Criminal Law

Cr.A. 158/58

 

NA'IM ABU AMIRAM v. ATTORNEY-GENERAL

 

In the Supreme Court _sitting as a Court of Criminal Appeal

 

Agranat J., Landau J. and Witkon J.

Criminal Law-Murder-Act of vengeance for the killing of another­ Secs.  23 (1), 212, 214(b) and 216(b) of the Criminal Code Ordinance.

 

In broad daylight in the centre of Raanana, the appellant and his brother together stabbed one Abdush to death as an act of veneance for the slaying of their father by the son of Abdush. The appellant pleaded that the killing was an attempt and not murder since there was no evidence as to which knife wound had caused the death, nor was he an accom­ plice since he was of a psychopathic nature and unaware that his brother had done the killing. The onslaught on the deceased had not been premeditated but arose in the course of an accidental meeting. The appellant also pleaded that he had acted under provocation of an alleged  insult to him by the victim and  was therefore  only guilty of  manslaughter.

 

Held: The facts and the medical evidence showed that the appellant was aware of what was happening and even if the brother had struck the fatal blow, the appellant was  an accomplice in aiding and promoting the combined effort and was equally responsible for the outcome. There had been no provocation.

Israel cases referred to :

(1)          Cr.A. 97/57-Zvi Kadouri and others  v.  Attorney-General,  and cross appeal (1958) 12 P.D. 1345.

(2)          Cr.A. 46/54-Attorney-General v. Baruch Segal (1955) 9 P.D. 393. English cases referred to :

(3)          Ackroyds Air Travel, Ltd. v. Director of Public Prosecutions

[1950] 1 All E.R. 933.

(4)          Thomas v. Lindop [1950] 1 All E.R. 966. (5)            R. v. Salmon (1880) 6 Q.B.D. 79.

(6)          R v. Swindall and Osborne (1846) 175 E.R. 95. (7)               R. v. Downing(1822) 1 Cox, C.C.156, 160.

Tamir for the appellant.

Bach, Deputy State Attorney, for the respondent.

LANDAU  J.  giving  the  judgment  of  the  court.  The  appellant, Na'im Abu Amiram, and his  brother,  Uri  Abu  Amiram,  were convicted by the  District  Court,  Tel  Aviv-Jaffa,  under  sec.  214  (b) of the Criminal Code Ordinance, 1936, of the murder of Avraham Abdush. On appeal, appellant's counsel, Mr. Tamir, sought to change the conviction to that of attempt to murder or, in the alternative, to manslaughter under sec. 212. We dismissed the appeal on the day itwas heard, and these are our reasons.

The deceased, Abdush, was killed by the appellant and his brother Uri in broad daylight in the centre of Raanana  as an act of vengeance  for the killing of Michael Abu Amiram, the appellant's father, who had been stabbed to death by Abdush's son. The appellant's family had also charged Avraham Abdush personally with the killing of Michael Abu Amiram and although Avraham was acquitted of this charge the mem­ bers of the family had not reconciled themselves to  the acquittal.  On  the day of the occurrence the appellant and his brother came upon Abdush by chance when he was sitting in a jeep. They attacked him with knives and stabbed him many times until he died.

Mr. Tamir submitted two arguments. In the first, by which he sought to reduce the appellant's guilt to one of attempt to murder, he proceeds from the premise that there was no proof-and the prosecution concedes this to be true-as to which of the many stab-wounds inflicted by the two brothers had actually caused the death. That being so, the appellant is entitled to benefit from everything implied in the assumption that the death was caused by one of the stab-wounds which Uri inflicted. The doctors who gave evidence at the trial found that the appellant possessed a psychopathic personality and committed  the act while  his consciousness was impaired. Mr. Tamir would infer from this that the appellant was not aware at all of the fact that his brother was standing at his side and also stabbing the deceased. Without such knowledge, the appellant is not even to be regarded upon  the above assumption as an accomplice to the homicidal act which was carried out by Uri.

 

Had the factual basis of this argument been proved, i.e. that the appellant did not know that his brother was standing beside him and stabbing the deceased, there would have been some merit in Mr. Tamir's argument, because ordinarily a person can only be considered an accomplice to another's criminal act when he knows the facts necessary to prove the offence: Ackroyds Air Travel Ltd. v. D.P.P. (3); Thomas v. Lindop (4). But just as every person is presumed to be of sound mind until .the contrary is proved, so he is presumed to know what is happening around him to the extent thafa person of ordinary  physical and mental attributes would in similar circumstances.  In  the  case  before us the appellant could rebut that presumption only by discharging a heavy burden of proof. In the first place, both brothers had a strong common motive for earring out the act, namely, a ·desire to avenge their father's death. What they said  immediately  after  the act testifies  to this (the Appellant: "This was revenge"; Uri: "He killed my father"). Secondly, both brothers acted together during the crucial stage of the attack upon the deceased as they stood  next  to each other stabbing him in the back. The victim sat in front of them and the wounds inflicted were concentrated on his left side. Thirdly, after they had finished, both of them fled from the  place  with  the  appellant  shouting  "Come,  come" to his brother. It was after this that the appellant made the above remarks about vengeance, which indicates that he was aware of what he had done and why he did it. It would be very difficult to conceive that, despite all this, the appellant did not know when the act was being committed that Uri was standing next to him stabbing away, even if evidence of such lack of knowledge were given. But, in fact, there was no such evidence before the court. The appellant himself who could have given direct evidence on this point chose not to testify under oath and even then said nothing to suggest that he did not know about Uri's presence and action. Although he says in  keeping  with  his defence  plea  that  he acted  automatically in a state of fugue: "I did not know what I was doing; I lunged at  him, and only became conscious when my hands and clothes were spattered with blood", yet he adds: "And Uri, my brother next to me, ran off fleeing", i.e. that even according to his own statement he knew of his brother's presence at a moment close to the main occurrence.

 

Against all this, Mr. Tamir finds  support  for  his  submission  in the evidence of the doctor alone, that the appellant acted with impaired consciousness. But this also is far from being well founded. The substance of the plea relating to the appellant's mental state, the fugue, was rejected by the court because the doctors who gave evidence for the defence in support thereof expressed their opinion in  reliance  upon  factual  data for which there was no basis in the evidence. As to this there is no appeal. It is true that even Dr. Rabinowitz, the principal witness for the prosecu­ tion on the medical aspect of the matter, spoke in evidence of the appel­ lant's impaired consciousness, but one  must  examine  his  evidence more closely in . order to  understand  the  meaning  of  what  he  said (pp. 353-4):

"I do not think that the accused was in a special mental state very different from his usual state of mind. I said 'not very' because I think that he was in a rage which in some sense reduced his consciousness somewhat, but by no means clouded it.

A clouding of consciousness is always connected with a lack of orientation. A very clear indication of clouding of con­ sciousness occurs in an epileptic state. In this instance, when I hear that he turned to his brother and said to him 'Come, come' and invited him to join  in  the  act,  I  cannot  think that the accused acted without consciousness or in a state of clouded consciousness.

Impaired consciousness means in the case of a person acting in anger that all his emotions and activity are directed

' to the object of his anger; this is not to say that he is not in a state of disorientation or unconsciousness." [From the context it is clear that the last "not" in this quotation is superfluous and was added through a clerical error.]

To the same effect is the evidence of the second doctor for the prosecution, Dr. Meir, (at p. 347):

"I was strongly impressed by the fact that there was here a condition of impaired consciousness In such an impaired state, consciousness exists in a qualitative sense, but it is concentrated upon one thing and neglects the rest."

In contrast, Dr. Raphaeli and Dr. Streifeld  who testified,on  behalf of the defence speak of an absence of perceptivity, adhering to  the theory of fugue which was rejected by the court, and in this connection Dr. Streifeld says (at p. 337) that at the moment of "fugue" the appellant would have had no impression of anyone's presence, be it  a  police officer or anyone else.

But the following words of Dr. Raphaeli, also called by the defence to support the extreme fugue, are interesting (at p. 307):

 

"The fact that the accused was in a state of consciousness at a given moment does not prove that before that he was not in a state of consciousness. I do not contend that the accused was not in a state of consciousness; this is the accused's contention."

Neither of these doctors was asked directly whether in his opinion the appellant knew of Uri's presence and actions at the time. From the medical evidence as a whole no such inference can be drawn at all. Although the appellant's consciousness was restricted in the sense of being completely concentrated on his objective-to strike  his  enemy upon whom he had rushed in violent rage-there was nevertheless no evidence before the court to enable it to find that during the onslaught he was oblivious to the presence of Uri who stood by his·side striving towards the same goal to which all of the appellant's attention was directed.

Thus collapses the main pillar of the  argument  which  seeks  to base itself upon the premise that the fatal stab was made by Uri and not by the appellant. In Mr. Tamir's words, however, there could be heard something like a sequel to this argument: that even  if  the  appellant knew of Uri's presence and his stabs, that does not make him an accom­ plice of Uri because the meeting with the deceased Abdush was accidental and it had not been proved that the two brothers had conspired before­ hand to attack the deceased. In any event, the appellant did not intend to help Uri do the killing but his purpose was rather that he himself should attack the victim. For this reason, it  is  argued,  the  requirements·  of sec. 23 (1) (b) that a  person  is considered  an  accomplice  only  when he "does or omits to do any act for the purpose of enabling or aiding another person to commit the offence," have not been fulfilled.

The answer to this part of the argument has already been given in Kadouri v. Attorney-Genera/ (1), where it was said (at p. 1350):

"When Reuven, Shimon and Levi attack the victim in concert and  with  one  mind,  each  doing  the  wounding, and there is no way of knowing who actually caused the victim's death, all of them are to be convicted of having caused the death, for this must be so whichever way you look at it. If we assume  that  the death  was  caused  by  Reuven he is guilty as a principal and Shimon and Levi  also  are fully guilty as his accomplices, and if Shimon caused the death, Reuven and Levi are the accomplices. In these circum­ stances it makes no difference and there is therefore no need to prove who struck the fatal blow.'.'

To  support   this  statement,  two  English  decisions   were cited:

R. v. Salmon (5) and R. v. Swindall and Osborne (6), both of which concerned the causing of death  in  consequence  of  criminal  negligence, the latter involving the running over of a person by one of two carriages, the drivers of which were racing against each other, and the former killing a man by a stray bullet fired  while  three persons  were engaged in  target  practice.  In  both cases  there  was  no evidence  who  was the actual  killer (the driver  of the carriage which  had  run over  the victim;               the one who fired the fatal shot). The court nevertheless decided in both cases that the joint activity-the racing and the common participation in target practice without taking proper precautions-was sufficient to convict all of them despite the doubt as to who  actually  caused the death: If this is true of criminal negligence, a fortiori where  the act was intentional. This has always been the rule in English Law. See, I Hale, Pleas of the Crown, 463, cited in R. v. Downing (7):

 

"That although the indictment was that B gave the stroke, and the rest were present aiding and assisting, though in truth C gave the stroke, or that it did not appear, upon the evidence, which of them gave the stroke, but only that it was given by one of the rioters, yet that evidence was sufficient to maintain the indictment."

Glanville Williams (in The Criminal Law at p.  222)  sums  up the  law as follows:

"Difficulties of evidence are of no legal importance. If Dis indicted as principal-in the first degree and E as principal in the second degree, and it is not certain from the evidence which is principal in the first degree and which principal in the second degree, both may be convicted by a general verdict of guilty".

The logical reason for this rule is that mere acting in concert and with one mind constitutes mutual aid and assistance and also mutual encouragement for commiting the offence and ·ensuring· that it be carried out. In this way the English rule fits into the framework of subsecs. 23 (1) (b) and (c) of our Code, the contents of which the Mandatory legislator drew from the English original. The circumstances of the present case well illustrate this idea, for  there  is  no  doubt  that  the joint attack of the two brothers upon the deceased Abdush  naturally made the attainment of their objective easier, since as the number of attackers increases, the victim's ability  to  defend  himself  decreases, and this encourages the assailants and each of them and renders their task easier. Therefore, assummg that Uri was the actual killer, the appellant should be regarded as his accomplice and as encouraging him' by his  own action directed to the same end.

