ‘near certainty’ to which counsel for the petitioner referred in her pleadings does not apply. The proper test is one of publicity ‘that may endanger the security of the state’ as stated in the Commission’s letter of appointment. Notwithstanding, it was argued that even if the strict test as claimed by the petitioner does apply in the matter before us, there is an almost certain danger that publication of ‘the vast majority of the testimonies’ will result in serious harm to the security of the state.  This is because of the nature of the matters being investigated by the Commission and the identity of the persons being interrogated by it, and because of the sensitivity inherent in the fact that the Commission is supposed to address in its recommendations the lessons that should be learned for the future. Counsel for the state emphasized in his arguments that the way in which Israel conducted the war and the lessons that should be learned for the future as a result of the manner in which the fighting was carried out, are matters that if disclosed to the public, will very seriously harm the ability of the State of Israel to fight the next war in the best possible manner, and will thus seriously endanger the security of the state.

The second reason for holding the proceedings of the Commission in camera concerns the public interest in having the work of the Winograd Commission carried out efficiently, quickly, and properly, so that the Commission can recommend to the government as soon as possible the lessons and improvements that should be implemented. This issue was raised by counsel for the state, as he put it, ‘beyond what is strictly necessary.’ According to him, the hearing of the testimonies in public will significantly prejudice the ability of the witnesses to testify freely, openly, and frankly before the Commission with regard to the conduct of their superior officers and comrades-at-arms. Moreover, hearing the testimonies in public will significantly harm the proper management of the investigation since the witnesses will be able to prepare themselves for the testimony in a manner that will make it difficult for the Commission to arrive at the truth. Counsel for the state further argued that opening the proceedings to the public would make it necessary to stop the investigation whenever the reply of a witness to a question, or the question itself, concerns a classified matter, and that this would disrupt and prolong the investigations. With regard to the publication of the transcripts of the Commission’s sessions at the end of each day of the proceedings, it was argued that if the Commission needs to consider which parts of the transcript may be published on a daily basis, it would slow down the Commission’s work and impair its efficiency. It was also argued that publication of the transcripts of the testimony before the Commission would require the relevant security personnel to review them, and that these people may be subordinate to some of persons being investigated by the Commission. For these reasons, it was argued that the proper time for making the security examination of the transcripts of the testimonies that the Commission is considering is only after the Commission presents its final report to the government.

In view of all the reasons set out above, counsel for the state argued that we should not intervene in the Commission’s position that, as a rule, its proceedings take place in camera, and that the transcripts of these sessions are not to be at this time According to counsel for the state, this position is reasonable in view of the manner in which two former state commissions of inquiry conducted themselves when they investigated events that occurred during a time of war. These were the Agranat Commission of Inquiry regarding the Yom Kippur War, where all of the proceedings were held in camera in accordance with a government decision, and the Kahn Commission of Inquiry regarding the Beirut Refugee Camps, where most of the sessions were also conducted in camera. According to the state’s approach, the harm to the public’s right to know in this case is proportional in view of the fact that the Commission will make parts of the interim report available to the public, and the fact that the final report will be presented to the government, and in view of the fact that after the final report is presented to the government the Commission will decide whether to publish those parts of the transcripts that do not involve any harm to the security of the state, its foreign relations, or other protected interests. Counsel for the state further stated that publication of parts of testimonies before the Commission’s report is published will not significantly further the public’s right to know since such testimonies alone are likely to present a partial and distorted picture. In view of all this, counsel for the state argued that the Commission’s position is reasonable and the court should not intervene in it.

Deliberation

The principle of the publicity of proceedings and its application to the Winograd Commission

5.    Section 8A of the Government Law, by virtue of which the Winograd Commission was appointed, determines the powers of the government commission of investigation. This section does not address the question of the publicity of the proceedings before such a commission of investigation. Notwithstanding, the issue was expressly addressed in the letter of appointment that the Winograd Commission received from the Prime Minister and the Minister of Defence in accordance with the government’s decision of 17 September 2006. As I said above, paragraph G of the letter of appointment provides that:

‘The commission’s session shall be public or closed to the public as the commission shall decide. No public proceedings shall take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

It follows from this that the Government left the question of the publicity of the Winograd Commission’s proceedings to the discretion of the Commission, although it saw fit to emphasize that no public proceedings should take place when doing so might endanger the security of the state or another protected interest.

Defining the character of the Winograd Commission as a body is complex. It is a public authority that was set up by law by the executive branch and it exercises quasi-judicial powers; the Commission’s character as an administrative body and its quasi-judicial powers are characteristics that affect the norms that apply to it. There is no doubt that the discretion given to the Commission on the subject of the publicity of its proceedings is not absolute. None of the parties before us disputes that the Commission as a public authority is liable to exercise its discretion reasonably, after considering all of the relevant factors and giving proper weight to each of them in accordance with the basic principles of our legal system. As we shall clarify later, since the Commission is a body that has been given quasi-judicial powers, the commission should give considerable weight to the principle of the publicity of proceedings when it decides whether to hold the sessions at which it hears evidence in camera. As a public authority it should also give considerable weight to the general norm of the duty of disclosing information in its possession, when there is no legal reason to prevent its disclosure.

6.    This Court has on many occasions in the past discussed the elevated status and the great importance of the principle of the publicity of proceedings that take place before it. What has been said in case law with regard to the publicity of proceedings is also pertinent with regard to proceedings that are taking place before a body with quasi-judicial powers, such as the Winograd Commission. The premise is that the publicity of the proceedings contributes to improving the quality of the decision that is made at the end of the process. The assumption is that the critical eye of the public may ‘eliminate any possibility that the judicial process may be influenced by bias and prejudice’ (CrimA 152/51 Tripos v. Attorney-General [3], at p. 23). In addition, the publicity of proceedings in a judicial proceeding or a quasi-judicial proceeding contributes to a strengthening of public confidence in public authorities, in general, and in the body that is hearing the matter, in particular. By means of the publicity of the proceedings, justice is not only done but is also seen to be done, and this prevents the impression that the law is administered in secret and according to hidden criteria (see the remarks of Justice Arbel in HCJ 11793/05 Israel News Co. Ltd v. State of Israel [4], at paras. 13-15 of her opinion and all of the references cited there; see also LCrimA 5877/99 Yanos v. State of Israel [5], at pp. 109-112).

The principle of the publicity of proceedings is also based on the public’s right to know and the duty of disclosure that governs a public authority. The public’s right to receive information concerning the manner in which public authorities operate allows them to be subjected to public scrutiny.— a scrutiny that is one of the cornerstones of democracy. This reasoning has found expression in the Freedom of Information Law, 5758-1998 (hereafter: ‘the Freedom of Information Law’), which gives every citizen and resident a right to receive information from a public authority, subject to the exceptions and reservations listed in the law. To this, we should add that the realization of the public’s right to know by disclosing to the public the manner in which the public authority operates allows the public to determine its agenda and helps individuals in society decide their positions by means of an open discussion of the problems and by a free exchange of opinions on the basis of the information that is published (on the public’s right to know, see AAA 9135/03 Council for Higher Education v. HaAretz Newspaper Publishing [6], at paras. 8-9 of the opinion of Justice Hayut; AAA 6013/04 Ministry of Transport v. Israel News Co. Ltd [7], at para. 12 of the opinion of Justice Rivlin).

It has been said in the case law of this Court that the principle of the publicity of proceedings has two aspects: one is that the hearing is held in open court, so that every member of the public is entitled to be present; the other is the permission to publish the content of the proceedings as part of the public’s right to know. It has also been said that today the main importance of the principle of the publicity of proceedings lies in the second aspect which concerns the possibility of publishing the fact that the proceedings are being held and the content of the proceedings, and thereby bring these to the attention of the public as a whole (see Yanos v. State of Israel [5], at p. 112).

7.    The centrality of the principle of the publicity of proceedings in our legal system has received express recognition in legislation and has even been enshrined in a Basic Law. Section 3 of the Basic Law: Judiciary and s. 68(a) of the Courts Law [Consolidated Version], 5744-1984 (hereafter: the Courts Law) provide the rule that ‘The court shall hear cases publicly.’ This principle has also been determined with regard to commissions of inquiry. Thus s. 18(a) of the Commissions of Inquiry Law provides that ‘A commission of inquiry shall hold public hearings…’.  It should immediately be said that this is not a strict rule, and that the provisions of the aforesaid laws contain exceptions to the principle of the publicity of proceedings, which we shall address later.

As we have said, the Government Law, by virtue of which the Winograd Commission was established, is silent  with regard to the publicity of the proceedings before a government commission of investigation. Prima facie a question may arise as to whether the rule concerning the publicity of proceedings applies to the proceedings of every commission of investigation that is appointed under the Government Law, or whether we should not speak of a strict rule since the matter requires the consideration of each individual commission in accordance with its circumstances. We do not need to decide this question in the circumstances of the case before us because the Winograd Commission is not an ‘ordinary’ government commission of investigation. In Omets v. Prime Minister [1] this court discussed how, in view of the character and scope of the issues that the Winograd Commission was authorized to examine, the government saw fit in the letter of appointment to give the commission additional mandates and powers that are not listed in the Government Law. This was done in order to allow the commission to investigate in depth an issue of national significance and importance, namely the fighting that took place in Lebanon. The commission was given, inter alia given some of the main powers of a state commission of inquiry under ss. 9-11 of the Commissions of Inquiry Law — the powers to summon witnesses and to compel them to testify or to produce documents. The Commission is also governed by ss. 14 and 22 of the Commissions of Inquiry Law by virtue of the provisions of s. 8A(c) of the Government Law, with regard to the status of those testimonies. In Omets v. Prime Minister [1] the state also agreed that the Winograd Commission should be subject to a similar arrangement to the one provided in s. 15 of the Commission of Inquiry Law that gives anyone who may be harmed by the Commission’s conclusions the right to state their case.  and in practice the representative of the state declared that the Commission was competent to issue ‘warning letters’ and to make recommendations with regard to specific persons like a state commission of inquiry. In practice, it is possible to interpret the position of the state in Omets v. Prime Minister [1] as that the Winograd Commission is similar in character to a state commission of inquiry, differing only in terms of  the party that appointed it.

Section 18 of the Commissions of Inquiry Law, which provides the rule that the proceedings of a state commission of inquiry should be held in public, does not apply directly to the Winograd Commission. But in its pleadings before us, the government agreed that the criteria concerning the publicity of the proceedings of the Winograd Commission are essentially similar to those of a state commission of inquiry, in view of the special character and the scope of powers of commission under discussion (see para. 31 of the respondent’s reply). Indeed, the Winograd Commission is considering issues of paramount public importance and interest. All of these factors affect the weight of the principle that the proceedings should be held in public and that the public has a right to know about the commission’s proceedings. Therefore, it is proper that the general principle concerning the publicity of the proceedings, which is also enshrined in s. 18 of the Commissions of Inquiry Law, should govern the Winograd Commission. It would appear that the Commission has indeed taken the aforesaid principle into account. In Judge Winograd’s letter to the petitioner of 30 November 2006, he says that ‘In any case where it is possible, the session will be public.’ The statement to the media on 3 December 2006 also says that ‘In so far as it will be possible without harming the security of the state, sessions and testimonies will be held in public.’ Therefore the premise for the continuation of our deliberations is that, in so far as possible and in the absence of any impediment for reasons of the security of the state, the proceedings of the Winograd Commission should be held in public.

The principle of the publicity of proceedings versus the security of the state

8.    The principle that proceedings should be held in public, like the basic rights that underlie it, is not absolute. There are cases where it needs to yield to conflicting rights and interests. Under s. 3 of the Basic Law: Judiciary, it is possible to violate the principle that judicial proceedings should be conducted in public only by virtue of an express provision of statute or by means of an order of the court that is made in accordance with statute. Section 68 of the Courts Law and ss. 18, 20 and 23 of the Commissions of Inquiry Law list the exceptions that allow all or some of the proceedings in a certain matter to be held in camera or subject to a prohibition against publication. Inter alia, it is provided that an order may be made to this effect if it is required ‘in order to protect the security of the state.’ It should be stated that even s. 9(a)(1) of the Freedom of Information Law provides that a public authority shall not provide information ‘whose disclosure gives rise to a concern that the security of the state will be harmed…’. As we have said, these provisions of statute do not apply directly to the Winograd Commission. But even the petitioner does not dispute that the exception with regard to protecting the security of the state applies to the Commission’s proceedings, and that in appropriate circumstances it is capable of justifying the holding of sessions in camera and of justifying the prohibition against publication of the content of the matters brought before the commission.

The two values under discussion — state security on the one hand and the publicity of proceedings and the public’s right to know on the other — are basic values in our legal system. ‘Without security the state cannot survive, and the social consensus on which it is built cannot exist. Thus the freedoms of the individual which the state is supposed to uphold will cease to exist. This shows the centrality of the value of security among all the values of the legal system’ (per Justice Barak in HCJ 680/88 Schnitzer v. Chief Military Censor [8], at p. 629 {92). But without holding proceedings in public and realizing the public’s right to know, the character of our democratic system, which is based on a free exchange of ideas and on public confidence in the state authorities and the propriety of their actions, may be undermined (see para. 6 above). A proper balance, therefore, needs to be struck between the aforesaid two values when they clash ‘head on.’ The balancing formula should realize the value of state security, but at the same time minimize, as much as possible, the violation of the principle of holding proceedings in public and the freedom of information, which are important values in our legal system.

The dispute between the parties before us concerns the proper formula for balancing the values under discussion. According to the petitioner, only when there is a concern that amounts to a near certainty of serious and grave harm to state security are there grounds for violating the principle of the publicity of proceedings by holding the commission’s proceedings in camera. By contrast, counsel for the state argued that the balancing test proposed by counsel for the petitioner is too strict. According to him, the test of ‘near certainty of serious and grave harm to state security’ was determined in the case law of this court in circumstances of a possible conflict between protecting the freedom of speech and safeguarding the security of the state, and that this test does not apply when we are dealing with the publicity of proceedings. The question whether the case law balancing formula between the freedom of speech and state security also applies in the context of a conflict between the publicity of proceedings and state security has not yet been decided in our case law and it has no easy answer. On the one hand, the freedom of speech is one of the reasons underlying the publicity of proceedings and the public’s right to know, as discussed earlier. On the other hand, the freedom of speech is not the only reason for the principle of publicity of proceedings. There are other values that underlie it, and we should consider how these are to be balanced against state security. Moreover, there are circumstances in which holding proceedings in camera serves additional public interests that are not merely matters of state security but also ensure the fairness of judicial proceedings and the possibility that in them we will arrive at the truth. In such circumstances, it is possible that there is a basis for a different fundamental balance than the one indicated by counsel for the petitioner. These questions do not require a decision in the circumstances of this case since counsel for the state was prepared to assume, for the purposes of the proceedings before us, that because of the character of the issues being examined by the Winograd Commission, the fundamental balancing formula argued by counsel for the petitioner does apply.

Whatever the balancing formula may be, there is no doubt that the outcome of the balance between the publicity of proceedings and state security cannot be decided in advance since it depends upon an assessment of the extent of the harm to security and of the likelihood that such harm will occur. Therefore, the result of the proper balancing point is determined by the circumstances and merits of each case. It should be emphasized that in view of the importance of the principle that proceedings should be held in public, a general and sweeping assessment of the danger to the security of the state based on the general nature of the issues under discussion will not suffice. In this context, a concrete and specific examination of the circumstances of the case should be made in order to decide whether there is a justification for departing from the rule that proceedings should be held in public.

From general principles to the specific case — the proceedings of the Winograd Commission

9.    The petition before us was filed after a considerable delay, which influences the application  of the criteria in the circumstances of this case. Originally, the petitioner applied to Judge Winograd with a request to open the proceedings of the Commission to the public and to publish the transcripts of the sessions almost two months after the testimonies began to be heard. The petition to this court was filed more than five weeks after Judge Winograd’s reply was received. These delays have resulted in the vast majority of the testimonies have already been heard by the Commission. At this stage, the hearing of testimonies has ended, that is unless the committee sees fit to allow another round of testimonies before examining recommendations concerning specific individuals.

The relief that the petitioner sought in the petition was of two kinds: first, to order that the proceedings of the Winograd Commission and its hearing of the testimonies to be held in public; and second, to order the publication of the transcripts of the commission’s proceedings at the end of each session. With regard to the first relief, since the petition was filed after the vast majority of the testimonies were heard by the Commission, the question of hearing them in public is no longer relevant. As we have said, it is possible that there remain additional testimonies that will be heard at the next stage of the Commission’s proceedings. From Judge Winograd’s letter to the petitioner of 30 November 2006, it appears that ‘in every case’ the Commission considers the publicity of the proceedings and the public’s right to know, as opposed to  state security and the need to protect its secrets. According to the position presented by the chairman of the Commission in this letter, we assume that the Commission will be mindful of the criteria set out above, and that it will make its decisions concerning the holding of proceedings in camera on an individual basis with regard to each of the testimonies that it may hear.

It should be noted that in his pleadings before us, counsel for the state discussed the inherent difficulty in distinguishing ab initio between parts of testimony that are expected to be heard by the Commission that may be disclosed and parts that must be heard in camera. In this context, I think it right to point out that if there are circumstances in which the vast majority of the testimony may be disclosed, there is no basis for holding the whole testimony in camera. In view of the great importance of the principle of holding proceedings in public, a distinction should be made ab initio between the part that may be disclosed, which should be heard in public, and the classified part, which is the only part that should be heard in camera. The more complex cases — which apparently characterize most of the testimonies being heard by the Commission — are those in which the main testimony is expected to be classified but is interspersed with parts that may be disclosed. In such circumstances, the Commission should make an effort to distinguish ab initio between the various parts, and to hold proceedings in public on the parts of the testimony that may be disclosed. But when the parts that may be disclosed are few and incidental to the classified parts of testimony, the advantage in separating the different parts of the testimony for the purpose of holding proceedings in public may be marginal, and the whole testimony may be heard in camera.

Counsel for the state went on to point out that the Winograd Commission is not prepared to allow persons who testify before it to make a ‘statement to the media’ at the beginning of their testimony in a hearing which then continues in camera. Two reasons are given for this position. First, the person testifying before the Commission has the possibility of giving interviews to the media and to say whatever they wish to say. Second, allowing the possibility of such ‘statements’ conflicts with the desire to conduct the proceedings of the Commission professionally and efficiently and to complete its work as quickly as possible. We see no reason to intervene in the Commission’s reasoning in this matter. We assume that the Commission will be mindful of the rule concerning the publicity of the proceedings and will allow the hearing of testimonies — or at least parts of them — in public, in circumstances where there is no legal impediment according to the criteria set out above.

It should be noted that in support of his arguments counsel for the state sought to rely on the manner in which state commissions of inquiry operated in the past when considering similar issues to those being considered by the Winograd Commission, including when the proceedings before them were alleged to be classified. In this respect, it should be stated that in the case of the Agranat Commission a blanket order prohibiting any publicity regarding its proceedings was imposed by a government decision that was originally made in accordance with s. 23 of the Commissions of Inquiry Law.  By contrast, in the case before us the Winograd Commission was given complete discretion. With regard to the proceedings of the Kahn Commission, these were mostly classified, but proceedings that were open to the public, at the commission’s discretion, also took place. Indeed, the manner in which the commissions operated in the past shows that an investigation of military operations that involves making recommendations naturally does not allow full disclosure of the evidence before the commission for reasons of state security. But no conclusion should be drawn from the examples in the past that the Commission is exempt from the application of the principle that proceedings should be held in public, and, as we have said, the Commission is obliged to hold proceedings in public if there is no impediment to this on grounds of state security.

10. The second relief that is sought in the petition concerns the publication of the transcripts of the Commission’s hearings. In his written pleadings, and also before us, counsel for the state confirmed that the testimonies that were heard by the Winograd Commission include parts that are not classified and that may be published under the law. The essence of the dispute between the parties concerned two matters. First, he parties disagree with regard to the scope of the material that may be disclosed to the public: whereas counsel for the petitioner is of the opinion that there is no reason why most of the material heard before the commission should not be published, the state argues that most of the testimonies may not be published. Prima facie the state’s position appears reasonable. The nature of the subjects being considered by the Winograd Commission, the identity of the persons appearing before it, and the sensitivity of the information being considered by it may lead in most cases to the existence of an almost certain danger of harm to the security of the state if the information that is revealed in the Commission’s hearings is published. Notwithstanding, this does not exempt the Commission from the need to examine the transcripts in detail in order to publish those parts that may be disclosed under the law. In this regard, a general assessment made at the outset is insufficient; it is necessary to make a detailed examination. As we have said, an examination should be made for each testimony to see whether there is a justification for prohibiting publication of what was said in it. In this context, there may be a difference between an examination made before the event and an examination made after the event.  With regard to testimony before it has been heard by the Commission, there is in many cases an inherent difficulty in distinguishing between the parts that may be disclosed and the parts that are classified.  When the examination is made after the event — after the testimony is given — distinguishing between the aforesaid parts may be done more easily.

The main disagreement between the parties concerns the date of publication of the parts of the Winograd Commission transcripts that may be disclosed. Section 8A of the Government Law and the letter appointing the Winograd Commission do not address this issue, apart from the statement in paragraph H of the letter of appointment, which says: ‘When its work is completed, the commission shall deposit all the transcripts of its proceedings and all the material that was brought before it in the state archives.’ It should be noted that paragraph F of the letter of appointment, which discusses the publication of the commission’s reports, refers to ‘the principles in section 20 of the Commissions of Inquiry Law.’ Section 20(c) of the aforesaid law provides that ‘The commission may, if it sees fit to do so, publish the transcript of its proceedings, or any other material relating to its work, in whole or in part.’ From this we see that the Commission was given discretion with regard to the question of the publication of the transcripts of hearings that took place before it and also with regard to their date of publication. As we clarified above, the Commission should exercise its discretion reasonably and give proper weight to all of the relevant factors.

In the hearing before us, counsel for the petitioner requested that the transcripts should be published as soon as possible after they are made. Counsel for the state, however, argued that in the Commission’s opinion the proper time for making a security examination of the testimony transcripts is only after the Commission presents its final report to the government. Two reasons were given for this. First, it was argued that if the Commission is compelled now to examine the parts of the transcript proceedings that may be publishe that this would hold up the Commission’s work and undermine its efficiency. Second, it was argued that publication of the transcripts at this time would require the matter being referred to security personnel who may be subordinate to some of the persons being investigated.

We should say immediately that the aforesaid reasons raised by counsel for the state are not convincing. In our remarks above, we discussed the great importance of holding proceedings in public and of the public’s right to know. We said that the flow of information is a condition without which people cannot form their opinions and that it is an essential condition for upholding democracy. ‘Only in this was can he [the citizen] adopt for himself as independent an opinion as possible on those questions that are at the top of the social and political agenda, which must ultimately be decided by him, by virtue of his right to elect the organs of the state’ (per Justice Landau in HCJ 243/62 Israel Film Studios Ltd v. Geri [9], at p. 2415 {217}). ‘The democratic system of government is nourished by — and also depends upon — a free flow of information to and from the public with regard to the main issues that affect society and the individual’ (per Justice Shamgar in HCJ 1/81 Shiran v. Broadcasting Authority [10], at p. 378). This is certainly applicable in this case given the national importance and great public interest raised by the issues being considered by the Winograd Commission. Moreover, our case law holds that the duty of an authority to make available to the public the information in its possession, when there is nothing in the law that prevents this, allows public scrutiny and that this principle derives from the status of the authority as a trustee that holds the information in trust for and on behalf of the public as a whole (see the remarks of Justice Rivlin in Ministry of Transport v. Israel News Co. Ltd [7], at paras. 11-13 of his opinion; see also the remarks of Justice Hayut in Council for Higher Education v. HaAretz Newspaper Publishing [6], at paras. 8-9 of her opinion and the references cited there). In view of all this, if the transcripts of the Winograd Commission hearings contain parts with regard to which there is no legal impediment that prevents their disclosure to the public, it is not reasonable to delay the publication of the material until the final report is presented. It may be assumed that it is possible to find reliable and experienced persons who will be made available to the Commission for the purpose of carrying out the security check required in order to identify the material that may be disclosed.

The argument of counsel for the state that publication of the material before the final report is presented will disclose to the public partial and distorted information is likewise rejected. If the transcripts contain material that may be disclosed under the law, the information should be published, and we should not say that it is better for the public that the publication should be postponed to such a remote date. In this regard we emphasize that if and when the Commission decides in the future to summon witnesses under caution, the relevant information will in any case be disclosed to them. At this stage, the ‘judicial’ aspect of the Commission’s work takes precedence over the ‘investigative’ aspect. In such circumstances, there is no concern that the publication of parts of the transcripts before the Commission’s final report is presented will disrupt testimonies or seriously undermine the proper work procedures of the Commission. We, therefore, assume that the Winograd Commission will exercise its discretion in accordance with what we have said above, and in accordance with its professed position in the letter of the Chairman of the Commission and its statement to the media, and that the Commission will take steps to publish the parts of the transcripts whose disclosure is permitted within a reasonable time, before the final report is presented to the government.

11. In summary, since the petition was filed after the vast majority of the testimonies had already been heard by the Commission, the question of the hearing of those testimonies in public is no longer relevant. It is possible that there are more testimonies that will be heard at a later stage of the commission’s deliberations. The pleadings of counsel for the state show that the Commission does not dispute that the rule that proceedings should be held in public applies to it. The Commission can be presumed to be conducting  itself in accordance with the criteria set out above and to examine the question whether all or parts of the testimonies may be given in public. With regard to the publication of the transcripts of the Commission’s hearings, the Commission will take into account the principles discussed above, and it is presumed that it will take steps to publish the parts of the transcripts that may be disclosed within a reasonable time and before the final report is presented to the government.

In view of all of the aforesaid and subject to what is stated in para. 11, the order nisi should be cancelled.

 

 

 

Vice-President E. Rivlin

I agree.

 

Justice A. Procaccia

I agree with the opinion of my colleague President D. Beinisch. If I see a need to add some remarks, it is in order to support, strengthen and emphasize what I think needs to be emphasized and highlighted.

1.    According to the constitutional outlook that prevails in the Israeli legal system the principle that proceedings should be held in public has a supreme status. The publicity of proceedings is a part of the duty of disclosure that lies at the heart of democracy. The aim of disclosure is to guarantee a free flow of information on subjects of public importance that affect the individual and society as a whole. A free flow of information, opinions and outlooks is an essential condition for a healthy democracy. Only in this way is it possible to ensure, on the one hand, the ability of the individual to influence the government’s actions by means of data and information that are required for this, and only in this way is the public given a means of scrutiny whereby he may examine the propriety of the actions of government bodies (HCJ 1601/90 Shalit v. Peres [11], at p. 364 {219-220}). A free flow of information on matters that concern the public is one aspect of the value of freedom of speech that lies at the heart of a free society, which includes not only the right to express oneself and make oneself heard and seen, but also the right to know, hear and see (HCJ 14/86 Laor v. Film and Play Review Board [12], at p. 433; HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Central Elections Committee for Sixteenth Knesset [13], at pp. 71-72). Alongside the freedom to express oneself and utter opinions, beliefs and ideas there is the right of the public to know about the complex actions of the government and the activity of public authorities; this is the other facet of freedom of speech, without which we cannot have a proper constitutional system that protects human rights and ensures the propriety of the activities of the government. The exposure and disclosure of information that is important to the public are prerequisites for the existence of public scrutiny and examination, whereas concealing and covering up such information screens and obscures deviations from public norms and makes it difficult to expose them and to recommend corrections where they are needed. The principle that proceedings should be held in public derives its force from the public’s right to know about the actions of the government and its agencies; holding discussions and judicial proceedings in the public eye also guarantees the fairness of the investigation and the quality, standard and seriousness of the decision made at the end of the proceeding. Openness increases public confidence in government authorities and the bodies who examine and scrutinize their actions. The principle that proceedings are held in public achieved statutory constitutional status in s. 3 of the Basic Law: The Judiciary  (see CA 2800/97 Lipson v. Gahal [14], at p. 718; HCJ 6005/93 Eliash v. Israel Bar Association [15], at p. 161; CrimApp 5153/04 A v. Yediot Aharonot Ltd [16], at p. 938; LCA 3614/97 Avi-Isaac v. Israel News Co. Ltd [17], at pp. 45-47; and recently CrimA 11793/05 Israel News Co. Ltd v. State of Israel [18], at paras. 13-16 (per Justice E. Arbel)). The principle that proceedings should be held in public is a basis element of judicial activity in the Israeli courts. It is an established principle in the Administrative Courts that try disputes in which a public authority is involved (s. 25 of the Administrative Courts Law, 5752-1992). The principle that proceedings should be held in public also applies as a basic principle of the legal system to quasi-judicial bodies. The principle of administrative disclosure and publicity also applies in general to the activity of government authorities that have an executive function, even though the principle of disclosure in the executive and administrative spheres may take a different form to the one that is found in the judicial or quasi-judicial sphere; ‘Indeed, administrative publicity is a basic principle in a democracy. It allows the public not only to plan its course of action, but also to develop a dialogue with the administration, which includes the scrutiny of its actions’ (I. Zamir, Administrative Power (1996), at p. 924). Indeed —

‘Proper government acts in the light of day, in the open, and thus it exposes itself to constant scrutiny and therefore also to the correction of corrupt courses of action’ (LCrimA 1127/93 State of Israel v. Klein [19], at p. 516 (per Justice M. Cheshin)).

An expression of the outlook of administrative publicity and the duty of disclosure that governs public authorities can be found in the Freedom of Information Law, 5758-1998, which gives every Israeli citizen or resident a right to receive information from a public authority in accordance with the provisions of the law (s. 1). Even before the Freedom of Information Law there existed a principle that documents of public authorities are available to anyone who has an interest in the matter. A refusal to disclose them imposed on the public authority a burden of explaining and justifying its refusal (CA 6926/93 Israel Dockyards Ltd v. Israel Electric Co. Ltd [20], at p. 796). The principle of disclosure was extended in the past, before the enactment of the law, to administrative bodies such as internal professional audit bodies; even though their deliberations are usually not open to the public, their conclusions are likely to be subject to disclosure (LCA 1412/94 Hadassah Medical Organization v. Gilad [21]).

2.    The principle of disclosure and publicity is not absolute. Like every constitutional norm, the degree of protection afforded to it is not unlimited. Thus there may be restrictions upon the realization of the norm and the scope of the ability to realize it. The scope of protection given to the constitutional norm is limited by the principles that determine the proper balance between it and important conflicting interests to which the law gives a special status. The principle of the publicity of proceedings, as a part of the value of the freedom of speech, is subject to restrictions in the spirit of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty (HCJ 3434/96 Hoffnung v. Knesset Speaker [22]; EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [23]). The principles of the limitations clause demand that in order for a violation of a constitutional norm to be recognized as legitimate, it should originate in a statute that befits the values of the state, it should be intended for a proper purpose and it should satisfy the requirement of proportionality.