It is indeed true that appellant's intention was to be  the  killer himself and not to assist Uri in killing the victim. There was something like a contest between the two, similar to the  racing  in  the  Swindall case (6), but  this  does  not lessen  the appellant's  responsibility even  if it should ultimately appear-on the assumption we have made-that  his role was only that of an accomplice. Criminal intent is required in the case of an accomplice in the sense that he must intend the commission of the offence, but there is no authority for the view that he must intend only an auxiliary act. His general intent to commit the offence itself supplies the element of criminal intent also as to the assistance which he renders to his co-actor, the  principal  offender.  The  language  of  sec. 23 (1) (c) is sufficiently broad to embrace also situation such as this.

 

The appellant was, accordingly, properly convicted not only of an attempt to murder but of actual murder, whether he killed with his own hands or whether the victim's death was directly caused by Uri.

 

Mr. Tamfr's second submission was that the prosecution had not proved the absence of provocation against the appellant  and  therefore his act is reduced to manslaughter under sec.  212.  On  the  contrary, says Mr. Tamir, it was proved that the appellant had been provoked just before the act, as his brother Uri testified. According to the latter's evidence (at pp. 235-6) the appellant turned to Abdush saying in Arabic "A dush,  are  you  satisfied?,"  whereupon  Abdush  turned  his  head and said: "You skunk, your father got what was coming to him". It is contended that these words about the father of whose murder the appellant's family accused Abdush personally caused the appellant to lose control of himself, and that they were of the kind which were likely to influence in this manner any reasonable person because such defiance, of which there is no greater, is an illustration of those rare cases where words alone may constitute provocation for the purposes of sec. 216 (b). In the alternative, Mr. Tamir sought to re-examine  the  rule  in  the  Segal Case (2), that the test of provocation  is  an  objective  one,  and that for this purpose account must be taken of the appellant's personality.

 

This contention runs counter to the facts as established by the District Court. In paragraph 18, at p. 12 of their judgment, the learned judges say: "We do not believe that the deceased Abdush swore at Na'im before the stabbing," and this finding is repeated in paragraph 20, at  p. 17. They do  not  state their reason for disbelieving Uri, but they were under no duty to do so. Be that as it may,  this finding is definitely reasonable in view of these considerations. In this respect also we are left without the appellant's personal evidence under oath as primary evidence corroborating Uri's version. The witness Guakil, the driver of the jeep in which Abdush was sitting, does not understand Arabic. According to his evidence he heard something being said, not in a loud voice but indistinctly, not in Hebrew, by the deceased, followed by a rustling sound. He turned his head backwards and saw the appellant and Uri lower their knives on to the body of the deceased. He could count from one to six in the interval between the time that the words were uttered by the deceased until he heard the rustling sound (possibly  caused by the drawing  of  the knives  or  one  of  them).  This evidence is not sufficiently clear, but the detail that the deceased did not speak in a loud voice does not particularly suggest swearing which is generally uttered aloud. Moreover, the appellant himself said  in evidence given not under oath in court (at p. 232):

"I said to him: 'Abdush,  you're  satisfied'.  He  turned his head and cursed. When he cursed, I recalled the picture when my father was killed and everything was full of blood, and how he came and let him have it with the pliers on the head. I remembered how I was also stabbed at the same time. I did not know what I was doing. I fell on him."

Here he speaks of cursing in a general way, without specifying the words. There is no hint of the stinging insult "Your father got what was coming to him", according to Uri's version. Speaking to Sergeant Ashkenazi immediately after the act, the appellant said: "I could not do otherwise. He cursed me and I gave him what was coming to a murderer who killed our father" (Ashkenazi's evidence at p. 34). Here also, there is no suggestion of the words about the father getting what was his due, the appellant merely saying that the deceased cursed him personally. If by this he meant the word "skunk", of which Uri gave evidence, that certainly cannot constitute sufficient provocation. In all the sequence of events it is also to be remembered that the deceased was sitting in the jeep unarmed while the two brothers stood behind. This position made it difficult for him to defend himself and it is hard to believe that in such a position the deceased would provoke the brothers by hurling at them serious curses and insults. In the face of all these considerations we see no grounds for interfering with the finding of the District Court that the brothers' attack upon the deceased was not preceded by any cursing. At any rate, it was not preceded by cursing so serious that it might be regarded as provocation. That being so, the circumstances of the case show sufficiently that the appellant did not act under provocation within the meaning of sec. 216 (b). We see no need to examine further the remaining arguments advanced by counsel upon the supposition of facts which have not been proved.

 

Appeal dismissed. Judgment  given on November  1, 1959.

HCJ 1892/14

 

 

 

Petitioners:                  1.         The Association for Civil Rights in Israel

                                    2.         The Ramat Gan College of Law and Business

                                    3.         Physicians for Human Rights

 

                                                            v.

 

Respondents:              1.         Minister of Public Security

                                    2.         Prison Service Commissioner

                                    3.         Minister of Justice

 

In the Supreme Court sitting as High Court of Justice

[June 13, 2017]

 

Before: Deputy President E. Rubinstein, Justices H. Melcer and U. Shoham

 

On behalf of the Petitioner:  Advocates Anne Sucio, Oded Feller, Sigal Shahav

On behalf of the Respondents: Advocates Ran Rozenberg, Reuven Eidelman

 

Israeli cases cited:

[1]        HCJ 337/84 Hokma v. Minister of Interior, IsrSC 38(2) 826  (1984).

[2]        PPA 4463/94 Golan v. Prisons Service, IsrSC 50(4) 136 (1996).

[3]        HCJ 2245/06 Dobrin v. Prisons Service (2006).

[4]        HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63(2) 545 (2009).

[5]        LHCJA 4937/14 Albazian v. Attorney General, (2014).

[6]        LHCJA 328/15 Zalum v. Attorney General, (2015).

[7]        HCJ 161/94 Atari v. State of Israel, (1994).

[8]        HCJ 4905/98 Gamzu v. Yeshayahu, IsrSC 58(3) 360 (2001).

[9]        HCJ 10662/04 Hassan v. National Insurance Institute, IsrSC 65(1) 782 (2102).

[10]      LCA 5368/01 Yehuda v. Attorney Yosef Teshuva, Receiver, IsrSC 58 (1) 214 (2003).

[11]      HCJ 5578/02 Manor v. Minister of Finance, IsrSC 59(1) 729 (2004).

[12]      AAA 3829/04 Tuito, Chairman, Mikol Halev Association v. Jerusalem Municipality, IsrSC 59 (4) 769 (2004).

[13]      HCJ 1384/04 B’tzedek Association – American-Israeli Center for Promoting Justice in Israel v. Minister of Interior, IsrSC 59(3) 397 (2005).

[14]      HCJ 366/06 Commitment to Peace and Social Justice Society v. Minister of Finance, IsrSC 60(3) 464 (2005).

[15]      HCJ 1163/98 Sadot v. Prisons Service, IsrSC 58(4) 817 (2001).

[16]      HCJ 451/94 Miller v. Minister of Defence, IsrSC 49(4) 94 (1995).

[17]      HCJ 9134/12 Gavish v. Knesset, (2016).

[18]      MApp 1/87 Dananashvili v. State of Israel, IsrSC 41(2) 281 (1987).

[19]      CrimA 344/81 State of Israel v. Segal, IsrSC 35(4) 313 (1981).

[20]      HCJ 5304/92 Perah Association v. Minister of Justice, IsrSC 47(4) 715 (1993).

[21]      HCJ 114/86 Weil v. State of lsrael, IsrSC 41(3) 477 (1987).

[22]      MApp 3734/92 State of Israel v. Zaki Azazmi, IsrSC 46(5) 72 (1992).

[23]      FH 13/80 Hendels v. Kupat Am Bank Ltd., IsrSC 35(2) 785 (1981).

[24]      CA 3616/92 Dekel Computer Engineering Services Ltd. v. Heshev Inter-Kibbutz Unit, Agricultural Co-Operative Society Ltd., IsrSC 51(5) 337 (1997).

[25]      HCJ 5185/13 Anonymous v. Great Rabbinical Court, (2017).

[26]      LCA 296/11 Najar v. Aliyan, (2012).

[27]      CA 191/51 Skornik v. Skornik, IsrSC 8 141 (1954).

[28]      LFA 7141/15 A. v. B., (Dec. 22, 2016).

[29]      CA 8954/11 Doe v. Doe, (2014).

[30]      CFH 7325/95 Yediot Aharonot Ltd. v. Kraus, IsrSC 52(3) 1.

[31]      CA 294/91 Hevra Kadisha Kehillat Yerushalayim v. Kestenbaum, IsrSC 46(2) 464 (1992).

[32]      CrimApp 537/95 Ganimat v. State of Israel, IsrSC 49(3) 355 1995).

[33]      CA 522/70 Alkutub v. Shahin, IsrSC 25(2) 77 (1971).

[34]      HCJ 2599/00 Yated – Non-Profit Organization for Parents of Children with Down Syndrome v. Ministry of Education, IsrSC 56(5) 834 (2003).

[35]      HCJ 2065/05 Maher v. Minister of Interior, (2005).

[36]      HCJ 6300/93 Center for Training of Rabbinical Court Pleaders v. Minister of Religious Affairs, IsrSC 48(4) 441 (1994).

[37]      HCJ 6321/14 “Ken Lazaken” – For the Advancement of the Rights of the Elderly v. Minister of Finance, (2017).

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

[39]      HCJ 355/79 Katlan v. Prison Service, IsrSC 34(3) 294.

[40]      HCJ 2442/11 Shtanger v. Speaker of the Knesset, (June 26, 2013).

[41]      HCJ 6055/95 Tzemach v. Minister of Defense, IsrSC 53(5) 241 (1999).

[42]      HCJ 5636/13 Residents of Timorim – Agricultural Cooperative Society, (May 20, 2014).

[43]      HCJ 243/52 Bialer v. Minister of Finance, IsrSC 7 424 (1953).

[44]      HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, (March, 27, 2016).

[45]      HCJ 3132/15 Yesh Atid Party led by Yair Lapid v. Prime Minister, (April 13, 2016).

[46]      HCJ 430/08 I.D.F. Disabled Veterans Organization v. Minister of Defense, (July 18, 2010).

[47]      HCJ 2902/11 Association for Children at Risk v. Ministry of Health, (Sept. 4, 2015).

[48]      HCJ 4541/94 Alice Miller v. Minister of Defence, IsrSC 49(4) 94 (1995).

 

 

 

 

Judgment

 

Deputy President E. Rubinstein:

1. This petition concerns the conditions of confinement of prisoners and detainees, particularly in regard to the living space allotted to each prisoner and detainee.

 

Background

2.         The problem of prison overcrowding is not new. It has existed for at least four decades. Various commissions have been established over the years to address the subject, among them the Commission for the study of Crime in Israel of 1978 (the Shimron Commission), the Commission of Enquiry for the Investigation of Prison Conditions in Israel of 1981 (the Kenet Commission), the Commission to Assess Methods for Alleviating Overcrowding in Prisons of 1987 (the Karp Commission) (for details, see the 43^rd Annual Report of the State Comptroller for 1992 and Financial Report for the 1991 Fiscal Year, 345-346 (1993)). Since it was established, over two decades ago, the Public Defender’s Office has addressed this issue in the framework of its periodic reports in regard to prison conditions in Israel (see, for example, The Public Defender’s Report on Prison Overcrowding of 2013, hereinafter: The Public Defender’s Report). The findings of the various published reports show that overcrowding – and no one denies its very existence – derives from a lack of space in the prison facilities, on the one hand, together with a continual rise in the number of imprisonments and arrests, on the other. We should note that while new prisons and detention facilities have indeed been established over the last decades, and the it can be assumed that the Prison Service is making efforts in this regard, it cannot be denied that the tendency towards misbehavior by prisoners who enjoy good conditions would lessen. However, at the end of the day, this desirable effort has not – as yet – led to a significant increase in the average amount of living space allotted to each prisoner and detainee, which has remained at about 3 square meters per person for the last 25 years, and is now 3.16 square meters, as will be described below.