3.    Case law has held that where there is a clash between the principle of publicity and conflicting interests, ‘the principle of the publicity of proceedings retains a preferential status of a supreme right’ (Lipson v. Gahal [14], at p. 719). A clear and unambiguous provision of statute is required in order to restrict or qualify the publicity of proceedings rule (Eliash v. Israel Bar Association [15], at pp. 168-169, 170; CA 5185/93 Attorney-General v. Marom [24], at p. 342; Lipson v. Gahal [14], at p. 719). Even when there is such a provision of statute, it should be interpreted in accordance with the principles of the limitations clause, and especially in accordance with the principle of proportionality therein. This means that the principle of publicity will prevail unless the restriction of publicity satisfies the limitations tests, and especially that it should be of an extent no greater than what is required,  (CrimA 353/88 Vilner v. State of Israel [25], at pp. 450, 451; Lipson v. Gahal [14], at p. 719; Avi-Isaac v. Israel News Co. Ltd [17], at p. 66). The restrictions upon the publicity of proceedings are always interpreted narrowly (LA 176/86 A v. B [26], at p. 499; CrimApp 2794/00 Aloni v. State of Israel [27], at p. 369).

Publicity and disclosure are therefore the rule. Privilege and secrecy are the exception. Since the exception constitutes a restriction upon a constitutional norm, its application in a manner that violates the norm is conditional upon preconditions that mainly concern a proper purpose and proportionality.

4.    In various contexts legislation contains restrictions upon the publicity of proceedings. These qualifications include the protection of the security and foreign affairs of the state (s. 68(d)(1) and (2) of the Courts Law [Consolidated Version], 5744-1984; s. 25(b)(1) of the Administrative Courts Law, 5752-1992).

5.    A state commission of enquiry that acts by virtue of the Commissions of Inquiry Law, 5729-1968, is required to hold its proceedings in public and to publish its report (ss. 18(a) and 20(a) of the law). Alongside the publicity of proceedings principle and the duty of disclosure that govern the commission, the law lists exceptions to the publicity and disclosure rule, which include matters of state security. But according to the principles of the legal system, since the principle of publicity is the rule and secrecy is the exception, the commission of inquiry is required to make its proceedings open to the public and to publish the details of its activities unless, for weighty reasons that satisfy the constitutional requirement of proportionality, one of the exceptions listed in the law should be applied. The principle of publicity in a state commission of inquiry is particularly important, because a state commission of inquiry is charged with inquiring into a matter ‘of essential public importance’ that requires investigation (s. 1 of the Commissions of Inquiry Law). Such a commission is usually established where there is a crucial public need to investigate a matter of particular importance that is subject to disagreement, which not infrequently gives rise to deep public emotion and distress. The purpose of a commission of inquiry is to restore public confidence in the government and the persons running it. Re-establishing public confidence in society — which is one of the main purposes of a state commission — depends upon there being openness, disclosure and publicity in the proceedings of the commission to the greatest extent possible. Openness helps the public trust the fairness of the proceedings of the commission and accept its conclusions out of a belief in the integrity of its criteria and the objectivity of its motives. Publicity in the work of a commission of inquiry removes any concern of political bias or favouritism in the commission’s work and leads to greater public confidence in its activity (A. Klagsbald, State Commissions of Inquiry (2001), at pp. 23, 213; A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel (vol.2, ‘Government Authorities and Citizenship,’ 2005), at pp. 1028, 1040-1041).

6.    Naturally commissions of inquiry are sometimes appointed to examine particularly sensitive security matters t or special matters of state, and these require secrecy. In circumstances such as these, when we are speaking of an essential public need of great significance that satisfies the proper purpose and the requirement of proportionality, a commission of inquiry is authorized to decide to apply the exception to the rule of publicity and to restrict opening the proceedings of the commission to the public and disclosing the information and the material submitted to it and the transcripts prepared by it where necessary and to the required degree.

7.    It is important to emphasize that even where there may be an exception to the publicity of the proceedings of a commission of inquiry, whether for security or other reasons, the balance between applying the principle of publicity and the need for resorting to the exception thereto should be made very carefully, and its implementation is required with regard to each element and each stage of the commission’s proceedings: the guiding principle is publicity, disclosure and exposure, and the exception is confidentiality and secrecy, which will apply only where it is necessary — where it is a ‘necessary evil.’ A sweeping preliminary decision that all the proceedings of the commission will be secret and that all the material that arises in its sessions will be classified seriously undermines the principle of publicity and is inconsistent with the requirements of the law. The commission should therefore examine, in so far as it can before the event, every testimony and every procedural stage that takes place before it on an independent basis, in order to decide whether it may be disclosed to the public or whether there is no alternative to making it privileged. Only in this way will the principle of publicity be properly realized, while upholding the proper balance between it and other essential public interests (Klagsbald, State Commissions of Inquiry, supra, at p. 215).

8.    The commission of investigation under s. 8A of the Government Law, 5761-2001, namely the Winograd Commission, was appointed to investigate the events of the war in the north with regard to a very broad range of issues, as can be seen from government decision no. 525. The letter of appointment that defines its powers authorized it to examine the conduct of the political echelon with regard to the war from political, military and civilian perspectives; it also requested an examination of the preparations  of the defence establishment, including questions of readiness for war, preparation of intelligence, conduct of the war, activation  of forces, etc.. The commission was given interrogation powers under ss. 9 to 11 and 27(b) of the Commissions of Inquiry Law, which concern powers to interrogate witnesses. These powers were given to the commission by virtue of s. 8A(a) of the Government Law. In view of the breadth and depth required when examining the subject of the war, the government supplemented what was lacking in the powers of the commission of investigation under s. 8A of the Government Law by giving the commission additional powers and authority, which it set out in the letter of appointment; thus, for example, it ordered the publication of the commission’s reports (para. F of the letter of appointment), it authorized persons to collect material (para. J of the letter of appointment) and following an opinion of the attorney-general it adopted the mechanism of sending warnings under s. 15 of the Commissions of Inquiry Law, which constitutes a condition for making personal recommendations. This opinion was given against a background of the similarity between a state commission of inquiry and a commission of investigation, and according to the state —

‘As a rule, in the absence of a special reason to deviate from this, a similar arrangement to the one set out in section 15 of the Commissions of Inquiry Law should be adopted in this case, with the  scope of the right to state one’s case in each specific instance being determined by the commission, according to the circumstances of the case’ (para. 49 of the state’s reply in HCJ 6728/06 Omets v. Prime Minister [1].

With regard to the aspect of the publicity of proceedings, the letter of appointment determined that ‘The commission’s sessions shall be public or closed to the public as the commission shall decide.’ It was also determined that ‘No public proceedings will take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

9.    In the wording of the letter of appointment, the government therefore regarded the commission of investigation as a body of a similar nature to a state commission of inquiry, and it acted to make the powers and authority of the commission of investigation as similar as possible to those given to a commission of inquiry acting in accordance with the Commissions of Inquiry Law. This purpose of equating the two types of commission is not surprising in view of the fact that the commission of investigation for examining the war in the north was set up to examine a matter ‘of essential public importance’ that requires clarification, in the sense that this expression is used in s. 1 of the Commissions of Inquiry Law, and it is only natural that the government sought to equip such a commission with the powers given to a commission of inquiry in order to enable it to carry out the complex task with which it was charged. The similarity between the powers of the Winograd Commission and the powers of a commission of inquiry is what was used by the state as its main justification in reply to the argument raised against it in Omets v. Prime Minister [1], according to which the government erred when it appointed a commission of investigation to examine the war in the north, when it had the power to appoint a commission of inquiry, with the characteristics and powers given to it in the law.

10. The close similarity between the Winograd Commission and a state commission of inquiry from the viewpoint of the character and scope of the matters requiring examination and their public significance and from the viewpoint of the scope of investigative powers given to it leads to the conclusion that even though the publicity of proceedings provision in the Commissions of Inquiry Law does not apply directly to the Winograd Commission, the publicity of proceedings principle applies to its proceedings to a similar degree as it applies to a state commission of inquiry. This is the necessary conclusion from the general application of the principle of publicity to quasi-judicial bodies as one of the basic principles of the legal system, and in view of the subject of the investigation and its broad public significance, together with the broad scope of the powers given to the commission of investigation and its status as a quasi-judicial body. The nature of the matters being considered by the commission of inquiry and their broad public scope, as well as the need to ensure public confidence in the way in which the commission conducts its investigations and reached its decisions, make it necessary to apply the rule of publicity, with its exceptions, to its proceedings in the usual manner that this is done with regard to a state commission of inquiry. Any other result would be inconsistent with the basic principles of the legal system and might even frustrate the main purpose for which the commission was set up — restoring public confidence in the army, the defence establishment and the government. Once the rule of publicity applies to the commission of investigation, the exceptions to the rule will also apply, in the same vein as those set out in the Commissions of Inquiry Law.

11. I should also point out that the application of the principle of publicity to the commission of investigation does not conflict, in my opinion, with the wording of paragraph G of the letter of appointment, according to which:

‘The commission’s sessions shall be public or closed to the public as the commission shall decide. No public proceedings shall take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

Against the background of the principle of publicity which is one of the foundations of the legal system, it is possible to interpret what is stated in the letter of appointment as giving the commission of investigation discretion as to when to depart from the principle of publicity in its proceedings and to order them to held in camera, but this discretion is supposed to be exercised subject to the accepted principles of the legal system. There is no inherent contradiction between the wording of the letter of appointment in this regard and general principles, and the aforesaid provision should be interpreted in a way that is consistent with basic concepts as aforesaid.

12. The conclusion that arises from the aforesaid is that the Winograd Commission is subject to the principle of publicity, with its exceptions, and everything that derives from them, in the same way as the principle applies to a state commission of inquiry. In a commission of investigation publicity is therefore the rule; state security, or any other recognized reason for secrecy that reflects a weighty public interest is the exception. The principle of publicity has broad application. The exception only applies when circumstances require, it is for a proper purpose and it is not excessive.

13. The practical application of these principles leads to the conclusion that the Winograd Commission has a duty to allow the content of its proceedings and the material presented to it to be disclosed to the maximum degree possible without harming the security purpose or any other national interest of the highest importance. Only a real concern of harm to a public interest of special importance will justify a departure from publicity and the duty of disclosure and will allow proceedings in camera or a prohibition against publishing material and reports that were brought before the commission or will be issued by it.

14. Investigating matters concerning the War may naturally make it necessary to make some or even most of the proceedings and the material before the commission privileged for security reasons. But the commission has a duty to examine the need for making its proceedings classified for each testimony and for each hearing that is going to take place before it. The commission is not supposed to decide in advance that its proceedings will be subject to a blanket prohibition against disclosure. When determining the framework of the prohibition against disclosure, it should act on the basis of a premise of disclosure and publicity, and regard a prohibition against holding proceedings in public or disclosing information as an exception that should be applied narrowly and sparingly, and only in cases where it is necessary.

15. As the President of the court explained in her opinion, upholding the principle of publicity in the proceedings of the commission will realize the principle of the freedom of information and disclosure in the proceedings of the commission within the framework of the permitted limits. Applying the aforesaid principle will expose the proceedings of the commission to important public scrutiny and will ensure public confidence in its proceedings, as well as its decisions and conclusions. This is consistent with the nature of the subject that the commission was asked to examine as a matter of paramount public importance. It is also consistent with the broad scope of the powers given to the commission, which makes it very similar in this respect to a state commission of inquiry.

16. Since the state agreed, in principle, with the aforesaid analysis, I agree with the president’s conclusion that it is not required to make the order absolute in the current circumstances, since it can be presumed that the commission of investigation will act in accordance with the principles set out in this judgment, and that it will exercise its discretion in accordance with the criteria set out herein, which are based on the fundamental principles of our legal system.

 

 

Petition denied.

18 Shevat 5767.

6 February 2007.

 

H.C.J 1/48

 

HERMAN NEIMAN

 v.  

1)    THE MILITARY GOVERNOR OF THE OCCUPIED AREA OF JERUSALEM

2)    THE CHIEF MILITARY PROSECUTOR

 

 

In the Supreme Court sitting as the High Court of Justice

[September 29, 1948]

Before: Smoira P., Olshan J. and Cheshin J.

 

 

            Military Court jurisdiction - Who is a soldier - Military offender no longer a soldier when charge filed.

           

                The Petitioner, while employed by the Army as a civilian employee, assaulted a soldier and committed other acts constituting criminal offences under both military and civil law. After he had ceased to be so employed, the Petitioner was charged before a military court. He sought an order restraining the military court from proceeding with the charges on the grounds that he was not at the relevant time a soldier within the meaning of the Army Code, 19481) or alternatively that he had ceased to be a soldier when charged and that a military court therefore had no jurisdiction in the matter.

               

                Held, that the Petitioner had been a soldier within the meaning of the Army Code, 1948, when he committed the acts in respect of which he was charged, but that at the time such charges were filed he had ceased to be a soldier, and that a military court did not have jurisdiction to try such a person.

           

Palestine Case referred to :

(1)        H.C. 143/44 -  Tatjana Spiwak (Bauer) v. Kvutzat Kfar Hamakabi.

                                    Tatjana Spiwak (Bauer) v. Captain Jacob Bauer and another; (1945) 2 A.L.R. 472.

 

English Case referred to:

(2) Dawkins v. Lord F. Paulet, (1869) L.R. 5 Q.B. 94.

 

Frank for the Petitioner;

Spaer for the first Respondent;

H. H. Cohn, State Attorney, for the second Respondent.

 

SMOIRA P., giving the judgment of the court :

 

            On September 16, 1948, an order nisi was issued by this court against the first respondent, the Military Governor of the occupied area of Jerusalem as the representative of the Minister of Defence of the State of Israel, and against the second respondent, the Chief Military Prosecutor, to show cause why they should not be restrained from placing the petitioner, Herman Neiman, on trial before a Military Court, and why they should not withdraw the charges that have been preferred against the petitioner in the Military Court of Jerusalem.

 

            The facts in the case before us are not in dispute.

           

            The petitioner is forty-six years of age and therefore not liable to conscription. He has never sworn allegiance to the Defence Army of Israel. He was employed in the Engineers Corps of the Army during the months of June and July, 1948. As from August 1, 1948, he was no longer employed in the Army. On September 5, 1948, the petitioner was summoned - with others - to appear on an indictment before the District Court of the Defence Army of Israel in Jerusalem. The indictment, which is dated August 18, 1948, contains six charges against the petitioner. As is stated in the indictment, a copy of which is annexed to the petition, these are not offences of a military nature, being offences under various sections of the Criminal Code Ordinance, 1936, such as assault, threat of violence, unlawful arrest, malicious injury, and abuse of office.

           

            According to the particulars of the first charge, the petitioner, on or about July 12, 1948, unlawfully assaulted Walter Yalski, who was then enlisted for part-time service in the Army. The remaining charges relate to acts which were done on the same day against the same person. The petitioner was charged before the Military Court pursuant to section 97 of the Army Code, 1948.1)

 

            The questions which arise in the case before us are questions of law alone, and the submissions of the petitioner and of the respondents are shortly as follows :

           

            The petitioner submits:

           

(1)   He has never been a soldier according to the Army Code, 1948.

 

(2)   Even if be had been a soldier, be ceased to be one on August 1, 1948, and he is not liable, therefore, to be tried by a Military Court.

 

            The first respondent submits that he ought not to be made a party to this petition at all.

 

            The second respondent submits:

 

(1)   The petitioner must submit to the jurisdiction of the Military Court since, on the day of the commission of the offences, he was a soldier acting within the framework of or as an agent of the army.

 

(2)   The High court of Justice cannot intervene in this matter because :

 

a)     No injustice has been caused to the petitioner;

b)    The interests of the public and of good government demand that the petitioner be brought before a Military Court and not before a Civil Court;

c)     The petitioner has an alternative remedy - to appear before a Military Court and argue before that court that it has no jurisdiction.