3.         The legislature addressed the issue of prison overcrowding in 2012, in the framework of the Prisons Ordinance (Amendment no. 42) Law, 5772-2012 (hereinafter: Amendment 42), which establishes, inter alia, in sec. 11B(b) of the Prisons Ordinance: “A prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity”. Since 1996, there has been a similar section in the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996 (hereinafter: the Arrest Law) in regard to detention facilities. We should recall that the Arrest Law was enacted under the influence of Basic Law: Human Dignity and Liberty, and the spirit of that law imbues it. Amendment 42 incorporated the Prisons (Imprisonment Conditions) Regulations, 5770-2010 (hereinafter: the Prisons Regulations), in which reg. 2(h) establishes a similar arrangement to that in reg. 3(e)(3) of the Criminal Procedure (Enforcement Powers – Arrests) (Conditions of Detention) Regulations, 5757-1997 (hereinafter: the Arrest Regulations), under which:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell (emphasis added – E.R.).

            Regulation 8 of the Prisons Regulations, which establishes the application provision (similar to the parallel, final part of reg. 3(e)), instructs:

1. These regulations will apply to permanent construction. In this regulation, “permanent construction” – a structure that cannot be transported from place to place.
2. Sub-regulations (d), (f) through (h) will apply to places of imprisonment whose construction planning began after the initial day [June 2010 – E.R.], and to the extent possible, even to planning and renovation of existing places of imprisonment (emphasis added – E.R.).

Thus, according to the current normative situation, new prison facilities must provide at least 4.5 square meters of living space for each prisoner or detainee. But note that according to these legal provisions, the standard of 4.5 square meters per inmate will apply to existing facilities only in the framework of planning and renovation, and only if feasible (“to the extent possible”).

4.         Current data provided by the Prisons Service show that the average area per inmate in Israel is 3.16 square meters at present. In this framework, some 21% of the inmates are held in cells in which the average space per inmate is greater than 4.5 square meters; some 18% are held in cells in which the average space per inmate is between 4 and 4.5 square meters; and some 61% are held in cells in which the average space per inmate is less than 4 square meters, of whom two thirds – some 40.5% of all inmates – are held in cells in which the average space per inmate is less than 3 square meters (see the State’s supplementary notice of April 3, 2017, para. 32). It should be noted that the calculation of living space comprises the area of the entire cell, including beds and cupboards, as well as the areas of the lavatory and shower, to the extent that such are in the cell. For the sake of clarity, we would already point out that the petition argues for a minimum are of 4 square meters not including the lavatory and shower areas, while the said reg. 2(h) calls for 4.5 square meters including the area of the lavatory, sink, and shower.

5.         Here are the primary points of the petition before the Court.

The Arguments of the Petitioners

6.         The petition is premised upon the argument that the current living space allotted to most prisoners and detainees infringes their right to dignity, physical and emotional integrity, and privacy to a disproportionate extent and without express legal authority. It is further argued that we are concerned with an infringement of the right of the prisoners and detainees to liberty to an extent that exceeds what is necessary, and which the Petitioners argue is tantamount to cruel, inhuman and degrading punishment.

7.         It is argued that as a consequence of the overcrowding in Israeli prison and detention facilities, the living space allotted to each inmate – an average of some 3.16 square meters – is too small to meet the most basic needs of the inmates. Moreover, the Petitioners are of the opinion that ensuring proper living conditions requires examining data in addition to the size of the cell alone, such as the number of hours during which an inmate is permitted to be outside of his cell, the number of inmates in a cell, the size of the area outside the cell that is accessible to an inmate, the length of imprisonment, and more. It is therefore argued that the living space in the cell particularly affects the quality of life of inmates held in closed wings, who compose some 50% of the total held in prison facilities. Such inmates are permitted to leave their cells for only a few hours, during which they eat their meals, use the lavatories, shower, and spend their free time.

8.         The Petitioners argue that the average living space allotted to an Israeli inmate is far below the standard accepted in Western states, which runs between 6 and 12 square meters per inmate, as well as below the minimal appropriate space in accordance with Prisons Service’s own position, which is 6.5 meters, as expressed in the National Master Plan for Prisons (hereinafter: NMP 24 or the NMP). The Petitioners further argue that this area is even smaller than the standard established in the Arrest Regulations and the Prisons Regulations for new prison facilities, which stands, as noted, at 4.5 square meters per prisoner and detainee.

9.         In addition to the living space allotted to each inmate, it is noted that the overcrowding in the prisons and detention facilities is also expressed in the number of prisoners or detainees held in the cells. In this regard, the Petitioners point to the data of the Prisons Service, which show that some 85% of the total number of inmates are held in cells of four inmates or more, of whom some 43% share their cell with 8 additional inmates. This is the case despite the standard established in reg. 3(e)(2) of the Arrest Regulations and reg. 2(g) of the Prisons Regulations for new prison facilities, under which there should be no more than 4 beds in a cell.

10.       It is further argued that the overcrowding in the prisons harms the accessibility and availability of the services offered to the inmates. If more inmates are held in a facility relative to what was originally intended, the services provided in the facility – i.e., social assistance, medical and psychological treatment, educational and rehabilitation frameworks, as well as the various public infrastructures in the facilities, such as the cafeterias and the yard – are divided among a greater number of people. Citing academic publications in the area, and reports by the Public Defender in regard to the conditions in Israeli prison facilities, the Petitioners argue that each inmate indeed enjoys less of the resources offered to the general population of inmates in the prison as a result of the overcrowding.

11.       According to the Petitioners, the existing normative foundation lacks a standard obligating the Respondents to supply prisoners and detainees a defined minimum living space. This is the case inasmuch as the Arrest Regulations and the Prisons Regulations refer to future prison facilities, and therefore do not address the minimum living space to which every prisoner and detainee is currently entitled. On the contrary, it is argued that since the establishment of the 4.5 square meter standard for detention cells in 1997, there has been no advancement toward meeting that standard, and the living space of detainees remains as it was. The Petitioners further argue that despite the widespread construction efforts made over the last years, in which eight new prisons were erected and many wings in existing prisons were renovated, the problem of overcrowding was only slightly improved – inter alia, due to the constant increase in the rates of imprisonment – such that the average living space per inmate increased from 2.9 square meters in 1992 to merely 3.16 square meters at present. It is argued that other means adopted over the last few years to reduce overcrowding, such as administrative release, contributed little to significantly increase the living space allotted to each inmate. The Petitioners are of the opinion that in the absence of an obligatory norm in regard to the appropriate living space to be provided to all prisoners and detainees currently held in Israeli prison facilities, this population continues to remain in unbearable living conditions, with no discernable solution. It is further argued that existing plans for minimizing overcrowding in the prison facilities are insufficient in and of themselves, even if they would be granted the appropriate approvals and budgets.

12.       It is argued that the current overcrowding greatly influences the daily lives of the prisoners and detainees. The limited living space creates crowding and congestion in the cells, limits the movement of the inmates more than is necessary, increases friction among them and adds to their mental distress, exacerbates the violation of their privacy, and leads to poor hygiene and a rise in the spread of illness. The Petitioners argue that these stresses make living in the cells “inhuman”. This argument is supported by affidavits taken from six prisoners and detainees in various prison facilities throughout the country, by affidavits taken from former senior Prisons Service employees, and by the reports of the Public Defender referenced above. Citing research published in the field, it is further argued that in addition to the direct influence upon the lives and health of the inmates, the overcrowding in the prisons also has consequences for public welfare by undermining the possibility of an inmate’s rehabilitation under such conditions.

13.       In light of the above, the Petitioners are of the opinion that the constitutional right of the prisoners and detainees to proper living conditions is infringed. This right is anchored in sec. 11B of the Prisons Ordinance, and in sec. 9(a) of the Arrest Law, respectively, which create an obligation to hold prisoners and detainees in appropriate conditions that will not harm their health and dignity. It is argued that every prisoner and detainee also has a right to adequate living space on the basis of the constitutional regime, inasmuch as it derives from the right to dignity. It is also argued that holding prisoners and detainees in the aforesaid living space violates other fundamental rights, among them the right to physical  and emotional integrity, the right to privacy, and the right to liberty, all of which are, in the opinion of the Petitioners, infringed in these circumstances to an extent that exceeds what is necessary.

14.       It is further argued that the living conditions of the majority of prisoners and detainees in Israel contravene the rules of international law, in view of the obligation to ensure appropriate living space, and the prohibition upon imposing cruel, inhuman or degrading punishment. In regard to appropriate living space, the Petitioners refer to art. 10(1) of the International Covenant on Civil and Political Rights of 1966, which states: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. In this regard, reference is also made to the U.N. rules of 1955 that establish Standard Minimum Rules for the Treatment of Prisoners, and expressly note the right to minimum floor space, as well as similar rules in the European Prison Rules adopted by the Council of Europe in 1987.

15.       According to the Petitioners, the average floor space per prisoner in Israel is lower that the accepted standard of democratic states, and even lower than the minimum established by the United Nations Committee against Torture, which is 4 square meters exclusive of the area of the lavatory and shower. That being the case, holding prisoners and detainees in Israel in an average living space of some 3 square meters per person (including the area of the lavatory and shower, and as noted, we are currently looking at 3.16 square meters per person) is, it is argued, tantamount to cruel, inhuman or degrading punishment, as defined under art. 7 of the International Covenant on Civil and Political Rights. In this regard, the petition cites several court decisions from around the world that addressed similar petitions against overcrowding in various prisons. Thus, for example, the petition cites the 2013 decision of the European Court of Human Rights in Torreggiani v. Italy, no. 43517/09, ECHR 2013 (hereinafter: the Torreggiani case)), which held that holding prisoners in living space less than 3 square meters per person constituted a violation of the prohibition upon cruel punishment and inhuman treatment, and held that Italy must find a solution to the problem of overcrowding within one year. Also cited is the United States Supreme Court decision in Brown v. Plata, 131 S.Ct. 1910 (hereinafter: the Plata case), which concerned the California prison system. The Court addressed the infringement of the rights of inmates due to overcrowding, and ordered the state to reduce the number of inmates by some 40,000 within two years. We are also referred to the 1998 decision of the Polish Constitutional Court (cited by the European Court of Human Rights in Orchowski v. Poland, no. 17885/04, § 85, EHCR 2009 (hereinafter: the Orchowski case)), that overturned legislation that permitted holding inmates in an area less than 3 square meters, and gave the prison authorities an eighteen-month period to increase the size of the prison facilities.

16.       In light of the above, the Petitioners request an order nisi in the following language:

A.        Why will every prisoner and detainee (hereinafter: inmate) not be ensured appropriate living space in the cell within a reasonable time period, and that the following steps be taken to that end:

1.         Establishing the appropriate living space for an inmate;

2.         Preparing a plan that will establish the course of action for attaining appropriate living space for an inmate;

3.         Establishing a reasonable timetable for realizing the plan that will be established.

B.        Why will the necessary steps not immediately be taken to ensure every inmate living space of 4 square meters (excluding the lavatory and shower areas) necessary to prevent cruel, inhuman or degrading punishment.

The Position of the Respondents

17.       The Respondents are of the opinion that the petition should be dismissed for lack of an actionable cause for the intervention of the Court.

18.       First and foremost, it is noted that a standard for the minimal cell area for each prisoner and detainee has already been established by the Israeli legislature in the framework of the Prisons Regulations and the Arrest Regulations, and it is 4.5 square meters. Therefore – according to the Respondents – the first remedy requested in the petition is superfluous. Moreover, it is argued that the arrangement under the regulations, according to which the standard will apply to new prison facilities, and to the extent possible, to the planning and renovation of existing facilities, expresses the balance struck by the subsidiary legislator between the need to increase the average cell size per inmate, on the one hand, and the required investment of resources for the immediate expansion of all the prison facilities, on the other hand. Inasmuch as the said standard was established in primary legislation by virtue of Amendment 42, the State’s actions in accordance therewith – both in regard to the construction of new facilities and the renovation of existing facilities – is, it is argued, in accordance with the law.