 

            We have heard many general submissions from both parties as to the relationship between the Civil and Military Courts, the advantages to be gained from appearing before the Military Courts on the one hand and, on the other, the rights of the citizen to be tried by ordinary courts. We have no intention, however, of deciding the matter on first impression.

           

            In our opinion the answer to the question raised by this petition is to be found in the basic provision contained in Article 38 of the Palestine Order in Council, 1922, as amended in 1935. We have no doubt that this provision, with which the Part on "Judiciary" in the Order in Council opens, is still in force today, by virtue of section 11 of the Law and Administration Ordinance, 1948. The text of Article 38 reads as follows:

           

"Subject to the provisions of this part of this Order or any Ordinance or rules, the Civil Courts hereinafter described and any other Courts or Tribunals constituted by or under any of the provisions of any Ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine."

 

            The principle which flows from this provision is that the Civil Courts exercise jurisdiction over all the inhabitants of the State, and according to Proclamation I of the Defence Army of Israel Command in Jerusalem - which is deemed to be in force as from May 15, 1948 - the Law of the State of Israel is made to apply to the occupied area of Jerusalem (section 2 of the Proclamation). In order to exclude a resident from the jurisdiction of the Civil Courts and render him subject to special Courts, special legislation is required. Such special legislation is to be found in the Emergency (Army Code 1948) Regulations, 1948 (Official Gazette No. 20 Supplement 2). These regulations were made by the Minister of Defence by virtue of the powers conferred upon him by section 9 (a) of the Law and Administration Ordinance, 1948, and there is no appeal before us against the legality of these regulations. These regulations lay down, inter alia, the legal organisation of the army, its composition and its powers, the principles to be applied in regard to offences and punishment - of a special type for soldiers - and include, in section 97, a provision in regard to a soldier who commits an offence punishable by the general criminal law. It is under this provision that the petitioner is charged in the indictment before the Military Court.

 

            And this is the text of section 97:

           

"Any soldier who, within the framework of the army or by reason of his belonging to the army, has committed an offence punishable under the general criminal law which is in force or will be in force in the State from time to time, and whose belonging to the army, does not expressly relieve him from liability for such offence, may be tried for such o fence by a Military Court and shall be liable to the same punishment as that to which he would be liable in the general courts."

 

            The first question is whether the petitioner was a soldier at the time of the commission of the offences with which he is charged.

           

            The definition of "soldier" is found in section 2 of the Army Code, 1948, and is as follows: -

           

"'Soldier' means any man or woman who has been accepted into the army under army regulations from time to time, and also includes any person who has acted from time to time in the framework of the army, or its agent, and also includes any person who is under a duty to enlist in the army or in the services associated with the army, even if such person has not been accepted into the army as aforesaid."

 

            Mr. Haim Cohn, the State Attorney, who appeared on behalf of the second respondent, does not contend that the petitioner was accepted into the army under army regulations. Mr. Cohn also admitted before us that the petitioner is not subject to the duty of enlistment in the army or in the services associated with the army. His contention is that the petitioner acted on July 12, 1948, within the framework of the army and also as agent of the army. The words "from time to time" in the definition of the word "soldier" - Mr. Cohn argues - introduce an element of impermanence, and there is therefore no need for permanent service. The expression "framework of the army" is, says Mr. Cohn, an extremely wide one. The word "framework", he contends, must not be given an etymological but a colloquial interpretation. A person need not actually be in the army in order to be within its framework - any person who is in lawful association with the army is within its framework. The question is whether the association between the person and the army is one which introduces him or his activities into the framework of the army. The petitioner was a hired employee of the army, and his receipt of a salary does not exclude him from its framework, for the army is composed not only of active soldiers but also of other persons including those who work for a salary, such as army doctors and judges. The expression "agency of the army" is, so it is argued: even wider than "framework", since such agency does not even demand any lawful association between the person and the army. These are the submissions of counsel for the second respondent.

 

            As against these arguments Dr. Frank, counsel for the petitioner, has made the following submissions:

           

            The petitioner did not act within the framework of the army or as its agent. In interpreting the expression "soldier" in section 2 of the Army Code, Dr. Frank directed our attention to section 176, sub-sections 9 and 10 of the English Army Act of 1881, in terms of which persons who are not soldiers but who are employed by the army are subject to Military law only if they are on active service, an expression defined in section 189 of that statute. Dr. Frank intended to prove the extent to which the English legislature has restricted the category of those who are subject to military Law. The immediate answer to this argument is that proof of such a restricted interpretation cannot be furnished by the English Statute since we are bound by the definition of a "soldier" in the Army Code, 1948, and that definition contains no such restriction.

           

            An act done by a soldier within the framework of the army, Dr. Frank submits, is one that results from an order given by the State or by the army. A person who performs some activity in the army as a contractor for a wage and as an official on a salary is one who works under a contract and not on the basis of an order given or compulsion exercised by the State or the army. A person falls within the framework of the army, Dr. Frank submits, only when the army gives him orders as one of its members, and not when he works under a special contract for a salary. In any event, says Dr. Frank, if the regulation defining the expression "soldier" is not clear, there is a presumption that the civil courts have jurisdiction, and in a case of doubt the decision will be in favour of such jurisdiction.

           

            The distinction referred to, which Dr. Frank wishes to introduce in interpreting the expression "soldier", is worthy of consideration. We are of the opinion, however, that, on the contrary, the legislature wished to widen the limits of the expression "soldier" as far as possible by introducing into that definition, as a category, any person "who has acted from time to time in the framework of the army, or as its agent". We think that the legislature, in framing the definition as it did, succeeded in extending the limits of the expression "soldier", and we do not agree with the submission that the receipt of a wage excludes a person from the framework of the army.

           

            The definition of "soldier" in section 2 contains three categories:

           

(a)    the first category mentioned "any man or women who has been accepted into the army under army regulations from time to time" - refers to ordinary soldiers;

 

(b)   the third category "any person who is under a duty to enlist in the army or in the services associated with the army, even if such person has not been accepted into the army as aforesaid" - refers to those who in fact are not yet soldiers, but who are ordered to become and are about to become soldiers, and who are liable to be punished, for example, for offences such as feigning illness, or wilful maiming, under section 90 of the Army Code, 1948 :

 

(c)    The second category includes just those people who have not been accepted into the army under army regulations and who are not about to be accepted into the army because of their duty to enlist, but those who work from time to time in the framework of the army or as agents of the army, such as the petitioner in the present case.

 

            It is worthwhile pointing out, moreover, that in order that a person should be included in the first category, it is a condition precedent that he should be accepted into the army under army regulations. In order that a person should be included in the third category it is a condition precedent that he should be under a certain duty, namely, the duty of enlistment. In order that a person should be included within the second category there is no condition precedent at all. The very fact of his working within the framework of the army or as its agent brings him by definition into the category of "soldier", without any reference to the element of the desire or duty which led him to work Within the framework of the army.

 

            In regard to this point, therefore, we accept the submission of the State Attorney, counsel for the second respondent, that the petitioner was a "soldier" until the end of the month of July.

           

            The second question which arises is whether a person who was a soldier at the time of the commission of the offence but who has ceased to be a soldier, may still be charged before a Military Court. It is not disputed that on the date mentioned in the indictment, namely, August 18, 1948, the petitioner was no longer a soldier. Counsel for the second respondent submits, however, that the fact that the petitioner was a soldier at the time that he committed the offence on July 12th is sufficient to permit his being tried before a Military Court under section 97.

           

            Mr. Cohn relied upon three grounds in support of this submission .

           

            His first ground was that it is a recognised principle that a person cannot, by a change in status, be relieved from a duty which was imposed upon him before that change. Mr. Cohn cited examples from Family Law, such as marriage obligations and the obligations of maintenance after proselytisation. We cannot accept this ground. This case is not concerned with an attempt to escape from an obligation. The question is one of the jurisdiction of courts, and is not similar to the matters cited before us by Mr. Cohn.

           

            Mr. Cohn's second ground was that the Army Code, 1948,must be interpreted with reference to all its sections. Mr. Cohn admitted that the position of offenders who have ceased to serve in the army is not dealt with in the Code, but he submitted that it was the intention of the Code that they should be subject to the jurisdiction of a Military Code also after their discharge from the army. A hint to this effect, Mr. Cohn argues, is to be found in section 18 of the Code. We can find nothing in that section - which deals with the general jurisdiction of a District Military Court within the legal machinery of the army - which is an authority on the question before us, namely, whether the determining factor is the time of the commission of the offence, or the time of filing of the indictment with the Military Court.

 

            Mr. Cohn also referred to sections 32 and 371) of the Code dealing with the confirmation of judgments. In these sections the words "judgments against those who are not soldiers" are to be found. Here too we cannot find a reply to the question before us in these sections. It is impossible to base the jurisdiction of the court on words such as these in a section dealing with an entirely different subject. Not only that, but an interpretation of the words "judgments against persons who are not soldiers" may be found in section 28 which includes among those against whom an accusation may be brought, an "army institution", that is to say, an accused which is not a soldier.

            Section 58 of the Army Code1) the chapter containing which bears the caption "Supremacy of Military Courts" also adds nothing to the solution of our problem. This section merely shows that a soldier may be tried in Military Courts even if he has already been tried once before for the same offence in another court. It is impossible to conclude from this provision that the jurisdiction of Military courts also extends to citizens who are not soldiers.

           

Sections 164 to 166 of the Army Code,2) which deal with prescription and lay down the Period of prescription as from the date of the commission of the offence, provide no solution to the problem with which we are faced.

 

            The third ground relied upon by Mr. Cohn in regard to the interpretation of section 97 is based upon section 158 of the English Army Act of 1881. That section provides that if a person has committed an offence under military law at a time when he is subject to that law, and if he thereafter ceases to be subject to that law, he may still be tried before a Military Court within three months from the date that he ceased to be subject to military law - save in the case of a few serious felonies in regard to which this limitation of time does not apply. Mr. Cohn attempted to argue that this Law of 1881 limited the period in which it was still possible to try a person who had ceased to be a soldier in a military court, and that according to English common law there was no limitation of time whatsoever in regard to this possibility. The authorities cited to us by Mr. Cohn from English Law in regard to this question, such as Dawkins v. Lord Paulet (2), in fact contain no solution of our problem, and Mr. Cohn stated frankly in the course of his argument before us that he found it necessary to abandon his submission based upon English common law. It is sufficient, in fact, to consult Dicey on Constitutional Law, which was referred to by Mr. Cohn, in order to realise that the principle of the supremacy of the ordinary Civil Courts is woven like a golden thread throughout the whole of the chapter in Dicey dealing with the army. At page 303 (eighth edition) he says : "The general principle on this subject is that the Courts of Law have jurisdiction to determine who are the persons subject to Military Law, and whether a given proceeding, alleged to depend upon Military Law, is really justified by the rules of law which govern the army. Hence flow the following (among other) consequences. The Civil Courts determine whether a given person is or is not 'a person subject to military law'."

 

            We are prepared to find some assistance in section 158 of the English Army Act, 1881, but in favour of the petitioner and not in favour of the respondent, for this section shows that the English legislature found it necessary to lay down by a specific provision that a person remains subject to military law for a certain period even after he has ceased to be a soldier. The Army Code, 1948, on the other hand, contains no parallel provision, and reading section 97 of that code literally, we are obliged to interpret it to mean that only a soldier - that is to say, a person who is still a soldier - may be tried before a military court for an offence which he committed within the framework of the army or by reason of his belonging to the army. In regard to this point, therefore, we accept the submission of the petitioner that since he ceased to be a soldier on August 1, 1948, he ceased from that date to be subject to the jurisdiction of the military court.

 

            There remains the final argument of counsel for the second respondent that the High Court of Justice will not intervene in this matter since no injustice has been caused to the petitioner and the interests of the public and of good government demand that the petitioner be brought before a military court and not before a civil court, and that the petitioner has a legal remedy elsewhere. We cannot accept these submissions. The question before us is not whether an injustice will be done to the petitioner if he is arraigned before a military court. The rule is that every person is entitled to demand that he be tried before a competent court. In fact all the various constitutions of courts in different countries are extremely careful in defining the limits of jurisdiction. If, according to the rules laid down in the Code, an ordinary civil court is competent to try a person, and the authorities wish to arraign him before a special court, the accused is entitled to petition the High Court of Justice and to demand that it intervene in the matter.

           

            We appreciate what has been said by counsel for the second respondent, that it is the duty of the army and its court to root out criminals, whose offences - even if they are also offences under the general criminal law - are in fact offences against the efficient and proper administration of the army; that the army is interested in imposing order in its ranks and beyond its ranks; and that this is particularly so in a case such as that of the petitioner who is charged with assuming authority which he did not possess. But the general consideration such as this cannot take the place of a specific legal provision as to the jurisdiction of the courts. This is one of the basic principles of every ordered regime.

           

            We also cannot accept the submission that it was necessary for the petitioner to appear before the military court, present to that court a submission of want of jurisdiction, and attempt in that way to secure his remedy.

           

            Counsel for the second respondent cited to us a line of decisions of the High Court of Justice from the days of the Mandate in which the Court referred the petitioner to some other court in order to find his remedy there. One of the cases cited by him was Spiwak v. Hamakabii (1), in which the High Court of Justice refused to intervene because the petitioner, who was a litigant in the Rabbinical Court and argued want of jurisdiction, could have found his remedy in the Rabbinical Court of Appeals. We have some doubt as to the correctness of that decision. In any case, the situation in the matter before us is entirely different. The petitioner has not yet entered into the area of jurisdiction of a military court, and has petitioned us to decide that he is not obliged to be tried in such a court. Since we have reached the conclusion that the petitioner has ceased to fall within the jurisdiction of the military court, we must give him the remedy which he seeks.

           

            For all these reasons we have reached the conclusion that the order nisi must be made absolute. We have still to deal with the prayer of the first respondent that he be dismissed from the case. Counsel for the first respondent submitted that the Military Governor has no connection with the questions here discussed, that he has no attitude in the matter, and that he has neither the right nor is he under any legal duty in regard thereto. The Military Governor, so he submits, does not convene courts nor does he confirm their judgments. He has cited to us English authority and authorities of this court from the time of the Mandate in support of his contention. Since Dr. Frank, counsel for the petitioner, has stated before us that he joined the first respondent as representing the Minister of Defence on the basis of section 4 of the Army Code,1) but that he is interested in the question of jurisdiction alone and not in the number of respondents, and since we incline to the opinion that counsel for the first respondent is correct in his submission that the respondent adopts no attitude in this matter even as representative of the Minister of Defence, we make the order nisi absolute against the second respondent, the Chief Military Prosecutor, alone. In order that the matter should be clear we wish to emphasize that this decision is not intended to prevent the bringing of the charges in question before a competent court.

           

Order nisi made absolute against the second respondent.

Judgment given on September 29, 1948.

 

Crim.A. 126/62

 

           

ARYEH DISSENCHICK AND SHAUL HON

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal  Appeal

[February 20, 1963]

Before Sussman J., Landau J. and Berinson J.

 

 

Courts - Contempt of court - newspaper report on pending criminal trial - Courts Law, 1957, sec. 41(a)

 

The trial of one Rafael Blitz for murder stretched over a number of days. On the second day. a newspaper (of which the first appellant was the editor and the second appellant the responsible journalist) published a report which indicated that in answer to the charge defence counsel had pleaded not guilty before the accused could say anything. In the body of the article it was reported that before trial the accused had in fact admitted his guilt to a journalist, although it was noted that such admission not having been made in court was not binding. The appellants were charged with contempt of court and were convicted and fined. The appeal was against both conviction and sentence.

 

Held. Although the jury system does not exist in Israel, no one may try to prejudice the court, composed of professional judges, in a matter being heard by it. It was not necessary that the court should in fact have been influenced by a publication but enough that it or witnesses in the case might be. Freedom of expression is not absolute. It may not offend against the right to a fair trial and certainly not introduce matter not actually before the court. During the trial itself, only the bona fide publication of what was said or transpired in open court is permitted.