19.       As for the second remedy, concerning immediately ensuring 4 square meters of living space per inmate, the Respondents are of the opinion that there are no legal grounds for granting the petitioned remedy. It is argued that the appropriate criterion established for an inmate’s living space – i.e., 4.5 square meters, subject to the said balance between the construction of new facilities, and the renovation of existing facilities, to the extent possible – expresses the entire complex of required considerations. It is not clear to the Respondents upon what basis the Petitioners derive a duty to establish an alternative standard to that decided upon by the subsidiary legislator on the basis of primary legislation. The State further explains that immediately ensuring an average living space of 4.5 meters for each inmate – the standard established, as noted, by the State – would require massive construction of new prison facilities, expansion of current prison spaces, and the addition of over 1,300 employees, at an estimated expense of some 2.7 billion NIS. Granting the requested relief would mean changing the government’s budgetary priorities as established in the Budget Law, and this in regard to an issue that, as noted, the legislature specifically addressed.

20.       It is further argued that the there is an inherent tension between the two heads of the petition that further militates against it. The first head employs valve concepts[1] (“reasonable time”, “appropriate living space”), whereas the second head seeks to establish a concrete standard immediately. Moreover, the Respondents argue that these remedies were not defined in a manner that reflects their precise legal nature, inasmuch as they are located on the constitutional plane – in view of their inherent demand to change a legal arrangement established in primary legislation – and not in the administrative plane, as may appear from the language of the petition. It is argued that inasmuch as reasons for annulling the relevant regulations for unconstitutionality were not presented, the petition should be denied. The Respondents are further of the opinion that the first head actually seeks even more far-reaching intervention – viz., establishing an alternative standard to that established by the State, as well as a time frame, which would be tantamount to judicial legislation. It is argued that the rights of prisoners are not absolute but relative, and it is therefore necessary to balance the granting of those rights against competing considerations, like budgetary limitations, the security of the prisons, and so forth, as the legislature did in the present matter.

21.       Lastly, the Respondents argue that extreme caution should be exercised in regard to the comparison that the Petitioners make between Israeli prison policy and that of other countries. In general, it is argued, comparative law is, at most, a source of inspiration, and the legislature is accordingly granted a particular constitutional margin that derives from the State’s unique normative arrangements. This is particularly true where the question of the constitutionality of a specific legislative arrangement is concerned, and especially when we are concerned with a remedy that, if granted, would be tantamount to judicial legislation.

22.       In response, the Petitioners are of the opinion that the Respondents’ argument that the standard established under the regulations – i.e., 4.5 square meters of living space per inmate in prisons to be constructed in the future – renders the first remedy superfluous, should not be accepted. It is argued that the Prisons Regulations and the Arrest Regulations are irrelevant to the question of the conditions appropriate for current inmates, and thus the need for establishing a concrete standard – as recommended in the petition – that will apply immediately. It is also argued that granting the petition does not require a change in the existing normative situation.

The present proceedings

23.       We will briefly describe the progression of the proceedings from the time of the submission of the petition. On July 13, 2015, the first hearing was held before President M. Naor and Justices H. Melcer and Z. Zylbertal. In the course of the hearing, the attorneys for the Respondents updated the Court in regard to a wide-ranging plan for the construction of new prisons that, they argued, had the potential of providing a response to the remedies requested in the petition. At the end of the hearing, the Court decided to grant the Respondents a four-month period to submit an updated notice on the matter.

24.       On Jan. 8, 2016 – following the granting of a continuance – an updated notice was submitted. First, the Respondents informed the Court that an agreement had been reached between the Ministry of Finance and the Ministry of Public Security to double the annual construction budget of the Prisons Service for 2016 for the purpose of adding 200 new prison spaces. Second, we were informed that prior to the preparation of the State budget for 2017, long-term solutions for increasing the average living space per inmate would be considered – in a positive light – while also examining alternatives like building new prison facilities and renovating wings of existing facilities. Third, it was noted that in the course of deliberating the State budget for the years 2015-2016, it was decided to grant an additional 86 million NIS to the Prisons Service for expanding rehabilitation and educational services for inmates in the framework of a plan to execute Amendment 42. The Respondents are of the opinion that this step can be expected to result in a reduction of recidivism, and thereby to a reduction in the number of inmates in looking to the future.

25.       A second hearing of the petition was held on Jan. 25, 2016, before the same panel. At the outset of the hearing, the Petitioners argued that the position of the Respondents reflects a failure to internalize the seriousness of the problem at hand, and requires that an order nisi be granted to move the matter forward. For their part, the attorneys for the Respondents argued that the Petitioners’ demand for an immediate increase in the living space of every inmate is dramatic, and would require a significant budgetary commitment. In view of the position of the Respondents that, in principle, the petition did not present a cause for judicial intervention, the State’s attorneys argued that there is no room for an additional budgetary realignment beyond that already decided. At the conclusion of the hearing, an order nisi was granted as requested, as noted in para. 16, above.

26.       The Respondents submitted a reply on Sept. 7, 2016. In that reply, they reiterated their position that the petition should be denied for lack of cause. It was further stated that the Respondents had made significant advances toward improving the living conditions of inmates in Israel since the date of the submission of the petition, such that the claims made in the petition had been blunted.

27.       Pursuant to the above, the Respondents presented a list of steps that had been adopted to improve the living conditions of prisoners and detainees. First, they noted NMP 24, which had been approved by the Government on March 7, 1982, and which provided for constructing new prisons in seven sites around the country, and noted change no. 3 to that NMP, of June 8, 2015, that provided for adding additional prisons to the plan with the approval of the National Planning and Building Council. Under the provisions of the NMP, at least 75% of the planned cells are expected to be for individual inmates, and they will be no smaller than 6.5 square meters, while the others will be for three inmates, and each inmate will have at least 5 square meters. Second, a multi-year plan was presented that, in principle, would increase the average cell space allotted to an inmate. The plan was prepared by the Prisons Service following the filing of the petition (hereinafter: the plan-in-principle). The plan focuses upon building new prison facilities, on one hand, and on closing old facilities that provide a low living standard, on the other. The plan was approved by Respondent 1, and was presented to the Government. It is argued that its realization will lead to a significant improvement in the living conditions of the inmate population, including an increase in the average cell size per prisoner. Third, our attention was directed to the Prisons Service’s plan to execute Amendment 42, which has a budget of 86 million NIS for the years 2016-2018, and which will emphasize improvements in the treatment, rehabilitation, medical, and educational services offered in the prisons. Fourth, the Respondents noted Decision no. 1840 of the 34^th Government, of Aug. 11, 2016 (hereinafter: Decision 1840), which established a series of steps for making the penal and rehabilitation policies more efficient, among them: expanding the community-court model, with a view to limiting punishment by means of imprisonment; a suggestion to enact authorization for the courts to order community service for up to nine months (rather than the current six months); the allocation of 75 additional electronic monitoring devices to the Rehabilitation Authority for prisoners on conditional release. Fifth, the Respondents noted that in preparing the State budget for the years 2017-2018, an agreement was reached between the Ministry of Internal Security and the Ministry of Finance for the establishing of a Prisons Service building fund that would be allocated 20 million NIS in the Prisons Service’s basic annual budget, and that would rise to 60 million from 2019 onward. To summarize this matter, it was argued that the steps enumerated – which are being carried out, as noted, in accordance with the balance inherent in the application provisions of the regulations – provide a full response to the first remedy sought by the petition.

28.       The Petitioners submitted their reply on Sept. 25, 2016. While the Petitioners were of the view that the steps enumerated in the Respondents’ reply were welcome, they argued that there was no obligation to increasing the living space of inmates, even by mere centimeters, and certainly not in any defined time period. As for reducing the inmate population by means of alternatives to incarceration, the Petitioners are of the opinion that that provides no guarantee that the living space of inmates will be increased when it was not defined in advance as an independent objective, along with the establishing of a rigid standard and an orderly plan for its achievement. Thus, for example, it was argued that the administrative-release mechanism – in place since 1993 – has not itself led, as yet, to an improvement in the living conditions of the inmates. The Petitioners do not expect that the steps taken to reduce recidivism and the changes in penal policy will lead to a significant reduction in the number of inmates. It is argued that these plans affect a very limited number of inmates, and therefore, cannot serve to increase the living space allotted to the general inmate population in any acceptable manner. As for the Respondents’ updates on the matter of plans for constructing new prison facilities and the renovation of existing facilities, the Petitioners are of the opinion that these, too, cannot provide a response to the problem of overcrowding in the absence of a predetermined minimum standard for living space that will be allocated to each prisoner and detainee when the plans are realized. It was further argued in regard to the plan-in-principle, that the Respondents’ reply lacks specifics as to its concrete objectives, the projected timeframe for its completion or its estimated budget, all of which the Petitioners believe are required in order to evaluate the actually expected effect on the living space of prisoners and detainees.

29.       On Feb. 8, 2017, a hearing was held before the present panel on the objection to the order nisi. The attorney for the Respondents argued that tremendous progress had been made since the issue was brought before the Court, and this alone justifies denying the petition. The construction fund mentioned in the reply was specifically noted, and the Respondents requested additional time to provide a more detailed update in regard to the concrete timetables expected to be established in that regard. Given what was presented, the Respondents were granted 30 days to submit an updated notice, and the Petitioners were granted 10 additional days to reply.

30.       On April 3, 2017 – after requests for continuances, and without blaming the “messenger” – an updated notice was submitted on behalf of the Respondents. It stated that following a complex administrative review by the Prisons Service, with the cooperation of the Attorney General, who was also involved in the matter, the plan for building additional prison spaces in a number of new, high-standard facilities was examined, as well as a proposal for increasing the living space in the existing prisons. It was submitted that as of the date of the filing of the notice, the Respondents were as yet unable to crystallize a final position as to the said alternatives, and more time was requested in order to update the Court on the results of the review. We granted the request in our decision of April 9, 2017.

31.       The Respondents submitted a supplementary notice on April 21, 2017. That notice presented an update in regard to a number of solutions that had been developed, in addition to the steps already detailed in the reply. First, it was submitted that it had been decided to erect a new prison to replace the Neve Tirzah women’s prison, which would comprise 311 prison spaces at a cost of 171 million NIS. In this regard, it was noted that the living space allocated to prisoners in Neve Tirzah is currently 3.1 square meters on average, whereas building the new facility would lead to increasing the living space to some 6.5 square meters. Second, the Respondents updated the Court as to a plan for expanding cells in some of the existing prison facilities by removing 200-500 empty beds. Third, we were informed that the Prisons Service, in cooperation with the Ministry of Finance and the Ministry of Public Security, would begin detailed planning for the construction of a new prison – in addition to the facility intended for women – together with the closing of an old prison. It was stated that the sum of up to 15 million NIS would be allocated for the purpose of preparing the detailed plan for the facility, which would be addressed in the framework of the 2019 budget, and it was noted that there is already an approved development plan. The Respondents further updated the Court as to the progress made in regard to the execution of Decision 1840, and particularly in regard to the elements related to alternatives to imprisonment.

32.       The Respondents submitted their reply on April 27, 2017. It stated that the Respondents’ notice did not change their principled position according to which an order absolute should be granted. It was argued that the steps enumerated above do not constitute an undertaking in regard to increasing the living space of inmates, and are, in any case, far from providing a solution to the problem of overcrowding. That is the case inasmuch as some of them are – it was argued – of a theoretical and speculative character, whereas the concrete steps noted (such as building an alternative facility for Neve Tirzah) relate only to a limited prison population. That being the case, the Petitioners are of the opinion that even if these steps would increase the prison spaces by some amount – under what they deem the unreasonable assumption that the rate of incarceration and arrest will remain steady – it will not be an amount with the potential of achieving an appropriate average living space for each and every prisoner and detainee.