 

Israel cases referred to:

 

1.         H.C. 14/51 : Attorney-General v Z. Rotam and others (1951) 5 P.D. 1017.

2.     H.C. 73/53 : "Kol Ha'am" Co. Ltd. v Minister of the Interior (1953) 7 P.D. 871; S.J., vol I, 90.

3.     H.C. 243/62 : Israel Film Studios Ltd. v Levi Geri and others (1962) 16 P.D. 2407: S.J. vol IV, 208.

4.         Cr.A. 24/50 : Avraham Gorali v Attorney-General (1951) 5 P.D. 1145.

5.         C.A. 36/62 : Israel Ozri v Y. Galed and others (1962) 16 P.D. 1553; S.J., vol IV, 347.

 

English cases referred to:

 

6.         Hunt v Clarke (1889) 61 L.T. 343.

7.         R. v Duffy (1960) 2 Q.B. 188; (1960) 2 All.E.R. 891.

8.         Delbert-Evans v Davies & Watson (1945) 2 All.E.R. 167.

9.         R. v Clarke (1910) 103 L.T. 636.

10.       Re D.O. Dyce Sombre (1849) 41 E.R. 1207.

11.       R. v Gray (1900) 2 Q.B. 36.

12.       R. v Davies (1945) 1 K.B. 435.

 

Australian case referred tb:

 

13.       Ex parte Senkovitch (1910) S.R.N.S.W. 738.

 

Canadian case referred to:

 

14.       R. v Willis & Pople (1913) 23 W.L.R. 702.

 

American cases referred to:

 

15.       Pennekamp and others v State of Florida 328 U.S. 331 (1946).

16.       Bridges v State of California 159 A.L.R. 1346 (1941).

17.       Patterson v State of Colorado 205 U.S. 454 (1907).

18.       Schenk v U.S. 249 U.S. 47 (1919).

19.       Cantwell and others v State of Connecticut 310 U.S. 296 (1940).

20.       Abrams and others v U.S. 250 U.S. 616 (1919).

21.       Schaefer v U.S. 251 U.S. 466 (1920).

 

S. Levin for the appellants.

G. Bach, Deputy State Attorney, for the respondent.

 

SUSSMAN J.             The trial of Rafael Blitz, charged with murder under sec. 214(d) of the Criminal Code Ordinance, 1936, opened in the District Court on 5 November 1958. The hearing was adjourned to the following day but was not then concluded. The case continued to be heard on 9 November, 1 December and 3 December 1958. Judgment was given on 12 January 1959. When on 5 November 1958 Blitz was asked whether he admitted or denied the charge, he replied (according to the judge's notes) "I deny the charge."

 

2. On 6 November, 1958, the second day of the trial, the newspaper Ma'ariv carried a report by the second appellant, together with a picture of Blitz. The report bore the following caption: "BLITZ (TOMMY) ASKED - DEFENCE COUNSEL REPLIES" and beneath it "I DON'T ADMIT IT." The report began

 

"Rafael ("Tommy") Blitz had only to say three words yesterday when asked by the judges whether he admitted murdering Engineer Fiatelli near to the Zafon Cinema. Blitz stood tensely upright, open-mouthed - but before he could reply to the question, his counsel answered for him 'I don't admit it'."

 

This passage was emphasised by being printed in bold type. The report went on to say (in ordinary type)

 

"Blitz's gaze quickly turned from the judge to counsel. For a moment heavy silence reigned. Apart from Blitz himself, no one could know whether the negative answer was the one he had prepared to utter. Earlier, before the case began, he had given another answer to a question from a journalist. But that answer was not binding because it had not been given to the judges who judge a person on the evidence put to them. Since counsel's answer was decisive, the trial of Blitz therefore began."

 

3. The two appellants were charged under sec. 41 of the Courts Law, 1957, for writing and publishing this report, the second appellant as the writer and the first appellant as editor of the newspaper. They were convicted and fined IL. 200 each. They now appeal by leave of the District Court against judgment and sentence.

 

4. Sec. 41(a) of the Courts Law provides:

 

"A person shall not publish anything concerning a matter pending in any court if the publication is calculated to influence the course or outcome of the trial; however, this prohibition shall not apply to the bona fide publication of a report of anything that has been said, or has occurred, in an open session of the court."

 

            The District Court (per Judge Harpazi) found that the description of Blitz's behaviour in court along with the wonder of the writer as to what Blitz would have replied had counsel not intervened and said "I don't admit it", were protected by the end of see. 41(b), being a bona fide description of what occurred in an open session of the court. But the District Court found the two appellants guilty of an offence under see. 41 for that part of the report which stated that before trial Blitz had given a journalist an answer other than "I don't admit it." The court held that this information was calculated to influence the outcome of the trial both because of its effect on the judges who sat and heard the case against Blitz, and more seriously because of its effect on witnesses who had been summoned in the trial.

           

5. Mr. Levin for the appellants argued before us that the different answer of which the report spoke need not necessarily have been "I admit it". There was a variety of possible answers by a person standing criminal trial when asked whether he denies or admits the offence, such as "I admit the facts but not the offence".

 

            In my view this argument is groundless. The words in the report "Blitz had only to say three words yesterday," against the background of the headline of four words "I don't admit it", by themselves indicate that the three word answer Blitz "should" have given was "I admit it". Even if that is not so, the writer goes on to say that the trial began as a result of the fact that counsel's reply is decisive ("the trial ... therefore began") and "that answer (of Blitz himself to a journalist) was not binding." The emphasis on the causal connection between counsel's reply and commencement of the trial, in contrast to Blitz's own answer which would have made the trial superfluous had it been binding, shows clearly to the reader that the non-binding answer was "I admit it."

           

6. The second argument of appellants' counsel was that nothing in the report was calculated to affect the outcome of the trial. Mr. Levin directed us to the leading judgment of Witkon J. in Attorney-General v Rotam, (1) particularly to the observation in paragraph 16, and he

 emphasised the fact on which Witkon J. (in paragraph 13) and Agranat J. (at p. 1052) dwelt, that in this country where trial is before professional judges, the possible influence of newspaper publication is far less than it is in other countries where the facts are determined by a jury. Since I have reached the conclusion that the District Court was right in its decision that the report was likely to influence the witnesses, and thus also the outcome of the trial, 1 shall only derate brief words to this argument.

 

            I also think that our mode of trial which generally does not involve lay participation - I am not concerned with exceptional procedures such as in the municipal courts or rent tribunals - warrants a more liberal approach to publications touching pending court cases. The professional judge is accustomed to sift the grain in accordance with the law of evidence and to set out his reasons in writing. He is not likely to be affected by a publication to the same extent as a juryman who returns to the court room with the general answer of "guilty" or "not guilty", the reasons for which remain locked within his breast. Although the public may properly presume that a professional judge can largely rid himself of the influence of what he reads in the newspapers, it is not free, even as regards the judge, from the obligation not to try and create prejudice about a matter pending in court. There is no justification for the illusion that the judiciary is a precision machine which will produce the right factual conclusion in exchange for and required by the admissible evidence supplied to it. It is important to recall here what Justice Frankfurter said in Pennekamp v Florida (15) at p. 1042:

           

"Judges are also human, and we know better than did our forebears how powerful is the pull of the unconscious and how treacherous the rational process."

 

To weigh the evidence, to determine the credibility of witnesses, their powers of observation and their memory are among the most difficult of judicial tasks. They are more difficult than deciding the law, with our law faculties and teachers to instruct a person in the wisdom of the law before he becomes a judge. No one can teach the work of elucidating and establishing the facts. Each one of us learns that from his experience during his lifetime.

 

7. I shall therefore assume that the appellants are right in saying that the report was unlikely to influence the judges who sat in the case, that reading it the judges could avert their minds from it as they normally do from inadmissible evidence. Before I pass to the matter of the possible influence on witnesses, I must deal with a preliminary argument put by appellants' counsel. The hearing of Blitz's case began, as I have said, on 5 November 1958 and continued on the morning of 6 November, before the newspaper came out. Blitz had already admitted to the police ... that he had been at the scene of the crime and had even fired shots. At the trial, however, his counsel urged that also the police had fired shots when pursuing Blitz; it is possible therefore that Fiatelli was killed not by Blitz's shots but by one fired by the police. The question was, whose shot caused Fiatelli's death. In this regard, Mr. Levin argues the evidence of the prosecution was completely in by the time the paper came out at noon on 6 November.

 

            I cannot accept this argument. Blitz's trial did not end until 12 January 1959. Even after 6 November 1958 evidence was being taken. Whether or not the publication amounts to an offence does not depend whether it in fact influenced the outcome of the trial. Under see. 41 it is sufficient that it "is calculated to influence", that it could influence. That is the law not only in England: Hunt v Clarke (6), but also in the U.S.A. where the courts, in consequence of the First and Fourteenth Amendments (free speech and due process), tend to construe restrictively the rules of contempt of court: see Frankfurter J. in Bridges v California (16) at p. 1371.

           

            Generally it cannot even be said whether a publication has really influenced matters, and for this reason alone the guilt of the publisher is not to be made dependent on the outcome of the trial. The possibility of such influence is enough to cause injury to the integrity of judicial hearings and render doubtful whether justice has been done. The decision in a trial must rest on the foundation of the evidence adduced and taken openly. A trial influenced by invalid "external" hidden factors is not a judicial trial.

           

            In Patterson v Colorado (17) Justice Holmes dealt with the question of whether a newspaper publication proclaiming a witness a liar should be treated as contempt of court. I will return to the observations of the Justice in another connection. Here I am content to quote one sentence of his which explains the idea of the prohibition embodied in our see. 41:

           

            "The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court; and not by any outside influence, whether by public talk or public print."

 

            Furthermore, even after the appearance of the newspaper evidence was taken to prove that it was Blitz's bullet which caused Fiatelli's death, after Counsel had previously suggested the possibility of Fiatelli having been shot by a policeman. Inspector Zelinger who happened to be at the scene of the murder testified at the trial that he heard "about six shots" ... He was cross-examined by counsel for the defence and asked whether he was armed. He answered, no. He also denied that on leaving the cinema he fired warning shots. On 9 November 1958 the prosecution called three witnesses ... to controvert the argument of the defence, as above. Blitz admitted in the box to firing five shots. According to Zelinger's evidence there was only one other shot that might have killed. Defence counsel based his argument in summation on this fact: "Is there another possibility that one of the policemen who was on the spot wanted to harm Blitz." Hence the danger of adverse influence had not yet passed when the newspaper came out on 6 November.

           

8. As regards the question whether publication of the report was "calculated to influence the outcome of the trial" as provided in see. 41, Mr. Levin suggested putting the matter to the "clear and present danger" test, first adopted by this court in the "Kol Ha'am" case (2). His argument was that it is not enough that publication is likely to influence the outcome of the trial but that what is required is the probability that immediate damage will be caused.

 

            I find no foundation in the argument. In "Kol Ha'am" the question before the Court was in what circumstances the Minister of the Interior may exercise his powers under sec. 19(2)(a) of the Press Ordinance to suspend the publication of a newspaper. Sec. 19(2)(a) conditions that power on the publication of matter "likely to endanger the public peace." Agranat J. speaking for the Court, set a number of different grounds. One of them was the term "likely" used by the legislator, which is synonymous with "probable" or "that may reasonably be expected" (at p. 188). Another was the need to balance freedom of speech - and freedom of the press which is only a projection of that - as a fundamental right in a democratic regime against the duty of the government to safeguard public security, in face of which the right of the citizen may retreat only in exceptional cases; such exceptional cases are those in which "a clear and present danger" of a breach of the peace is manifested, according to Justice Holmes in the well-known case of Schenck v U.S. (18). Employing the same test, this Court recently decided whether the Film Censorship Board had lawfully used its power to forbid the exhibition of a film (Israel Film Studios Ltd. v Geri (3)).

 

9. I would think that this test is not appropriate in the case before us. There what was involved was the restriction of a right in the interest of public necessity, here it is the reconciliation of an interest which the public is concerned in preserving with another with which it is equally concerned. The invasion of freedom of speech because of the danger of a breach of public order, which is a sore evil only to be effected to the extent that it is essential, is unlike delimiting that freedom in order to do justice. The public interest in justice being done is no less a value than its interest in maintaining freedom of speech. In balancing the two, it is no less wrong to repress the one than it is to repress the other. In the one case future publication is prevented because of a "faulty" report published in the past, when future publication may well be faultless. In the other case, punishment is imposed for an offence committed by a past publication. In Attorney-General v Rotam (1) Agranat J. (at p. 1054) and Witkon J.(at p. 1029) drew attention to the fact that the U.S. Supreme Court applies the said test also to contempt of court, and in view of such authority the question calls for more basic examination.

 

10. The leading case in which the Court laid down "the clear and present danger" principle as a guide in determining whether a publication amounts to contempt of court was Bridges v California (16). Justice Black at the beginning of his judgment (speaking for the majority of five justices) stressed that the offence charged against the appellant was undefined by enacted law and that he was found guilty on the basis of a common law rule which in view of the trial court remained over from the time of British rule. Justice Black continued (at p. 1355):

 

"It is to be noted at once that we have no direction by the legislature of California that publications outside the court room which comment upon a pending case in a specified manner should be punishable. As we said in Cantwell v Connecticut (19), such 'declaration of the State's policy would weigh heavily in any challenge of the law as infringing constitutional limitations.' But as we also said there, the problem is different where 'the judgment is based on a common law concept of the most general and undefined nature'."

 

            I am not stating anything new in observing that freedom of expression is not an absolute right but is likely to come into conflict with other rights, and in such a conflict, there are occasions when the latter will prevail. As was said in Gorali v Attorney-General (4): "Everyone has the right of freedom of speech and freedom of expression, but exercise of the right is subject to restriction by law."

           

            Freedom of expression is not freedom to ridicule or licence to defame a person and commit an offence under sec. 202 of the Criminal Code Ordinance, 1936, or to do the injurious acts mentioned in see. 16 of the Civil Wrongs Ordinance, 1944: Ozri v Galed (5), neither can it justify the commission of any other wrong. In the present case, we are dealing with the charge of an offence against a Law recently enacted by the Knesset, that is, the matter has come before us, as Justice Black put it in Bridges (16) "encased in the armor wrought by prior legislative deliberation."

           

            The first question which presents itself when treating of a contemporary enactment is what is the situation involved. I cannot attach decisive importance to the fact that the offence of contempt of court emerged under absolute monarchy under which contempt of court is considered to be equivalent to contempt of the monarch himself. (See Nelles & King, "Contempt by Publication in the United States", (1928) 28 Col.L.R. 401, 525). We are not concerned here with a charge of offending the honour of the judges who heard the case and for this reason I shall not dwell on the question in what circumstances a publication of such a kind should be punishable. We are concerned with the publication of the admission of a crime uttered in the presence of a journalist, concealed by a denial in court of the charge. That constitutes interference with a case pending in court, an equivalent to passing the hearing of the charge from the court properly dealing with it to the public at large, invited to adjudicate on it according to information presented in a newspaper. A free democratic regime is also entitled to safeguard the integrity of judicial hearings, otherwise freedom and anarchy become synonymous. By literally prohibiting publication which "is calculated to influence the course or outcome of the trial", the Knesset has said that no one shall publish anything capable of influencing the course of a pending case. The term "calculated to " means only that the publication becomes "a special publication", as stated in the marginal title of see. 41, if it is of sufficiency to influence the case.