Review and decision

33.       It is a fundamental principle that “every right of a person, as a person, is retained even when he is under arrest or imprisoned, and the fact of imprisonment alone is insufficient to deprive him of any right, except when necessary and deriving from the very fact of the deprivation of his freedom of movement, or when there is an express legal provision in that regard…” (HCJ 337/84 Hokma v. Minister of Interior [1] 832, per Justice M. Elon). And note: a prisoner – even if he is lawfully imprisoned and is not one of the thirty-six righteous – is deprived, first and foremost, of his right to liberty, along with additional restrictions that derive from the purpose and nature of imprisonment. But the prisoner is not denuded of his rights as a person, and he does not lose those freedoms granted to every person as such, unless it is required for the purpose of incarceration. Prison walls are not a “normative black hole” beyond which there are no rights or protections. On the contrary. A prisoner – who is, of course, subject to certain duties of conduct in prison – is in the custody of the State, and the State has heightened responsibility for him:

When a person enters prison, he loses his freedom. A person loses his freedom, but he does not lose his dignity. A person’s dignity accompanies him wherever he goes, and his dignity in prison is the same as his dignity outside prison … Where an official unjustifiably violates the dignity of a prisoner — his dignity as a human being — the Court must speak out succinctly and clearly (PPA 4463/94 Golan v. Prisons Service (hereinafter: the Golan case [2]) 172, per Justice M. Cheshin).

And further on (at p. 175):

… a person, every person, carries his constitutional rights in his knapsack, and wherever he goes, his rights go also. Even when he enters the prison as a prisoner a person is not stripped of his constitutional rights, and his rights remain in his knapsack.

34.       However, as we know, the basic principle of the Israeli constitutional system that a person’s – any person’s – basic rights must not be infringed is not absolute, and such infringement is possible where there is “a recognized conflicting interest, whether private or public, that is of sufficient weight to justify this” (HCJ 2245/06 Dobrin v. Prisons Service [3], para. 13, per Justice A. Procaccia).  However, “the loss of personal liberty and freedom of movement of an inmate, which is inherent in the actual imprisonment, does not justify an additional violation of the other human rights of the inmate to an extent that is not required by the imprisonment itself or in order to realize an essential public interest recognized by law” (HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance (hereinafter the Prison Privatization case [4],  595, per President D. Beinisch).

35.       Of course, in establishing the scope of the protection of the human rights of a prisoner, we must also address considerations inherent to incarceration and the duties imposed upon the Prisons Service: the need to protect all the prisoners and their rights; to maintain order and discipline in the prisons; and to ensure the welfare and security of the other prisoners and of the prison staff (the Golan case [2], 150).

Human dignity and the dignity of the prisoner

36.       Another basic principle: the right to human dignity is anchored in Basic Law: Human Dignity and Liberty. The Basic Law establishes a prohibition upon violating the right to dignity, as well as a duty to protect it:

1A. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.

2. There shall be no violation of the life, body or dignity of any person as such.

…

4. All persons are entitled to protection of their life, body and dignity.

…

11. All governmental authorities are bound to respect the rights under this Basic Law.

            A prisoner does not enjoy liberty – one of the two elements of the title of the Basic Law – inasmuch as he is incarcerated. Section 5 of the Basic Law, which states: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise”, does not apply to prisoners, particularly in view of the limitation clause entitled “Violation of rights” (sec. 8), which states: “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required” (and see: LHCJA 4937/14 Albazian v. Attorney General [5], paras. 11-12; LHCJA 328/15 Zalum v. Attorney General (hereinafter: the Zalum case [6]), para. 35).

37.       This Court has long held that human dignity comprises a broad field of rights, inter alia, and with nuances that this is not the place to elaborate, the right to freedom of religion and freedom from religion, the right to freedom of expression, the right to one’s good name, and the right to family life (A. Barak, Human Dignity: The Constitutional Value and its Daughter Rights (2014), chap. 13 (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)]). The Basic Laws do not expressly recognize social rights, and the courts have refrained from unequivocally stating that the government has a duty to respect social rights (B. Medina, Human Rights Law in Israel (2017) (Hebrew)). However, it has been held, and this is perhaps the main point, that the right to dignity also includes a right to basic dignified existence.

38.       In HCJ 161/94 Atari v. State of Israel [7], and later in HCJ 4905/98 Gamzu v. Yeshayahu [8], the Court recognized the right to minimal dignified human existence – ensuring basic human subsistence (and see: HCJ 10662/04 Hassan v. National Insurance Institute [9]). These judgments, and in many subsequent judgments (LCA 5368/01 Yehuda v. Attorney Yosef Teshuva, Receiver [10]; HCJ 5578/02 Manor v. Minister of Finance [11], 736; AAA 3829/04 Tuito, Chairman, Mikol Halev Association v. Jerusalem Municipality [12], 779; B’tzedek Association – American-Israeli Center for Promoting Justice in Israel v. Minister of Interior [13]) recognized a basic right to a dignified human existence as a right to dignified socioeconomic existence, inasmuch as in “the free world”, the right to a dignified existence is intimately tied to economic welfare, and the possibility of maintaining it requires economic means. As opposed to this, the subsistence of prisoners behind bars is not contingent upon their economic capabilities, and it is by nature more modest. It consists primarily of the possibilities available to maintain his daily life within the confines of the prison and the purpose of imprisonment. “Indeed, the human right to dignity is also the right to have living conditions that allow an existence in which he will realize his liberty as a human being” (HCJ 366/06 Commitment to Peace and Social Justice Society v. Minister of Finance [14], 480, per President A. Barak). The prisoner cannot, of course, realize his liberty while imprisoned, but he , of course, does not stop being a human being, and looking to the future, his humane treatment also benefits society and contributes to preventing recidivism, to the extent possible (see: H. Cohn, The Law (1991) (Hebrew), hereinafter: Cohn, The Law).

39.       It would not be an exaggeration to say that an inmate’s physical living space is one of his most basic existential needs. It is essential in every respect that there be a space in which the inmate can live his life within the limits deriving from his imprisonment. We are concerned with the core of human dignity, the nucleus of the right: “We are speaking of human dignity in its plain meaning, the core of human dignity, of human dignity as expressed and understood in plain language” (HCJ 1163/98 Sadot v. Prisons Service [15], 857, per Justice Cheshin). We should bear in mind that even were the conditions those established by the legislature, and every inmate were allocated 4.5 square meters of living space, it would hardly be wildly generous, and privacy would, nevertheless, be limited. But the word of the legislature, even if qualified, must remain before our eyes, and to it we must strive.

40.       But the living space allocated to an inmate throughout the prison facilities stands at only 3.1 square meters. This space is “all included” – it comprises the beds (some 1.5 square meters), storage spaces, and lavatory and shower areas. In other words, the free space allotted to an inmate for his day-to-day activity does not reach 3 square meters. The overcrowding in the prisons “violates the movement and breathing space of the inmate in the prison compound” (the Prison Privatization case [4], para. 32 of the opinion of Justice Procaccia), infringes the inmate’s privacy to the point of nullification, and allows only limited movement. The Petitioners enumerated a long list of the consequences of overcrowding for the lives of inmates, and well described how it can inherently lead to the spread of disease and to difficulties in maintaining good hygiene (see: The Public Defender’s Report, pp. 17-19). This is the case even if I do not doubt that the Prisons Service, its headquarters, district commanders and prison wardens work hard to improve the situation and maintain the health of the inmates. However, research shows that overcrowding leads to an increase in friction among the inmates, which in turn leads to violence and disciplinary breaches (Craig Haney, The Wages of Prison Overcrowding: Harmful Psychological Consequences and Dysfunctional Correctional Reactions, 22 Wash. U.J.L & Pol’y 265 (2206); Gerald G. Gaes, The Effects of Overcrowding in Prison, 6 Crime and Just. 95 (1985). Truth be told, there is no need for research to know this – it is clear from experience and common sense. The research also points to the physical and psychological decline of inmates, an increase in the sense of pressure, tension and anxiety, as well as an increase in self-starvation (N. Dagan, “Early Prison Release: The Releasing Authority and its Discretion in Designing Penalties” (Ph.D. diss, 2013) (Hebrew); and see: Jack Call & Terence Thornberry, Constitutional Challenges to Prison Overcrowding: The Scientific Evidence of Harmful Effects, 35 Hastings L.J. 313, 319 (1984)). It is superfluous to say that overcrowding impairs the availability and accessibility of various services in the prisons. These services are divided among a larger number of prisoners, and the same is true for public spaces. We will now turn to the “terrible overcrowding in the prisons” (not necessarily in regard to Israel, and see: Cohn, The Law, 552).

41.       The Public Defender’s Report (Conditions of Detention and Imprisonment in the Prison Facilities of the Prisons Service in the Years 2013-2014 (2015) (Hebrew)) states, for example, in regard to ventilation conditions:

In the Maasiyahu Prison [in which, according to the data of the Prisons Service, the living space per prisoner stands at 2.7 square meters – Appendix P/1 – E.R.] the cells were found to be dark, and there were no means for proper air conditioning and ventilation, other than in the staff offices. In a visit in July 2014, when the weather was very hot, the inspectors met inmates who all, without exception, complained of the severe heat in the prison, and noted that the few fans that were given to them were insufficient to alleviate it. The inspectors themselves suffered from the intense heat in the cells, and noted that some of the cells were dark (p. 47).

            As for the sanitation and hygienic conditions:

In the Nitzan Detention Center [in which, according to the data of the Prisons Service, the living space per prisoner stands at 2.4 square meters – Appendix P/1 – E.R], the inspectors were exposed to particularly severe sanitation conditions. The inmates complained of hard living conditions in terms of overcrowding, hygiene and the available equipment, and also showed the inspectors insect, lice and flea bites. According to them, the matter has not been addressed by the Prisons Service, and there has been no spraying of insecticide in the wing for over five months. The prisoners also complained of a lack of facilities for hanging laundry, such that they are required to hang wet laundry in the cell. In one cell, the inspectors saw many cockroaches around an empty plate, and there was a sense of severe suffocation and a stench that made it difficult to remain in the place for more than a few minutes. In another cell, the inspectors found that there was no dining table and the inmates eat while sitting on the beds. There was no trash can, and the trash was thrown into a bag on the floor. There were signs of severe damp, the paint was peeling from the walls, and there was a water leak. In another cell, which held eight inmates, overcrowding and stench. The shower and lavatory were in an inner room, but the water continuously ran out of it into the cell. Insects and cockroaches were observed in the cell, which cause the inmates itching and sores. There is a large window in the cell, without glass due to the extreme heat in the room. It was reported that in the winter, rain water enters the room through the window and wets the beds… (p. 51).

And further:

In the Hadarim Detention Center [in which, according to the data of the Prisons Service, the living space per prisoner stands at 3.6 square meters – E.R], the inspectors noted the lack of hygiene in the cells of detainees being held under day-to-day arrest. The bathroom was neglected and dirty, and the metal (stainless steel) toilet and sink were dull and stained, the floor was filthy, trash was spread about the cell, on the walls and ceiling there were mildew, dirt and stains. The walls of the cell are covered in graffiti, and are completely peeling. The mattresses on the beds were torn, dirty and full of holes, and were nothing more than bare pieces of foam. There were gray woolen blankets on the beds, which were also partly torn and covered in stains. A bad odor emanated from the mattresses and blankets. Some of the beds were broken. In another cell, visited by the inspectors at lunchtime, there were three inmates who sat on the beds around a plastic table. The inmates crowded their trays on the narrow table or held them in their laps, and it was clear that eating was uncomfortable. Next to the table, there was an improvised trash bin, made from a large food can. This cell, too, was filthy, the blankets were dirty, and the inmates complained that they were used and had been left in the cell by other inmates. The inmates told that they wanted to clean the cell, but instead of being given cleaning supplies, the prisoner detail sprayed a little water and soap in the middle of the cell, and they removed the water from the cell with a squeegee. The inmates noted that the only cleaning material around is dishwashing soap, and even that is not accessible to them (ibid.).

42.       The Public Defender’s Office also noted that many prison facilities lack a partition between the shower and the toilet, such that the inmates have to shower while standing over the place where other inmates relieved themselves.