 

11. The course normally taken to establish the significance of some legal prohibition is to ask what is the mischief which it is sought to suppress. That is the key to correct interpretation. In the present case the answer is that the Law is intended to avoid, inter alia, the presentation of matters touching upon a case then being conducted which were not raised before the court dealing with it.

 

            Justice Holmes who coined the phrase "clear and present danger" in Schenck (18) died in 1935 and was not a member of the court that sat in Bridges (16) in 1941. But what he himself said in Patterson v Colorado (17) in 1907 can here be cited in support:

           

"A publication likely to reach the eyes of the jury, declaring a witness in a pending case a perjurer, would be none the less a contempt that it was true. It would tend to obstruct the administration of justice, because even a correct conclusion is not to be reached or helped in that way, if our system of trials is to be maintained ... What is true with reference to a jury is true also with reference to a court."

 

12.       The notion of freedom of expression or "free trade in ideas" as was said in Abrams v U.S. (20) is based on the consideration that in the course of expressing views without limit or restriction "the power of the thought" will eventually succeed "to get itself accepted in the competition of the market." Hence, to circumscribe competition is only justified in exceptional instances.

 

            Yet the doing of justice is no less important than freedom of expression and, as has already been explained, a fair judicial hearing necessitates that one should disregard the thoughts that have currency in the street. The facts are determined in court not by the competition in the market of views but by the evidence adduced in court in accordance with the law. Where the notion of "free trade in ideas" itself does not obtain with reference to a matter being judicially heard, why should the right of freedom of expression be honoured to the extent of it becoming a clear and present danger as it trespasses on to an area not its own and concerns itself with matters in which silence is best? (See Frankfurter). in Bridges (16) at p. 1367).

 

            Publicly to mention things concerning a case is restricted neither before the case opens nor after it is closed. Only during the hearing itself is a kind of moratorium placed upon public debate. The public may know what was said and what occurred in the court room, again without restriction under see. 41. But what public interest is served by publication of information that some defendant admitted a crime to a journalist? That is only liable to increase tension and satisfy sensation-seeking. Freedom of the press does not exist for this purpose. I have said that freedom of expression is not freedom to ridicule a person. I now add that neither is it freedom to trespass on the courts and deal with a person's guilt.

           

13. It is not superfluous to note that Agranat J. raised the question of the American test in Attorney-General v Rocam (1) in the special context of sec. 4 of the Contempt of Court Ordinance, and he emphasised the fact that notwithstanding the criminal nature of the act, the court did not deal with it under normal criminal procedure. The hearing was "summary". Being required "to show cause" the accused did not have the traditional right to remain silent and the court itself, and not only the Attorney-General, could commence proceedings. The said sec. 4 has been repealed and replaced by sec. 41 of the Courts Law, 1957, under which the proceedings follow the normal pattern; the accused is not required to show cause and the court does not act of its own motion. Even the term "contempt of Court" has been entirely abandoned.

 

14. Mr. Levin for the appellants relied on R. v Duffy (7) where Lord Parker posed the question whether a real risk had been created and not only a remote possibility of prejudicing a fair trial. I also agree that "a remote possibility" is not enough, since if the possibility of prejudice is too remote, then the publication is not "calculated to influence", it does not possess a sufficiency of influence on the trial. In Duffy a newspaper published an article about a man who was sentenced to five years' imprisonment on a charge of assault. Notwithstanding conviction, the case was still pending on account of an appeal having been lodged. Apart from the fact that the appearance of the defendant did not please the writer, the article itself only mentioned one thing, that a year before a detective had pointed a finger at him in a public house and had said that he would end up in the dock. What influence could that have had on the judgment of the Court of Appeal?

 

            Appellants' counsel here stressed the reservations of the court in Duffy as to the observations in Delbert-Evans v Davies (8) about the need to avoid publications which embarrassed the judge. I see no need to enter into the dispute between the judges in these cases, since I have already said that I shall deal with the matter before us on the basis that the judges were not influenced here but I take liberty to point out that Delbert-Evans was approved by Justice Frankfurter in Pennekamp. (15).

           

15. What difference is there between "clear and present danger" and "sufficiency" of influence as to the outcome of a trial? To clarify the difference, only some points of difference need be noted. The test of "clear and present danger", it was said in "Kol Ha'am" (2), is that of "probability". In Abrams (20) Justice Holmes spoke of "imminent threat", and in Schaefer (21) Justice Brandeis said (at 266) that "the test to be applied ... is not the remote or possible effect." For sec. 41 as well "remote effect" is not enough but "possible effect" is, since it is one whether the publication operated to influence the trial or only could so influence. The influence on the outcome of the trial need only be a reasonable possibility and not "probable" or "imminent."

 

16. Was the article which was published calculated to influence the outcome of the trial? I agree with the District Court that it involved a reasonable possibility of influencing witnesses. The central question in Blitz's trial, as will be recalled, was whether some person in addition to Blitz had fired a shot, and if so, whose shot killed Fiatelli? All are agreed that the. identification of a person is an inexhaustible source of error, error which has led to tragic instances of perversion of justice: see Wigmore, The Principles of Judicial Proof, (2nd ed.) paragraph 206, and the examples at paragraph 209. The appellants added to the difficulty. For a witness who was not certain whether Blitz had hit the victim, the latter's admission was likely to strengthen his belief that Blitz had done so. A witness who thought otherwise might be deterred from giving evidence in favour of Blitz, after reading that the latter was ready to confess the crime. I said that the appellants added to the difficulty of giving evidence since a person appearing as a witness can only testify to what he believed he saw or heard and the process of impressions which create in a man's mind the belief that he saw or heard something is at times very complex. In this regard, Wigmore says at paragraph 206

 

"Belief is purely mental ... thence the approximation of our belief to a correct representation of the actual fact will depend upon how fully the data for that fact have entered into the mental formation of our belief."

 

And a little later, in paragraph 207:

 

"Suppose that a man has lost a valuable scarf pin. His wife suggests that a particular servant, whose reputation does not stand too high, has stolen it. When he afterwards recalls the loss, the chances are that he will confuse the fact with the conjecture attached to it, and say that he remembers that this particular servant did steal the pin."

 

            In R. v Clarke (9) the court decided that publication of the confession of a murderer in prison before trial was a contempt of court. A fortiori is it so in the case before us. Blitz had denied the charge and the publication only served to add unnecessary tension to the trial and to show that his denial was not true. It is the right of an accused person to deny the charge. He is presumed to be innocent until his guilt is proved. The publication by the appellants tended to prejudice that right and it was only made to reduce the force of the denial of the charge, thereby affecting the defence adversely.

           

            In conclusion, I would like to add one thing. I am astonished why the police in this as in other instances allowed a journalist to interview the defendant. When a case is pending, nothing that may influence it is to be published. What reason is there for the police to enable the defendant at this stage to have contact with someone whose job is to gather and publish news? A journalist has no interest in news that may not be published. Conversation with a person charged with a serious crime can arouse a feeling of sensation, but there is no benefit to the public in such an interview and it is better that it should not take place.

           

            I have found no basis for the appeal against sentence. I would dismiss the appeal.

           

BERINSON J.            I concur with everything said in the judgment of my learned colleague. I only wish to add something to the brief remarks about the possible influence upon judges of the newspaper publication of matters affecting a trial being heard by them.

 

I agree entirely with the District Court judges that what the appellants published was calculated to influence the course of the trial going on at the time against the defendant Blitz, not only as regards the witnesses but also as regards the judges who sat.           

 

Every defendant has a right to an unimputably fair trial. unaffected whilst it is pending in court by anything not lawfully part of the trial, It is vital that the trial of a person should be conducted and decided on the foundation solely of evidence and argument presented in court in the manner laid down by the law and not influenced by matter from without which has not passed through the crucible of the tests current in the courts and directed to ensuring a fair trial of the defendant, including full capacity to defend himself. In Patterson v Colorado Justice Holmes said:

           

"...if our system of trial is to be maintained. The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print. What is true with reference to a jury is true also with reference to a court."

 

            As my learned friend explained, the information published by the appellants cannot be understood otherwise than that the defendant here admitted his guilt to the journalist before standing trial. It is difficult to imagine anything more serious than the publication in the course of a trial that a person has confessed his guilt outside court. I accept the view of the District Court judges that publication of such information, even if only by clear hint, is always calculated to influence the course or outcome of the trial. Even if done without evil intent to influence the judges or witnesses, the character of the publication and its possible harm of the defendant's interests is unchanged. What is decisive is not the intent but the act and its possible consequence.

           

            Sec. 41(a) of the Courts Law defines the limit of publication with regard to a matter pending in court. It is formulated as a general prohibition of any publication which "is calculated to influence the course or outcome of the trial" and it only excludes "the bona fide publication of a report of anything that has been said, or has occurred, in an open session of the court." Accordingly, anything said or occurring outside court, calculated to influence the trial, is prohibited from publication. Journalists and newspaper proprietors who presume to publish such things cannot plead that it was done in the public interest. The Law lays down what is prohibited and what is allowed in publication from the viewpoint of the public interest, and once the legislature has spoken every plea that the public interest requires otherwise is debarred.

           

            Should a person penetrate the private domain of a judge in order to whisper to him things affecting the guilt or innocence of a person standing criminal trial before him, is that person free of wrong doing? Will he not be punished for an attempt to influence unproperly the judge and the outcome of the trial? I would think-so, as emerges clearly from the remarks of Lord Cottenham over a century ago in Dyne Sombre (10):

           

"Every private communication to a judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is a cause calculated, if tolerated, to diverb the course of justice, and is considered, and ought more frequently than it is to be treated as, what it really is, a high contempt of court."

 

            In this respect, the right of a newspaper is no greater than that of any other person in the country (R. v Gray (11)). On the contrary. A newspaper fulfils a public task and information published in it is normally entitled to the trust of the public which usually attaches importance to newspaper publications. A newspaper which publishes a report that a person has in it more conferred is a crime outside court inculcates belief in that person's guilt in the mind of every reader, including a judge. Willingly or not, he can be influenced consciously or subconsciously. The words of Humphreys J. in R. v Davies (12) at p. 443, that "It is a fallacy to say or to assume that the ... judge is a person who cannot be affected by outside information", express a simple and well-known truth. A judge is but a human being and we cannot penetrate the recesses of his soul and affirm that he has indeed succeeded in freeing himself entirely from things he has come across which have penetrated his mind even unknowingly. The judge's task of conducting a just trial is a difficult and delicate matter even when everything is as it should be. Be the judge as cautious and as strong as he can, things should not be made even more difficult for him by irresponsible publication of matters which it is not his concern to know.  In this regard, the observations of the District Court Judges, themselves judges of long standing, capacity and experience, are worthy to be recalled:

 

"An effort is required of a judge, even when he is used and trained to do so, to rid his mind of outside information which reaches him not in the course of the regular trial, and that is likely to be felt at least when the judge has to decide his stand regarding the credibility of witnesses."

 

Further on in their judgment they go on to say:

 

"And if it be asked, what about those instances in which a judge reads (as often occurs...) of the confession of the accused which is subsequently disqualified as evidence, or in which, after admitting the charge in open court, the accused applies for and obtains leave to withdraw his admission - indeed such instances are not to be welcomed: they are liable to exert an undesirable influence but there is no possibility of avoiding them since these possibilities exist only to prevent new serious dangers.

 

            Freedom of expression does not embrace the right to set at naught the usual assurances for the conduct of an unimputably fair trial. The press is free to deal generally with everything touching the judges and the courts, even to level criticism at them so as to enlighten the public about the problems involved in judicial matters in this country. Judges as human beings, said Justice Frankfurter, or courts as institutions are not entitled to great immunity from criticism than are other persons or institutions: Bridges (16) at p. 259. That refers to criticism of a general nature that does not impinge upon a particular case as long as it is going on in court. This limitation was repeatedly emphasised by Justice Frankfurter in his judgment. Interference in the course of a trial by publication of matter which may impress its mark on those who take part in the trial as judges, witnesses, experts and the like is liable to destroy the character of our legal system, requiring as it does that a defendant's fate shall be decided solely upon the evidence properly adduced in court in the manner fixed by the law and not by any outside influence.

 

            Justice Frankfurter in Bridges (16), after referring to the notion advanced by Justice Holmes in Abrams (20) that a trial is not "free trade in ideas" and that the best test to adopt in court is not "the power of the thought to get itself accepted in the competition of the market", goes on to explain it at greater length (at 203):

           

"A court is a forum with strictly defined limits for discussion. It is circumscribed in the range of its inquiry and in its methods by the Constitution, by laws, and by age-old traditions. Its judges are restrained in their freedom of expression by historic compulsions resting on no other officials of government. They are so circumscribed precisely because judges have in their keeping the enforcement of rights and the protection of liberties which, according to the wisdom of the ages, can only be enforced and protected by observing such methods and traditions."

 

            The problem here is how to achieve a proper balance between protection of freedom of expression on the one side and the maintenance of a just trial on the other. In other words, what is the right place of each in the hierarchy of primary social and public values vital for the existence of true and free democracy. The District Court Judges put their mind to the problem and I think we can be satisfied by citing the incisive observations of Judge Harpazi with which the other two judges who sat agreed and which also reflect my own view of the matter:

           

"The problem with which we are dealing here is not a new problem nor peculiar to this century. It occurs wherever there are courts, wherever people seek to ensure fair and just trial on the one hand and newspapers exist on the other. The problem arises and has at times been considered by the courts of the two great countries where a democratic political regime exists and where the legal system is similar to our own: Great Britain and the United States of America. I see no need to cite here precedents from these two countries but it is common knowledge that in Britain jealous watch is kept against publications concerning matters sub judice, whilst in America the press is far freer in publishing such matters. Were it for me to decide which is desirable, I would choose the British approach and avoid loosening the rein, the end of which is "trial by the press" before a person is adjudged by the court.

 

            Our approach, however, has been laid down by the Israeli legislature, having regard to the fact that severity was prescribed (in Britain) at a time when most cases were decided by a jury. Thus I think that in sec. 41 of the Courts Law the Israeli legislature followed the British approach.

           

            I do not overlook the fact that freedom of the press is affected, which is not only the right of individuals and public groups to free expression but also embraces a vital concern of the public generally. But I think that no one in this country, including pressmen themselves, would urge the right of the press to influence the course and outcome of a trial. When a person stands trial, his fate must be decreed by the court in the courtroom closed to any voice or influence from outside. The right and the task of the press is to inform the public what has occurred in court and it may thereafter also criticize what the Court has done, but it may not interfere in the course of the trial."

           

            The case of R. v Clarke (9) is similar to the one before us. There also information was published in a newspaper of the confession of a person suspected of murder, after being detained in Canada under a warrant of arrest issued in England. The editor of the London "Daily Chronicle", in which the information was published, was charged with contempt of court and convicted. Darling J. speaking for Court had the following to say (at p. 637):

           

"It is most important that the administration of justice in this country should not be hampered as it is hampered in some other countries, and it is not enlarging the jurisdiction of this court - it is refusing to narrow the jurisdiction of this court - when we say that we are determined while we are here to do nothing to substitute in this country trial by newspaper for trial by jury; and those who attempt to introduce that system in this country, even in its first beginnings, must be prepared to suffer for it."

 

See also the like judgments in Canada, R. v Willis and Pople (14) and in Australia, Ex parte Senkovitch (13) set out in the English and Empire Digest, vol. 16, p. 20, nos. 169 p. & q.

 

            To the credit of Israeli newspapers it may be said that in general they proceed with restraint and moderation with regard to anything concerning pending cases and with respect and esteem for the judge. But precisely for this reason it is proper that in the present case, the first of its kind to come before this Court under sec. 41 of the Courts Law, 1957, we should make patent our views and say clearly that the courts of this country will not tolerate the interference of newspapers in pending cases, which may stultify the doing of justice. So that newspapers should know what to expect when an attempt is made to reproduce among us trial by newspaper; the courts must repress any tendency in that direction in its infancy, before it acquires any place or hold in our judicial and social life.