43.       The above is given concrete expression in the prisoners’ affidavits appended to the petition. We will quote some of them:

In that cell we were 8 inmates for 22 consecutive hours a day. Not enough daylight entered the room, so it was mostly dark. There was no air flow, so the room was suffocating and stank. There was no space in the room to stand and walk and stretch, so most of the time we would all lie on our beds … in 2005, I spent a year … in the Ayalon Prison. There we were twenty inmates in 35 square meters of living space, with only 14 beds in the room, and I had to sleep on a mattress on the floor. At night, inmates who went to relieve themselves stepped on me. Inmates threw things at me from their beds. There was a lot of violence in the room, and very frequently due to the severe overcrowding, and directly related to the issue of distributing the beds in the room and telephone times (P/11, Affidavit of Prisoner D).

            And:

The wings in which I was held for my 21 years of imprisonment until now were very crowded, filthy, not whitewashed, and certainly unfit for human habitation (P/12, Affidavit of Prisoner E).

44.       And this is how the situation was described by Mrs. Gilada Hellman, who held various positions in the Prisons Service, including warden of the Hermon Prison and District Prisoners Officer for the Northern District:

In a large part of the cells, there was such great overcrowding that there was no room to put a table or a chair in the cell, and the inmates, in such cases, had to eat while sitting on their beds with the plate on their knees, or they had to fight over the little available empty space … in a large part of the cells, there is also no room for keeping personal belongings … as a result, there are a lot of thefts and disputes among the inmates … the severe overcrowding conditions also negatively impacted the prisoners’ hygiene … (P/14).

45.       On a personal note: Over the years, beginning with my tenure as a District Court judge, and particularly during my term as Attorney General, and my tenure in this Court, I felt it was important to examine the living conditions of inmates by relatively frequent visits, without prior coordination other than a notice to the Legal Advisor of the Prisons Service immediately prior to the visit, and spontaneously choosing the prison. I also often wanted all the clerks in my office to see the prisons from the inside. I would note that a Supreme Court justice, as well as the Attorney General, may visit any prison in accordance with sec. 72 of the Prisons Ordinance. I recall what I was told by my late friend, and justice of this Court, Dr. Moshe Etzioni, who, when appointed to the Magistrates Court in 1945, asked the senior British judge for permission to visit a prison “in order to know where I am sending people”. I would also add at this juncture that I greatly appreciate the Prisons Service for its work – important and hard work – and I have always been impressed by the efforts of the commanders and their staffs to treat the inmates properly and respectfully. What will be said here is not intended to detract from that in any way. In those visits, after speaking with the prison warden, I would randomly visit the cells in the various wings as I chose, and talk to the inmates. I was always impressed by the efforts of the staff and all involved in providing, to the extent possible, suitable conditions and various services that would afford the inmates a real opportunity to leave the cycle of crime for a normative life, as far as possible, and attain “local quiet” to the extent possible. However, I saw crowded cells, with hardly adequate ventilation, particularly in the hot summer days, and a lack of space heaters in the winter in the old buildings. Thus, for example, after visiting the Ayalon Prison on July 23, 2008, I wrote to the Deputy Commander of the Central District and the Warden of the Ayalon Prison: “The Ayalon Prison is based upon an old building from the Mandate period, and it is clear that parts of it that remain from that structure are completely inadequate in terms of the living conditions of the inmates, where 12- 14 inmates reside in a cell that is not large enough for such a number, and the shower is over the toilet. We understand that three new wings are currently under construction, and that there is an intention to upgrade the existing ones thereafter. It is to be hoped that this process will be accelerated, as it is hard to accept such cells in the 21^st century … and this is not meant as criticism of the work of the staff, but rather of the unacceptable situation” (my letter dated July 24, 2008). After my visit to the Nitzan detention center on March 1, 2011, I wrote to the Prisons Commissioner that “in the renovated wing, living conditions are good and the lavatories are at a good level … in the ‘old’ wing as well, although it is much more crowded, we heard no complaints from the prisoners or detainees, and on the contrary, praise for the treatment by the staff. Nevertheless, the conditions require improvement, and it is to be hoped that the renovation will be carried out quickly” (my letter of March 2, 2011). After my visit to the Shatta (Shita) prison, I sent a letter to the prison warden in which I noted, among other things, that “at the basic level, we are concerned with old prisons, and the crowding is, therefore, not insignificant in some of the cells” (my letter of March 6, 2017). Actually, there is a high degree of overcrowding in certain Israeli prison facilities because they were built long ago, some in the British Mandate period, and there is even a remnant of the Ottoman period (the Russian Compound). Certain police stations that comprise detention rooms suffered from overcrowding. In the closing days of my tenure as Attorney General, I visited one of the police stations in the Judean foothills that comprised detention cells. A very crowded cell that was “intended” for six detainees in three bunk beds (and would even then be very crowded), held 12 people, and in addition to the six in the beds, two slept on the shelf over the shower that was in the cell, two shared beds with others (good lord), and two on the floor, who in certain conditions – if they did not pose particular danger – would be taken out into the hall to sleep in the air of the hallway rather than in a suffocating room. I turned, almost in a frenzy, to the Ministry for Public Security, and I was promised that the matter would be resolved quickly.

46.       It cannot be denied that much has been done over the last few years to improve the situation. Prisons have been renovated and new ones have been built, and there are proven good intentions, but that is not enough. As noted, a number of reports addressed the issue of prison conditions over the years, committees were convened, and the complex reality of budgeting and logistics led to a situation in which, for years, efforts have been made, plans devised, and steps even taken – and I say this with no intention to offend anyone – but an appropriate solution in the field has not been provided for a large part – too large a part – of inmates.

47.       We will already state that we are aware that, at the end of the day, the hurdle is economic and concerns the priorities of the decision makers, and “the needs of your people are many”.[2] None of the decision makers wishes to harm the prisoners and detainees, but the absolute majority of inmates “enjoys” living space that is lower, by any standard, from what is acceptable in a civilized state, as we shall elaborate below. While it is generally neither the practice nor the place of this Court to intervene in setting priorities for the division of state resources by putting ourselves in the authority’s shoes, that is not what we are concerned with here. No one disputes that basic rights cannot retreat before budgetary considerations (HCJ 451/94 Miller v. Minister of Defence [16]), inasmuch as “the rhetoric of human rights must be backed up by a reality that places those rights at the forefront of national priorities. Protecting human rights costs money, and a society that respects human rights must be willing to carry the financial burden” (Aharon Barak,  Interpretation in Law – Constitutional Interpretation, vol. 3, (2013) 528 (Hebrew) (hereinafter: Barak, Interpretation in Law); and also see HCJ 9134/12 Gavish v. Knesset [17] and references there). As noted, the present matter stands at the core of human dignity— the realization of the right to a minimal dignified existence in the most basic sense – and budgetary considerations cannot justify their continued violation over the course of decades.

International and comparative law

48.       In their petition, written responses, and oral arguments before the Court, the Petitioners made many references to international and comparative law. Indeed, the subject of the appropriate living space for prisoners and detainees has been addressed by many countries, of all types, both among those considered progressive and those that do not enjoy a good reputation in this area, and has been widely addressed by international enforcement agencies and other international bodies. While this is not lost upon the Respondents, who are of the opinion that caution should be exercised in comparing these laws to the balance struck by the Israeli legislature, and it is clear that every state has its own character, needs and abilities, I am of the opinion that the scope of comparative law’s interest in the area – together with the fact that we are concerned, to a great extent, with a universal question of human dignity – requires that we train our sites abroad. That clearly does not imply entirely adopting an arrangement of any particular country into our legal system. The survey is meant to enlighten us in our search for a solution to the problem we face. An incarcerated person, as such, is one and the same throughout the world. History and literature are laden with commentary and stories concerning imprisonment and the conditions of imprisonment in regimes to which we have never been, and will not be similar in any shape or form, not only in the distant past, but even in recent generations and in our own time, even close to us, whether a calaboose or a gulag. Israel seeks to be and to appear as the most civilized of nations, and while this area may physically be situated “behind closed doors”, it is a moral showcase.

International law

49.       We will, therefore, begin with the position of international law. The relevant requirement established under art. 10(1) of the International Covenant on Civil and Political Rights of 1966, states: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. While the phrase “with humanity and with respect for the inherent dignity of the human person” is inherently of a general nature, minimal floor space is among the basic conditions to which every prisoner is entitled under the United Nations Standard Minimum Rules for the Treatment of Prisoners, last amended in 2015:

All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation (rule 10, emphasis added – E.R.).

            It should be noted that despite the express requirement to provide minimum living space, the rules do not specify a concrete standard that must be met.

50.       An additional source for interpreting the requirement for the appropriate care of prisoners can be found in the work of the UN Human Rights Committee, whose task is to supervise the execution of the Covenant (not to be confused with the Human Rights Council and its well-known discriminatory attitude towards Israel). The Committee addresses the issue of prison overcrowding as part of its periodic review of the member states, as well as in reviewing petitions submitted to it concerning the violation of their obligations under the Covenant and the Rules. An examination of cases reviewed by the Committee reveals that providing appropriate living space is indeed part of the obligation to treat prisoners “with humanity and with respect for the inherent dignity of the human person”. However, it is difficult to discern any rigid standard for appropriate living space in the Committee’s reports.

51.       International law also examines the conditions of imprisonment from the perspective of the prohibition of cruel, inhuman or degrading punishment. This prohibition, while worded in a general manner, is anchored in art. 5 of the International Covenant on Civil and Political Rights, and in art. 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, ratified by Israel in 1991.

52.       According to the Petitioners, providing less than 4.5 square meters of living space per prisoner, independent of lavatory and shower areas, in a shared cell constitutes a violation of the said prohibition. Support for this view can be found in the reports of the UN Committee against Torture, which note that member states must provide living space of at least that scope (see, for example: Comm. against Torture, Concluding observations on the fifth periodic report of Estonia at its Fiftieth Session, U.N. Doc. CAT/C/EST/CO/5 (Jun. 17. 2013)., para. 17; Comm. against Torture, Concluding observations on Bulgaria at its Forty-seventh Session, U.N. Doc. CAT/C/BGR/CO/4-5 (Oct. 31. 2011), para. 21). However, in most cases, the Committee does not require the reviewed state to meet a concrete objective in regard to the average living space per prisoner, but rather suffices with a general statement as to the need to observe the Rules (see, for example: Comm. against Torture, Concluding observations on the fifth periodic report of Colombia at its Fifty-fourth Session, U.N. Doc. CAT/C/COL/CO/5 (May. 29. 2015), para. 17; and see: Comm. against Torture, Concluding observations on the third periodic report of Philippines at its Fifty-seventh Session, U.N. Doc. CAT/C/PHL/CO/3 (Jun. 2. 2016), para. 27).

53.       A minimum standard of 4 square meters per prisoner, excluding lavatory and shower areas, and a total 6 square meters per prisoner, including those areas, for a prisoner in a single-occupancy cell, was recently established by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT), which is responsible for the execution of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 1950. It is significant that while the UN Committee views 4 square meters as an appropriate criterion, the European Committee regards that as a rigid minimum standard that is not, itself, sufficient to ensure proper living conditions:

Clearly, the aforementioned examples suggest that the 4m² per prisoner standard may still lead to cramped conditions when it comes to cells for a low number of inmates. Indeed, given that 6m² is the minimum amount of living space to be afforded to a prisoner accommodated in a single-occupancy cell, it is not self-evident that a cell of 8m² will provide satisfactory living space for two prisoners. In the CPT’s view, it is appropriate at least to strive for more living space than this. The 4m² standard is, after all, a minimum standard (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment, Living Space per Prisoner in Prison Establishments: CPT Standards, CPT/Inf (2015) 44, para. 15 (emphasis added – E.R.)).