           

LANDAU J.               I concur in the judgment of my friend Sussman J., as well as in the additional observations of Berinson J. as to the dangers which lurk in trial by newspaper. I take liberty to repeat what I said in the same spirit in Ozri v Galed (5):

 

"The advice to be given to newspapers is to abstain from running after sensations in the preliminary publication of court proceedings which are to be conducted in the future and to be satisfied with exact and "dry" reports of these proceedings themselves when taken, without adding details not mentioned in court. Newspapers will thereby safeguard themselves from mishap in this connection as well as take an important step towards raising their professional standard and clear the atmosphere darkened by a multiplicity of publications which tend to injure the good repute of the individual" (at p. 1560).

 

These observations apply even more cogently to anything published about a pending trial which is calculated to prejudice its fair conduct.

 

            Appeal dismissed.

            Judgment given on February 20, 1963.

CrimA 6/50 Levitt v. Angel 1
Crim.A. 6/50 
LEVITT 
v. 
ANGEL 
In the Supreme Court Sitting as a Court of Criminal Appeal 
[June 30, 1950] 
Before: Dunkelblum J., Olshan J., and Cheshin J. 
 Contempt of Court - Civil and criminal contempt - Contempt of Court Ordinance,
1929 s. 6(1) - Criminal Code Ordinance, 1936, s. 143 - Object of civil contempt 
proceedings to enforce compliance with order of court and not to punish offender 
- Differences between English and Israel Law.
 The appellant, who had allowed third parties to occupy premises in breach of an injunction restraining 
him from so doing was convicted of contempt of court under the Contempt of Court Ordinance and was 
sentenced to a fine of I.L. 250 or three months imprisonment. This sentence was imposed on the appellant 
by the District Court not for the purpose of inducing him to comply with the terms of the injunction, which 
had become impossible, but as a punishment for its breach. 
 
 Held, allowing the appeal, that the purpose of the sanctions in the Contempt of Court Ordinance is to
enforce the carrying out of an order of court and not to punish a person held in contempt, for which other 
legislation existed. 
 
Palestine case referred to : 
(1) Cr. A. 2/47; Taasiya Chemit Tel Aviv Ltd. v. Kupat Cholim shel Hahistadruth Hakialit 
shel Haovdim Haivrim and another; (1947), 14 P.L.R. 348. CrimA 6/50 Levitt v. Angel 2
English cases referred to : 
(2) Re Clements, Costa Pica Repablic v. Erlanger; (1877), 46, L.J. Ch. 375. 
(3) In re Maria Annie Davis; (1888), 21 Q.B.D. 236. 
(4) Seaward v. Paterson; (1897) 1 Ch. 545. 
(5) Scott (otherwise Morgan) and another v. Scott; (1913), A.C. 417. 
(6) Wellesley v. The Duke of Beaufort; (1831), 39 E.R. 538. 
(7) Re Newbery; (1835), 111 E.R. 725. 
Miller for the appellant. 
Metosevitch for the respondent. 
OLSHAN J. The respondent, the plaintiff in Civil Action, 839/ 49, which is pending in the 
District Court of Tel Aviv, obtained an injuction from that court in the following terms: 
"After having considered the petition of the said plaintiff, and after 
hearing the arguments of counsel, it is decided to issue an interim order 
prohibiting, until the conclusion of the case, the respondent, his servants 
or agents from delivering possession of the said room to any person or 
persons who are not today living in the said room, in the event of its 
being vacated by the respondent." 
 The respondent applied to the lower court to impose a fine or imprisonment upon the 
appellant (the defendant in the said case) under section 6(1) of the Contempt of Court 
Ordinance, 1929,1) by reason of his having disobeyed the order referred to above . 
 
 The learned judge who dealt with the application found the following facts : 
 
 At 6 a.m. on December 1, 1949, the appellant vacated the room in question and at the 
same time a number of people moved their furniture into the room with the appellant's 
permission. A few hours later, after all the persons concerned had been brought to the 
Police Station, some of the trespassers shouted at the appellant and demanded the return of 
 
1) For text of s. 6(1). See infra p. 36. CrimA 6/50 Levitt v. Angel 3
"the money". The appellant had in fact handed the keys to the respondent before this, but 
the learned judge was satisfied that this was an act of deceit designed to cover up his breach 
of the injunction referred to. 
 
 It would appear that the persons referred to had vacated the room after the 
intervention of the police, but had returned a few hours later. 
 
 On December 16, 1949, the learned judge imposed upon the appellant : "a sentence of 
a fine of I.L. 250 or imprisonment for three months, on condition that after the first 
respondent (that is to say, the appellant in this appeal) shall have served at least one third of 
the imprisonment above mentioned he shall be entitled to apply to court for a reduction of 
the sentence, and the court will no doubt take into account his efforts to remedy the damage 
caused by him. 
 The persons who entered the room without permission were joined as parties to the 
above application, and an order was made against some of them directing them to vacate 
the room within twenty four hours. This order, however, was not directed against the 
appellant. He was sentenced, but no order to vacate the room was made against him, 
because as the learned judge pointed out in his decision, "it is possible that the appellant no 
longer has any direct control over those in possession of the room, and therefore it would 
not be proper to compel him directly to enforce the order.'' 
 
 These are the facts upon the basis of which this appeal against the order dated 
December 16, 1949 has been brought. 
 
2. Had it still been possible for the appellant to rectify the situation and to give effect to the 
injunction at the time the fine was imposed upon him, and had the fine been imposed upon 
him in order to compel him to obey the injunction, we should have found nothing wrong in 
the decision of the learned judge. In this case, however. a punishment has been imposed 
upon the appellant for an offence committed by him without there being any danger, so far 
as he is concerned, of being tried a second time should he persist in his wrongful conduct. 
This, moreover, was done under section 6(1) of the Contempt of Court Ordinance, not CrimA 6/50 Levitt v. Angel 4
under normal criminal procedure, but under the procedure laid down in that section of the 
Ordinance. 
 An important question arises, therefore, in regard to the meaning and purpose of 
section 6(1) of the Contempt of Court Ordinance. The question is : does this section apply 
when the purpose is to punish a wrongdoer for failure to obey an order of court, or is it 
intended to impose a fine or imprisonment in order to compel a wrongdoer to obey such an 
order? 
 
 It would appear from the decision of the learned judge that he accepts the former 
alternative, for it is for this reason that he specifically imposed "a punishment" upon the 
appellant and discharged him from the responsibility of obeying the order in the future. It is 
for as, therefore, to determine whether this approach of the learned judge is correct. 
 
3. It would seem that in applying section 6(1) the learned judge followed the practice of the 
courts in England. 
 English law recognises two forms of contempt of court : 
 (a) Criminal Contempt of Court - where the course of justice is impeded by means of 
disturbances, by words or acts. 
 (b) "Contempt of Court affecting procedure" which is usually also called Civil 
Contempt of Court, where orders are disobeyed, with the result that the rights of 
the individual are defeated. 
 Contempt of Court of the first class is a misdemeanour which renders the wrongdoer 
liable to be charged, as in the case of any other offence. 
 
 Contempt of Court of the second class - where there has been disobedience of an order 
of court - is a matter between the parties, and results in the invoking of sanctions against the 
party who committed the breach of the order, in order to compel him to obey such order. 
There is no element of punishment in such sanctions as there is for a criminal offence. If the CrimA 6/50 Levitt v. Angel 5
disobedience is intentional and wilful it assumes a criminal character, and is then liable to 
become a matter between the state and the wrongdoer. For so long as the contempt does 
not assume a criminal character there is no room for the imposition of a punishment, but 
only for the taking of steps to enforce compliance with the order. (See Halsbury, Laws of 
England, Second Edition, vol. 7, p. 24.) 
 
 In order to punish contempt which contains a criminal element, it is the practice of the 
English courts to exercise their inherent powers. Unlike the case where o wrongdoer is 
charged with contempt upon a charge sheet the court is entitled, when exercising its 
inherent powers, to impose upon a wrongdoer a punishment of a fine or imprisonment 
without any limitation. The wrongdoer is liable to be sent to prison for an unspecified 
period, except that he may apply to court from the place of his imprisonment for an order of 
release. The ordinary criminal procedure is no longer often employed for the trial of a 
wrongdoer for the misdemeanour of contempt of court. (See Halsbury, vol. 7, p. 3, note 
(e)). It is interesting, nevertheless, to point out that the judges do not regard the use of this 
inherent power favourably, when there is no compelling reason to refrain from using the 
ordinary criminal procedure. In re Cletments and Costa Rica Republic v. Erlanger (2) 
Jessel M.R. said : 
 
"This jurisdiction... being practically arbitrary and unlimited should be 
most jealously and carefully watched and exercised, if I may say so, with 
the greatest reluctance and the greatest anxiety on the part of Judges to 
see whether there is no other mode which is not open to the objection of 
arbitrariness." 
 
 Criticism has been leveled particularly against the imprisonment of a wrongdoer for an 
unspecified period for acting contrary to an order of court, when it is not within his power 
to remedy the damage done. See the remarks of Mathew J. in Inre Maria Annie Devis (3) 
who said : "It should be borne in mind that contempt of court is a criminal offence, 
punishable as a misdemeanour by fine and imprisonment or both." 
 
 There is a distinction, therefore, between the imposition of a punishment for 
disobedience of an order of court and the taking of steps to enforce obedience to an order. CrimA 6/50 Levitt v. Angel 6
In England this distinction is not important since in both cases the courts deal with the 
matter in the exercise of their inherent powers; and because in the absence of a statutory 
provision no question arises there as to which section, or which law, is to be applied to the 
different classes of contempt of court. The court in England will exercise its powers 
according to the circumstances of each case brought before it. 
 
4 The question therefore arises whether, in view of section 6(1) of the Contempt of Court 
Ordinance, the courts of this country may act in the same manner as the English courts. 
May section 6(1) of the Contempt of Court Ordinance also be applied where the imposition 
of a five or imprisonment is required not in order to secure the carrying out of the order by 
the party who committed a breach of that order, but for the sole purpose of inflicting a 
punishment? In say opinion the answer to this question is in the negative. The reasons which 
have led me to this conclusion are as follows : 
 (a) Section 6(1) does not speak of a fine or imprisonment as of a punishment which is 
imposed for a criminal offence, but as a means of compelling one of the parties to 
obey an order of court - that is to say, "to compel him until he says that he is 
willing." 
 (b) Section 8 of the Contempt of Court Ordinance does not simply lay down that 
there is a right of appeal from a sentence imposed under section 6(1), but provides 
a right of appeal "on the same conditions as an appeal from a criminal judgment". 
In other words, it is only for the purposes of appeal that a decision under section 
6(1) imposing a fine or imprisonment is similar to a criminal judgment. The word 
"penalty" in section 8 does not alter the position. That word refers to a decision 
imposing a fine or imprisonment in order to enforce obedience to an order, and 
affords no proof that section 6(1) refers to a punishment which is imposed for a 
criminal offence. In the same way, for example, the legislature used the same word 
"penalty" in the Stamp Duty Ordinance in imposing a fine on a person who has not 
impressed the amount of adhesive stamps as required by law, despite the fact that 
an act such as this is not included in section 81 of the Ordinance, which lists the 
criminal offences committed in regard to the provisions of the Stamp Laws. 
Moreover, in section 5 of the original Contempt of Court Ordinance of 1924, CrimA 6/50 Levitt v. Angel 7
which conferred a right of appeal from the decisions of the courts under other 
sections of the same Ordinance as well, the distinction between section 4 (section 
6(1) of the 1929 Ordinance) and the remaining section was intentionally 
emphasized. 
 In regard to decisions under the remaining sections the Ordinance speaks of 
"an appeal... from a conviction and sentence...", whereas in regard to decisions 
under section 4 it provides "an appeal from a judgment...". 
 
 (c) It would appear from the Contempt of Court Ordinance that the legislature did not 
intend to leave the maximum punishment which may be imposed upon an offender 
to the discretion of the judge. In section 3 a maximum punishment of a fine of I.L. 
5 or imprisonment for one month is laid down; in section 4 a fine of I.L. 100 or 
imprisonment for one year or both these punishments is provided for; in section 5, 
imprisonment for one month. In section 6(1), however, no maximum has been laid 
down. It follows, therefore, that the legislature did not intend this section to be the 
basis of a punishment for a criminal act. 
 (d) The legislature knew of the Contempt of Court Ordinance when it enacted the 
Criminal Code Ordinance in 1936. It may be assumed, therefore, that had the 
"imposition of a punishment" for disobedience for an order of court been included 
in section 6(1) of the Contempt of Court Ordinance, the legislature would not 
have enacted section 143 of the Criminal Code Ordinance in terms of which every 
person who disobeys an order of court is guilty of a misdemeanour and is liable to 
imprisonment for two years. 
 (e) In terms of section 143 of the Criminal Code Ordinance disobedience of any order 
of court is made an offence as is also disobedience of an order given "by any 
officer or person acting in any public capacity and duly authorised in that behalf", 
and for this offence a punishment of imprisonment for a period not exceeding two 
years is provided. This section contains two provisos, namely : "unless (a) any 
other penalty is expressly prescribed or (b) any other mode of proceedings is 
expressly prescribed in respect of such disobedience". It is possible that these CrimA 6/50 Levitt v. Angel 8
provisos also give some hint as to the meaning of section 6(1) of the Contempt of 
Court Ordinance. It seems to me that the first proviso cannot refer to section 6(1) 
since that section contains no express provision relating to the imposition of a 
punishment and it is difficult to regard the giving of power to the court to enforce 
obedience to its orders as "the express provision of another penalty". The second 
proviso may apply to section 6(1). This proviso does not speak of "any other 
mode of imposing a penalty in respect of such disobedience", but it speaks of "any 
other mode of proceeding in respect of such disobedience". "Any other mode" - 
that is to say, another way of dealing with the act which constitutes this 
disobedience - in other words, in place of the imposition of a penalty for 
disobedience to the order of court, there is a proceeding for enforcing obedience 
to such order. 
 (f) Finally, the original section 6(1) does not speak of courts in general but of 
particular courts. The Contempt of Court Ordinance in its present form was 
enacted in 1929. The law in force at that time was the Ottoman Criminal Code 
which contained no section whatsoever in terms of which disobedience to an order 
of court could be punished. Is it possible that the legislature intended in section 
6(1) to confer upon particular courts alone the power of imposing a punishment 
for disobedience of their orders? It is true that the power of granting injunctions 
had not yet been conferred upon magistrates but they were able to issue other 
orders. Is it possible that the public interest did not also demand the imposition of 
a penalty for failure to obey the order of a magistrate? It follows that section 6(1) 
was designed to enforce obedience to an order and not to impose a penalty for an 
offence. It was only in 1936, in section 143 of the Criminal Code Ordinance, that a 
penalty was provided for disobedience of an order given by any court. Since 
magistrates had no power to grant injunctions no importance was attached to the 
enforcement of their orders. Proof of this is to be found in the fact that in 1947, 
when the power was conferred upon magistrates of granting injunctions (see 
Ordinance 45 of 1947) section 6(1) was also amended so as to include magistrates 
courts. (See Contempt of Court (Amendment) Ordinance, 1947). CrimA 6/50 Levitt v. Angel 9
5. In Taasiya Chemit Tel Aviv Ltd., v. Kupat Cholim, (1), in which a fine of I.L. 5000 was 
imposed, the argument was advanced upon the basis of section 41 of the Criminal Code that 
since no maximum fine was laid down in section 6(1) of the Contempt of Court Ordinance, 
the maximum was I.L. 200. The court said : 
"Section 6 of the Contempt of Court Ordinance was enacted for the 
purpose of enforcing by fine obedience to an order issued. The object of 
the section is not as is contemplated by section 41 of the Criminal Code 
Ordinance, but to give authority to impose a fine which would be 
sufficient to enforce obedience." 
 
6. It appears to me from the decision of the learned judge in the case before us that he 
issued the order against those who entered the room without permission in order to secure 
obedience to the injunction, while he imposed upon the appellant a punishment as for a 
criminal offence. It seems to me that the direction that should the appellant elect to be 
imprisoned he may, alter having completed a third of the sentence, apply to the court for a 
reduction of the sentence and the court would take into consideration the efforts of the 
appellant to remedy the damage which he had caused, was only intended to induce the 
appellant to make it easier for the trespassers - who were obliged to carry out the order - by 
returning them their money if, in fact, he had received money from them. 
 The learned judge himself says in paragraph 6 of his decision that "the purpose (of the 
remedy sought - the imposition of a fine or imprisonment) is not to punish but to enforce 
obedience to a particular order given by a civil court by means of the imposition of a 
penalty", while in paragraph 11 he says : "in the face of open and impudent contempt such 
as this, there is no alternative but to impose a suitable punishment upon the first 
respondent." 
 
 It is possible that reliance may be placed upon section 143 of the Criminal Code 
Ordinance in order to punish the appellant for disobeying an order of court, but the use of 
section 6(1) of the Contempt of Court Ordinance and the procedure laid down for that 
purpose is not in accordance with law. 
 CrimA 6/50 Levitt v. Angel 10
 In my opinion the decision of the learned judge of December 16, 1949, in regard to the 
appellant must be set aside. 
 
DUNKELBLUM J. I concur, with some hesitation, in the conclusion reached by my 
colleague, Olshan J., and wish to add a number of comments of my own. 
 The problem before us is the interpretation of section 6(1) of the Contempt of Court 
Ordinance. The question is whether this section also applies to a case where the accused has 
acted contrary to an order of court but is no longer able to remedy the situation. In other 
words, is the section only intended to compel a person to comply with a judgment by 
imposing a fine or imprisonment and that such means of compulsion may not be employed if 
the act committed by the accused is no longer capable of being corrected by him, or does 
the section also include an element of punishment to be imposed upon a person who 
disobeys an order of court although he can no longer remedy the position, the object being 
to warn others. 
 
 The distinction between criminal contempt of court and contempt which is only 
disobedience of an order given by the court in civil proceedings has been known to English 
law for some time. ln speaking of the second type of contempt of court proceedings, it is 
pointed out by Lord Lindley, in the case of Seaward v. Paterson (4), that "the party who is 
bound by the injunction is proceeded against for the purpose of enforcing the order of the 
court for the benefit of the person who got it... The person who is interested in enforcing 
the order enforces it for his own benefit." In cases falling into the first class the court is 
concerned not to permit a person to treat it with contempt. 
 
 Lord Atkinson defined more clearly the nature of the first class of contempt, that is to 
say, civil contempt of court, in the case of Scott v. Scott (5). At page 456 Lord Atkinson, 
after referring to various judgments relied upon by counsel for the parties, said : 
 
"It was contended that these cases show that the disobedience of an 
order of court constitutes in itself a crime, a criminal contempt of court. 
Unfortunately for this contention, however, they do something more 
than that; they show I think, conclusively, that if a person be expressly CrimA 6/50 Levitt v. Angel 11
enjoined by injunction, a most solemn and authoritative form of order, 
from doing a particular thing, and he deliberately, in breach of that 
injunction, does that thing, he is not guilty of any crime whatever, but 
only of a civil contempt of court." 
 
 Acts which constitute the first class of contempt are of an entirely different character, 
such as an attempt to influence witnesses, to threaten witnesses, interference in the work of 
the court which disturbs the proceedings, acts of disturbance generally, shouting and 
demonstrations in court, and acts of a similar nature. (See for example the judgment of Lord 
Shaw in Scott v. Scott (5), and also the judgment of Lord Atkinson at p. 455.) 
 
 It is possible therefore to distinguish shortly between these two classes of contempt, 
and to say that to the first class belong acts which are of such a nature as to disturb the 
work of the court or which are liable to influence the proceedings in court, while acts which 
do not possess these characteristics but consist in disobedience of an order given in favour 
of a litigant in a civil proceeding, belong to the second class. 
 
 The Palestine legislature found it proper to regulate the question of contempt of court 
by legislation. The opening sections - that is to say sections 3, 4, and 5 - deal with acts 
which belong to the first class, while section 6 of the Ordinance speaks only of disobedience 
of an order which is to be executed in favour of the interested party. It is true - as is said in 
a number of English judgments - that there is also a criminal element ill the imposition of a 
penalty for disobedience of an order in a civil proceeding (see for example the judgment of 
Rigby J. in the case of Seaward v. Paterson (4) at p. 558; and see Halsbury, vol. 7 p. 24). 
As far, however, as the question before us is concerned, we are obliged to rely, in the main, 
upon the provisions of section 6(1) of our Ordinance, and the correct interpretation to be 
given to the expressions employed by the legislature. The section provides as follows : 
 
"6(1) The Supreme Court, the Court of Criminal Assize, a special 
Tribunal constituted under article 55 of the Palestine Order in Council, 
1922, the District Court and the Land Court shall have power to enforce 
by fine or imprisonment obedience to any order issued by them directing 
any act to be done or prohibiting the doing of any act." CrimA 6/50 Levitt v. Angel 12
 
 The object of this section, therefore, is to impose a fine upon a person or to direct his 
imprisonment for the purpose of compelling him to carry out an order of court, and if that 
person did an act which he cannot remedy, then according to the interpretation of the 
section he is not to be imprisoned or fined since the court will not compel him to do 
something which he is unable to do. It is possible that the result of this interpretation is not 
altogether satisfactory. The provision before as is one dealing with imprisonment and fines, 
and a provision such as this must be interpreted strictly and not broadly. 
 
 No local or English authority dealing directly with a question similar to that before as 
was cited to as by the parties, and I too have been unable to find any such authority. I 
merely wish to point out that a submission similar to that made to us was argued more that 
a hundred years ago in the case of Wellesley v. the Duke of Beaufortt (6). The argument in 
that case, however and I think correctly so - was presented in the opposite form, that is to 
say, that where a person does an act contrary to an order of court which he cannot remedy, 
the punishment imposed upon him should be more severe. In the case of Re Newberg (7), 
the accused was sentenced for contempt of court although the order which he failed to 
obey was a civil order, and although it was not possible for him to carry out the order 
previously given at the time he was punished. Counsel for the accused in that case presented 
a submission similar to that make before us. The punishment is imposed, so he argued, so as 
to procure the doing of an act speedily which someone is obliged co do by law. The accused 
was in the meantime declared a bankrupt and was therefore unable to do what he had been 
ordered to do. Judgment was given against the accused on other grounds : he was a lawyer, 
and his actions amounted to deceit. The judgment in that case, therefore, cannot be 
regarded as a precedent in our case. It is merely interesting that in the course of argument 
Lord Denman C.J. asked in wonderment whether it was desired to argue that the accused 
could not fulfil the requirements imposed upon him when such action on his part was 
demanded of him because he had, by his own actions, put it out of his power to perform 
those requirements? In the case of In re Davis (3), it was mentioned by the court, obiter, 
that a person is punished for contempt of court for failure to obey an order of court 
although the act which constitutes the offence is not capable of being remedied. In any 
event, us I have said, although this question has arisen many times, I have found no decision CrimA 6/50 Levitt v. Angel 13
bearing directly upon it. It seems, however, that this argument would not be sufficient to 
secure the acquittal of the accused under English practice. 
 We are dealing with a statute which, although based upon the practice followed in 
England for generations, must be interpreted primarily according to the literal meaning of 
the language. It seems to me, therefore, that we must conclude from the language of section 
6(1) that the provisions of this section do not apply to the case before us. It seems to me 
that it is necessary to amend this section in such as way as to make it clear that a person 
who disobeys an order of court made at the conclusion of civil proceedings will be punished 
upon the application of the interested party in whose favour the order was given without 
resort to section 143 of the Criminal Code Ordinance, 1936. 
 
 It is also desirable to mention here that, according to English law, if a person 
undertakes in court to do or refrain from doing a particular act and the court, relying upon 
such an undertaking, confirms particular actions, breach of such an undertaking constitutes 
contempt of court. There is no similar situation in our law, and it would be desirable to 
remedy the omission. 
 
 I have doubts in regard to what was said by my colleague Olshan J., as to the scope of 
section 143 of the Criminal Code Ordinance. It is not clear to me whether a person who 
commits a breach of an order of prohibition issued by a civil court is guilty of a criminal act 
under that section. In the case mentioned above, Scott v. Scott (5), Lord Shaw said (at p. 
486) : 
"...the breach by a party of an order made against him or her in the 
course of a civil case is a perfectly familiar thing. Cases for breach of 
injunction are tried every day. But I have never yet heard that they were 
anything but subject to trial by the civil judges as in a civil cause or 
matter." 
 It is not necessary however to deal with this question now. CrimA 6/50 Levitt v. Angel 14
 It is my opinion, therefore, that the appeal should be allowed, and the judgment of the 
court below set aside. 
 
CHESHIN J. I concur in the opinion of my learned colleagues that the order (mistakenly 
called "the decision") of the District Court imposing a fine upon the appellant should be set 
aside. 
2. The sections in the Contempt of Court Ordinance dealing with the imposition of a fine or 
imprisonment are divided according to their nature into two groups. The first group - 
which includes sections 3, 4, 5, and 10 (which was repealed by the Criminal Code 
Ordinance, 1936) - refer to the past, while the second group - which includes only section 6 
- refers to the future. Each of the sections in the first group opens with an act done by a 
person, and concludes with the fine or imprisonment which is to be imposed upon that 
person for the act committed by him. The language of the sections themselves is as follows : 
"Section 3(1): "If any person wilfully obstructs... an officer of a court in 
the performance of his duty... is liable to be punished with a fine... or 
with imprisonment..." 
Section 4(1): "If, while any proceedings... are pending in any court, any 
person shall publish any writing... the High Court... may summon such 
person... to show cause why he should not be punished... by fine or 
imprisonment... " 
Section 5: "A witness who refuses to be examined according to lax... 
may be committed to prison by the court summarily... ". 
Section 10(1): "Any person who - 
 (a) ...uses words... 
 (b) publishes any invective... is liable to imprisonment...". 
 The position therefore is that the Ordinance in these sections defines acts, and lays 
down penalties in respect of these acts. Then, standing alone, is section 6 - in the second CrimA 6/50 Levitt v. Angel 15
group - which does not speak at all of acts but opens with a fine or imprisonment, and 
explains at once that the fine or imprisonment is not in respect of some act which was done 
or some omission, but that the purpose of the fine or imprisonment is to enforce obedience 
in the future to an order given by the court in the past. In this respect section 6 is irregular 
in the framework of the Contempt of Court Ordinance, and its object is utilitarian, for the 
purposes of a specific matter and not general and punitive. As against this section 143 of the 
Criminal Code Ordinance 1936 - which complements section 6 of the Contempt of Court 
Ordinance - should really, from the point of view of its content, be part of this latter 
Ordinance, for this section - 143 - also opens with an act : "every person who disobeys any 
order or warrant given by any Court..." and closes with a punishment "is liable ...to 
imprisonment." 
3. The learned judge in the District Court did not observe this distinction, and after relating 
the facts regarding the breach committed by the appellant, he adds : "in the face of open and 
impertinent contempt such as this there is no remedy but to impose a suitable punishment 
upon the first respondent (the appellant in the proceedings before us)". The learned judge, 
however, overlooked that section 6 does not provide a punishment for breach of the order, 
but empowers the court to impose a fine or imprisonment for the purpose of enforcing 
obedience to the order in the future. From this it follows that where it is clear that the order 
cannot be complied with in any event because there is no possibility of complying with it, 
section 6 does not apply at all since there would be no effect in such n case in imposing a 
fine or imprisonment. Let us assume, for example, that the court ordered a person to do a 
particular act, and that having failed to obey the order the person concerned was summoned 
to court to show cause why a fine or imprisonment should not be imposed upon him under 
section 6(1) of the Contempt of Court Ordinance. And let us assume further that during the 
period between the filing of the application and the date of the hearing he complied with the 
order and did what was required of him. Would the court be competent to impose upon him 
a five or imprisonment? It is clear that the answer is "no". In terms of section 6(1) a fine or 
imprisonment is imposed only "to enforce obedience to any order issued" by the court, but 
in the example which I have cited the order had already been complied with - albeit after 
some delay. From this point of view, a person who appears before the court and proves that 
he cannot comply with the order is in the same position as a person who complied with the 
order but did so after the date fixed for the compliance. In neither case will the imposition CrimA 6/50 Levitt v. Angel 16
of a fine or imprisonment enforce compliance with the order - in the first case because it has 
already been complied with, and in the second case because there is no possibility of its 
being complied with. 
4. And this is not all. The fines and periods of imprisonment mentioned in those sections 
which fall into the first group are the fines to be exacted for acts that have been committed. 
Such acts are onetime acts and the fine is to be paid but once. From this it follows that the 
act is a criminal offence, and the fine or imprisonment is punishment. As against this, the 
fine and imprisonment in section 6(1) are not intended as a fine to be exacted for an act 
which has been committed, but are a means of enforcing - by way of warning - the 
performance of an act. If one attempt to enforce compliance with the order has no effect, 
then he who disobeys must be compelled a second time, and a third time, and so on without 
end, until he does what is required of him. From this it follows that disobedience is not a 
criminal offence, and the fine or imprisonment is not a punishment. The learned judge 
therefore erred in his opinion that there is no alternative but to impose a suitable punishment 
upon the first respondent. 
5. I must confess, in conclusion, that I thought at first that it would perhaps be wise, after 
setting aside the order of the District Court, to return the case to that court to determine 
whether indeed the appellant is able to comply with the order of the court. It is difficult to 
ascertain from the facts what the position is, and the order of the learned judge is also not 
sufficiently clear. At one point in the order - after speaking of imposing a punishment - the 
learned judge says that "after the first respondent (the appellant) shall have served at least 
one third of the imprisonment... he shall be given the opportunity of applying to court for a 
reduction of the sentence, and the court will no doubt take into account his efforts to 
remedy the damage caused by him". This language suggests the possibility that the appellant 
will be able, with some effort, to comply with the order. But next to the sentence which I 
have quoted we find the following words : "It is possible that the appellant no longer has 
any direct control over those in possession of the room, and there is no necessity for this 
reason to compel him directly to enforce the order". It will be seen that these words indicate 
two possibilities. I thought, therefore, as I said, that it would perhaps be desirable to direct 
the court below to determine the position as it is and decide accordingly. I changed my 
mind, however, after considering the application of the respondent to the court below. It is CrimA 6/50 Levitt v. Angel 17
true that this application is headed by the words "Application under Section 6(1) of the 
Contempt of Court Ordinance", but in the body of the petition the court is asked ''to give an 
order for the imposition of a fine or imprisonment for failure to comply with the order given 
in Application . . . ". In other words, it is not compliance with the order in the future which 
concerns the respondent, but the failure to comply with the order in the past. The prayer in 
the petition, therefore, is for the imposition of a punishment for an offence. It is here that 
the mistake of the petitioner lies - a mistake which in the end led the court itself into error. 
The petition is based upon false premises, and should have been dismissed by the court at 
the beginning of the proceedings when counsel for the appellant addressed his preliminary 
arguments to the court. For this reason there is also no point in returning the case to the 
District Court. 
Appeal allowed and the decision of the lower court, 
in so far as it affects the appellant, set aside.
Judgment given on June 30, 1950.