54.       In addition to the establishment of the said standard, the European Court of Human Rights – which acts under the authority of the European Convention – addressed a large number of applications in regard to the prison conditions in various states. In this framework, a clear rule was created on the question of when the incarceration of a prisoner would constitute a violation of the prohibition upon cruel, inhuman, or degrading punishment established under art. 3 of the Convention. Under the case law, meeting the standard of 4 square meters of living space per prisoner (exclusive of additional areas), as stated, is a central consideration in evaluating the conditions of imprisonment (Karalevicius v. Lithuania, no. 53254/99, § 36, ECHR 2005). Moreover, it was held that where the living space allotted to a prisoner is less than 3 square meters, the Court would view the crowding itself as grounds for a violation of the prohibition upon cruel, inhuman or degrading punishment (Ananyev v. Russia, no. 42525/07, § 145, ECHR 2012 (hereinafter: the Anyanev case); Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002; Badila v. Romania, no. 31725/04, § 72, ECHR 2011 (hereinafter: the Badila case); Ostrovar v. Moldova, no. 35207/03, § 82, ECHR 2005; Lonia v. Croatia, no. 8067/12, § 76, ECHR 2014 (hereinafter: the Lonia case)). It should be noted that even when the allotted living space per prisoner is greater than 3 square meters but less than the 4 square meter standard, additional factors – such as the ventilation and heating of the cell, exposure to daylight, basic hygienic conditions and the possibility of using the lavatory without an infringement of privacy – may tip the scales in favor of a finding of cruel, inhuman or degrading punishment (the Badila case; Peers v. Greece, no. 28524/95, § 70, ECHR 2001).

55.       As for the consequences of such a violation, European law – as a rule – grants compensation for non-monetary harm to a person who suffered cruel, inhuman or degrading punishment; and see in this regard: Olszewski v. Poland, no. 21880/03, ECHR 2013, in which  the Court awarded the applicant €5000 for his injuries due to the conditions of his imprisonment – foremost among them, being held in a space that was less than 3 square meters for a cumulative period of some 5 years; and see Marin v. Romania, no. 79857/12, ECHR 2014, in which the applicant was awarded €15,300, in part due to the crowding in the facilities in which he was held for a period of about 10 years; and see the Lonia case, in which the Court awarded the full sum requested – €10,000 – inter alia due to the fact that the plaintiff was held for a year of his overall incarceration in a living space that was smaller than 3 square meters.

56.       It should also be noted that in some cases the Court exercises its authority under art. 46 of the European Convention, which permits instructing the member states to take operative steps, whose execution is supervised by the Committee of Ministers. Although the Court’s judgments are declaratory in nature, the panel may – under the said authority – establish a timeframe for the execution of its instructions, or recommend concrete steps to be taken by the country to meet them. That was done in the Orchowski case, cited above, which examined the conditions of imprisonment of the applicant in eight different Polish prison facilities over the course of 6 years, as of the date of the judgment. In view of the finding that the applicant had been held for most of that period in an area that was less than 3 square meters, and at times he was allotted even less than 2 square meters, the Court ruled that the prohibition upon cruel, inhuman or degrading punishment had been violated in his regard. In addition to awarding damages for the applicant’s injuries, the Court ruled that that the state had to establish long-term solutions for the problem of overcrowding in the prison system in order to meet acceptable standards. It was further held that if adequate steps were not adopted to improve the conditions of imprisonment, the state must adopt a more lenient penal policy or put in place a system of alternative means of punishment.

57.       The Ananyev case concerned three complaints by Russian prisoners against the conditions of their imprisonment. In addition to the finding that the applicants’ living conditions constituted cruel, inhuman or degrading punishment, the Court ruled that the problem of overcrowding in Russia – which affects various prison facilities throughout the country – requires long-term solutions, with emphasis upon reducing the number of remands in custody, and granting early release to prisoners:

… the Court considers it important for the purposes of the present judgment to highlight two such issues which need inevitably to be addressed by the Russian authorities in their ongoing struggle against persistent overcrowding of remand centres. The first issue concerns the close affinity between the problem of overcrowding, which falls to be considered under art. 3 of the Convention, and an excessive length of pre-trial detention … The second issue, which is closely linked to the first, concerns possible additional ways of combating the overcrowding through provisional arrangements and safeguards for the admission of prisoners in excess of the prison capacity (ibid., para. 196).

            It was further required that Russia present a binding time-frame for the adoption of the said measures, within six months from the date on which the Court’s judgment became final.

58.       In the Torreggiani case, as well, which treated of the conditions in two Italian prisons, the court allotted the state one year to develop a plan for addressing the overcrowding issue, and recommended that the plan include means for reducing the number of remand prisoners, and early release. Another judgment in which the European Court exercised its authority under art. 46 was recently issued in Varga and others v. Hungary (no. 14097/12, ECHR 2015), which addressed the applications of six prisoners, each held in a different facility. The court held that the limited space allotted to the prisoners, along with other poor conditions, constituted cruel, inhuman or degrading punishment, and the state was given a period of six months to present a plan for remedying the conditions of imprisonment and reducing the number of prisoners and detainees.

The United States

59.       The problem of overcrowding in prisons in the United States – generally viewed as one of the most civilized countries – is among the most severe in the Western world (Shepard Simpson & Lauren Salins, Efforts to Fix a Broken System: Brown v. Plata and the Prison Overcrowding Epidemic, 44 Loy. U. Chi. L.J. 1153, 1157 (2012) (hereinafter: Simpson & Salins); and see, Paul Paulus, Garvin McCain & Verne Cox, Prison Standards: Some Pertinent Data on Crowding, 45 Fed. Probation 48 (1981)). As a result, the question of the average living space per prisoner has not infrequently come up for review before the federal courts. In various petitions filed in regard to prison conditions, it was argued that overcrowding rose to the level of “cruel and unusual punishment”, which is the American equivalent to the said cruel, inhuman or degrading punishment in international conventions, and which is prohibited under the Eighth Amendment to the U.S. Constitution.

60.       The U.S. Supreme Court first addressed the issue in Rhodes v. Chapman (101 S. Ct. 2392 (1981) (hereinafter: the Rhodes case)), which concerned the constitutionality of the practice of “double-celling” – i.e., holding two prisoners in a cell intended for single occupancy. In denying the appeal, the majority held that the overcrowding did not constitute cruel and unusual punishment under the circumstances, inasmuch as the overcrowding did not lead to deprivations of the prisoners’ essential living conditions, such as sanitation, food quality, medical care, and so forth, nor did it increase violence among inmates.

61.       Since the reasoning in Rhodes was specific to the conditions of the concrete case, and refrained from drawing clear lines for a forward-looking comprehensive test, the federal courts were left broad discretion (see: Simpson & Salins, p. 1164), whose approaches could be divided into three primary views (Susanna Y. Chung, Prison Overcrowding: Standards in Determining Eighth Amendment Violations, 68 Fordham L. Rev. 2351, 2362-2371 (2000). According to the first approach, overcrowding alone should not be viewed as a criterion for a violation of human rights, but rather the question to be addressed is whether the prison living conditions as a whole represent a violation of the prohibition upon cruel and unusual punishment. The second approach, which is substantively similar to the majority opinion in Rhodes, holds that the overcrowding must have a negative effect upon the prisoner’s living conditions – e.g., the quality of food served, or the medical care provided – in order to be deemed unconstitutional. According to the third approach, reminiscent of the view of the European Court, holding a prisoner in a small living space may itself constitute cruel punishment.

62.       In 2001, the U.S. Supreme Court was faced with an appeal by the governor of California in the Plata case, challenging the judgment of the federal court in a class action by inmates in the state. That judgment ordered the State of California to reduce the number of prisoners in the state by no less than 38,000 to 46,000 inmates within a period of two years. By a five-to-four majority, the Court denied the appeal and upheld the decision of the appellate court.  Although the majority did not reverse the Rhodes ruling that measured the constitutional infringement in terms of the basic living conditions of the inmates, it held that overcrowding constituted a primary cause of the violation of the prohibition upon cruel punishment, and therefore, there was no alternative but to reduce the number of inmates:

The population reduction potentially required is nevertheless of unprecedented sweep and extent. Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners’ basic health needs. Needless suffering and death have been the well documented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short term gains in the provision of care have been eroded by the long-term effects of severe and pervasive overcrowding (ibid., at p. 1923, per Kennedy, J.).

63.       It should be noted that the Supreme Court’s decision in regard to the existence of disproportionate overcrowding in the prison was not based upon a calculation of the average living space per prisoner, but rather upon data concerning capacity – 200% at the relevant time. Reducing between 38,000 and 46,000 inmates was thus intended to bring occupancy down to 137.5% of capacity, which represented the compromise reached by the appellate court between the demand of the prisoners (130% of capacity) and the limitations of the state. It was further held that it was not necessary that every facility achieve the said standard, but that it would suffice that it be achieved on average:

There is no requirement that every facility comply with the 137.5% limit. Assuming no constitutional violation results, some facilities may retain populations in excess of the limit provided other facilities fall sufficiently below it so the system as a whole remains in compliance with the order (ibid., p. 1941).

64.       It would seem that the decision in the Plata case expressed the Supreme Court’s readiness to retreat from the demand of a direct causal connection between the size of an inmate’s cell and a worsening of his basic living conditions, in favor of recognition – cautious as it may be – of overcrowding itself as a cause for a constitutional violation, in view of its inherent consequences for the services provided in the prison. And note: although the decision did not expressly recognize the right of every prisoner to minimal living space, its consequences were far-reaching in terms of the remedy (“perhaps the most radical injunction issued by a court in our Nation’s history,” per Scalia, J., dissenting) – ordering the state to reduce a concrete number of inmates (although leaving the manner of execution to the state’s discretion) in a clear timeframe.

Canada

65.       In Canada, too, petitions by prisoners against overcrowding are examined from the perspective of the prohibition upon cruel and unusual treatment or punishment anchored in sec. 12 of the Canadian Charter of Rights and Freedoms of 1982, to which this Court has referred on more than one occasion. The Canadian Supreme Court has yet to address the concrete question of average living space per prisoner, but a review of recent decisions of the Court of Queen’s Bench of Alberta can cast some light on the position of Canadian law in principle on the issue before us.

66.       The Trang case (Trang v. Alberta (Edmonton Remand Centre), 2010 ABQB 6) concerned a petition by some 25 prisoners for declaratory relief stating that the conditions in the facility in which they were being held pending trial constituted a violation of the said prohibition. It was argued, inter alia, that “double-bunking” of inmates in cells intended for single occupancy – ranging in size from 7.9 square meters to 8.1 square meters, i.e., some 4 square meters per inmate – constituted cruel punishment. This is how the court described the overcrowding in the facility:

The evidence shows that the cells are all double-bunked (except medical and segregation), that the cells were originally designed for one person, that there is not enough room for both roommates to walk around or exercise in the cell at the same time, and that there was only room for one person to sit at the table, leaving the bunk bed for the other. There is no toilet privacy (ibid., para. 1013).

            It was held that although double-celling itself is not an inherently prohibited practice (in reliance upon the 1982 decision of the Federal Court of Canada in Collin v. Kaplan (CanLII 2982 (FC)), it could not be tolerated in the present circumstances:

By itself double bunking is not a Charter breach. But many of the Applicants were on strict rotation schedules, which meant that they were only out of the cells for a half hour at a time, and that depending on the rotation, their total time out of cells ranged from 3 hours to 6 hours. Assuming an 8 hour sleep period, this means that they were awake and in the cells for 10 to 13 hours a day.

…

In my view, the amount of time spent reviewing disclosure, out at court, or for that matter, attending medical or dental parade, does not mitigate the fact that these Applicants spent a very significant amount of time in a very small cell, with little access to recreation or other activity. They could not even watch television, since the TVs were in the common area. I conclude that the s. 12 rights of these inmates were breached.

Obviously, it is the combination of double-bunking in small cells for 18-21 hours a day, with limited access to recreation and other activities that leads to this conclusion (ibid., paras. 1013, 1024-1025, emphasis added – E.R.).

67.       The Walters case (R. v. Walters, 2012 ABQB 83), which concerned petitions of remand prisoners being held in that same facility pending trial, addressed the question whether triple-celling – i.e., holding three in a cell intended for one – constituted a violation of the Charter prohibition upon cruel punishment. As noted, we are speaking of 8 square meter cells, such that the living space allotted to each detainee amounted to some 2.6 square meters. In addition, one of the detainees slept on a mattress due to insufficient space for an additional bed. When it was found that the only reason for the overcrowding of the facility was budgetary, the court ruled that holding three people in a cell intended for one constituted cruel punishment, and a fortiori in regard to remand prisoners who enjoy a presumption of innocence.

68.       In conclusion, no one denies that the problem of prison overcrowding exists in many countries – inter alia, as a result of the modern punitive policy that has led to a significant decline in executions and a rise in the number of prisoners – and they seek a variety of solutions to contend with it. Accordingly, the picture provided by the comparative survey is complex, and it is therefore difficult to draw a direct analogy to the situation in this country. However, despite the differences among the various laws in regard to the scope – and at times, even the very existence – of a minimum standard for living space, there would appear to be a growing willingness, both by international systems and the legal instances of the various states, to exercise active means to remedy the problem of overcrowding. Against this background, we will now return to address the present petition, but not before expressing the view of Jewish law on the subject of the treatment of prisoners.

The treatment of prisoners in the Jewish heritage

69.       The Jewish conception of human rights derives, first and foremost, from the principle stated at the beginning of the book of Genesis in describing the outset of human history:

Then God said, “Let us make mankind in our image, in our likeness, so that they may rule over the fish in the sea and the birds in the sky, over the livestock and all the wild animals, and over all the creatures that move along the ground.” So God created mankind in his own image, in the image of God he created them; male and female he created them (Genesis 1:26-27; emphasis added – E.R.).

70.       In the same spirit, the poet of the Psalms would later write: “You have made him little less than divine, and adorned him with glory and majesty” (Psalms 8:6; emphasis added – E.R). In the tannaitic period, Rabbi Akiva would explain: “Beloved is man for he was created in the image [of God]. Especially beloved is he for it was made known to him that he had been created in the image [of God], as it is said: For in the image of God He made man” (Mishna Avot 3:14).

71.       With the passage of time, the principle “For in the image of God He made man” would become one of the most centrally important principles that Judaism gave to humanity, and particularly to the free world. Human dignity and liberty are, therefore, a direct result of creation in God’s image. This is a principle that “impliedly and expressly encompasses, instructively and beautifully, the basis and foundation of all society, the grounding of the fundamental norm of the legal world” (Justice M. Elon, In the Image of God He created Him – Human Dignity and Liberty, in Parashat HaShavua – B’resheet 1(A. Hacohen & M. Vigoda, eds. 1972) (Hebrew)). And as Prof. M. Elon also writes:

These two fundamental values – human dignity and human liberty – are interconnected, one influencing the other and uniting as one in our hands. So it is in the sources of Jewish heritage, and so it is in the Western democratic world. In the Jewish world, these two fundamental rights derive from one source – the fundamental principle of the creation of humanity in the image of God (Menachem Elon, Human Dignity and Liberty in Jewish Heritage, 12(1) Mahanayim: “On Halakha and Law” 18 (1995) (Hebrew)).

In his article Shelihut, in Yemei Zikaron (1987) (Hebrew), Rabbi J.B. Soloveitchik writes: “The value of human dignity is a central axis of many halakhot … and it may well be that all the interpersonal mitzvot are based upon the value of human dignity … In his commentary on the verse ‘Let us make mankind in our image, in our likeness’ (Genesis 1:26), Nachmanides refers to the Psalms (8:6), where the expression ‘in our image, in our likeness’ is replaced by ‘and adorned him with glory and majesty’. Thus, the image of God is replaced by the ‘dignity of God’, and its equivalent in the language of the sages is ‘human dignity’.” Also see, N. Rakover, Great is Human Dignity: Human DIgnity as a Supreme Value, 18-26 (1998) (Hebrew) and the many references there; and the Sages have said (Babylonian Talmud Berakhot 19b), “Great is human dignity, as it overrides a prohibition in the Torah”; and see the comprehensive entry in The Encyclopedia Talmudit, vol. 26, 477,  s.v. “kevod ha-beriyyot” (which states, inter alia, “A person must be careful in regard to human dignity – and Aharonim [Jewish legal decisors living after the publication of the Shulhan Arukh (1563 CE) – ed.] have written that this is a mitzva – and it is forbidden to embarrass or degrade”).

72.       Under the principles of Judaism, the principle of the creation of human beings in the Divine image requires that prisoners must also be treated with dignity. Indeed, prisoners are incarcerated because of their crimes, which arouse our revulsion and disgust, but they remain human beings, and they are entitled to be treated humanely, in accordance with the accepted criteria of a progressive society, as Israeli society seeks to be. The vulnerability of prisoners derives from two sources: first, from the very fact that they are deprived of their freedom – the greatest of all human rights, along with the right to life – and they are in the custody of the state (see, the Prison Privatization case [4], para. 20 of the opinion of Beinisch, P.); second, because – at least the criminal prisoners – largely “lack a lobby” in the political-public sense, although the Public Defender’s Office fights on their behalf, as do rights organizations (as in the present case), and the Prisoner Rehabilitation Authority in carrying out its mandate. Jewish law in this area begins with the presumption that the rights of prisoners must be respected, and should not be violated except to the extent required by the purpose of their incarceration. “Beloved is man for he was created in the image [of God] – every person, great and small, anonymous and renowned – and we are commanded to protect and preserve all of their rights, even if we are appalled by acts that they committed” (MApp 1/87 Dananashvili v. State of Israel [18], 289, per Elon, J.; emphasis added – E.R.).

73.       Before addressing the scope and nature of prisoners’ rights in Jewish law, we will first note that, as a rule, imprisonment as a means of punishment was unknown to the sources of Jewish law, and it is absent from the list of punishments detailed in the Torah (see, I. Wahrhaftig, “Then you shall select cities to be cities of refuge for you” – Exile as an Alternative to Imprisonment, Parashat HaShavua – B’midbar, 289 (A. Hacohen & M. Vigoda, eds,) (hereinafter: Wahrhaftig) (Hebrew); CrimA 344/81 State of Israel v. Segal [19], 327 (hereinafter: the Segal case); and see, Rabbi E.Y. Waldenberg, Imprisonment as Punishment, B’tzomet haTorah v’haMedina, vol. 1, 389 (Y. Shaviv, ed., 1991) (Hebrew); Rabbi M. Shelpovesky, Imprisonment, op.cit., 401 (Hebrew); Rabbi L. Kaminer, Imprisonment in Israel, 9 Tehumin 147 (5748) (hereinafter: Imprisonment in Israel) (Hebrew)). The sages mention “prison” (see, e.g., Baylonian Talmud Pesachim 91a – and note the distinction there between a “prison of the gentiles” and “a prison of Israel” – which Rashi explains as concerning the compelling of a divorce or the payment of a debt, for example), and Maimonides lists imprisonment among the penalties that a court can impose (Laws concerning Murder, 2:5, and Sanhedrin 24:9). But see, A. Kirschenbaum, Jewish Penology: The Theory and Development of Criminal Punishment among the Jews Throughout the Ages, 428-429 (2013) (hereinafter: Kirschenbaum) (Hebrew)), according to whom “imprisonment was a not a Jewish form of punishment” and was rarely mentioned in biblical and talmudic literature as a form of punishment (ibid., 429)). Indeed, in principle, Jewish law prefers more “proportionate” forms of punishment that do not deprive a person of liberty (see, Aviad Hacohen, Life Imprisonment that is not for Life, and Prisoner Dignity and Liberty: A Jewish Law Perspective, 204 HaSanigor 15 (2014) (hereinafter: Hacohen) (Hebrew)). According to Wahrhaftig, as opposed to imprisonment, “biblical punishment was a one-time penalty that prevented separating the offender from his natural surroundings, and facilitated his reincorporation into society immediately upon the conclusion of the legal process” (Wahrhaftig, p. 291; and see, HCJ 5304/92 Perah Association v. Minister of Justice [20], 744, per Elon, D.P. (hereinafter: the Perah case). This is so even though the Bible was aware of imprisonment as a form of punishment – with a trial or without – in the ancient world in general, and there is no lack of examples in the Bible, such as – in ancient, non-Jewish kingdoms – the story of Joseph in Egypt (Genesis 39-41) and the story of Hananiah, Mishael and Azariah in Babylonia (Daniel 3), and in the Judean kingdom in the case of Jeremiah (chaps. 32-33, 37); the imprisonment of King Jehoiachin (II Kings 25: 27-29); and King Jehoahaz (II Kings 23:37); and King Zedekiah in Babylonia (Jeremiah 52:11); and also see Ezra 7:26. As for the Talmudic period, Kirschenbaum writes that “we have not found that the Sages instituted it for any offense whatsoever” (ibid., 429).

74.       In their article A City of Refuge in a Modern Penal System (Hebrew) (I. Wahrhaftig and S. Rabinowitz, Ir Miklat b’Maarekhet Anishah Modernit – Dugmah Yissumit, miTorat haAnihsah shel haMishpat haIvri, 2 Sha'arei Mishpat 353–81 (2001) and the references there (hereinafter: Wahrhaftig & Rabinovitz), the authors quote various scholars on the subject of the purposes of punishment in Jewish law. Prof. I. Kirschenbaum is of the opinion that “the place of punishment in classical Jewish law, ‘Torah law’, is religious, mystical, educational: it is intended to refine the person, raise his spiritual level and bring him closer to the God of law”. Prof. S. Albeck notes that “the laws of punishments and offenses in the Torah are not intended for society’s good, to protect it from the threat of criminals, their purpose is not to benefit society and keep it from harm, but rather they are meant to teach the individual to conduct himself for his betterment, as offenses are but flaws in the offender … and punishment is but penance”. On their face, these purposes of punishment in Jewish law are not consistent with imprisonment, which is particularly grounded upon the ideas of retribution and deterrence. However, in real life, matters are not so simple and direct. Every society sought means for its protection. Imprisonment is one such means for achieving that, and in the historical-halakhic sense there was a type of gradation.

75.       Ancient Jewish law recognized imprisonment of a person primarily as a means of coercion, or as an intermediate period of detention in contemplation of another penalty imposed upon the offender. It can therefore be said that prisons were originally intended for remand rather than to serve as a criminal sanction (see, M. Elon, Imprisonment in Jewish Law, Pinchas Rosen Jubilee Volume, (H. Cohn, ed., 1962) 174-178 (Hebrew) (hereinafter: Imprisonment in Jewish Law); and also see, Hacohen, p. 15). This is what Samson Raphael Hirsch (19^th cent., Germany) stated in his commentary to the Bible:

The punishment of imprisonment, with all its loss of hope and the corruption of the morals of those residing behind the prison walls, with all the sorrow and sadness that it brings to the wife and children of the prisoner – has no place in God’s law. The place of the dismal prison towers of criminality are unknown in the kingdom of Torah. Torah law has only arrest and investigation, and this could only be short-term arrest (Hirsch, Commentary on the Torah, Exodus 21:6).

This is lovely to say, and it lends support to the rehabilitative aspect of imprisonment today, which is intended to prevent a further decline into criminality and harm to the family. And yet the question remains, what of protecting society, retribution and deterrence, which are the basis for incarceration today. A brief discussion follows.

76.       Indeed, situations of imprisonment and the attendant suffering of prisoners can be found in the Bible and the Talmud, in both Jewish and non-Jewish contexts. We learn of the sad state of prisoners at the time, and of the harsh conditions to which they were subjected, which are still to be found in some contemporary societies. Here are some examples:

            Joseph’s incarceration in Egypt is described as follows: “And Joseph’s master took him and put him into the prison, the place where the king’s prisoners were confined; he remained there in prison. But the Lord was with Joseph and showed him steadfast love; he gave him favor in the sight of the chief jailer” (Genesis 39: 20-21, emphasis added – E.R.). Nachmanides’ commentary, ad loc., interprets the term “prison” as “a dungeon [or “pit”] built below ground, with a small opening above through which the prisoners enter, and which provides them light”. And indeed, Joseph goes on to say: “For in fact I was stolen out of the land of the Hebrews; and here also I have done nothing that they should have put me into the dungeon [literally: “pit” – ed.]” (Genesis 40:15, emphasis added – E.R.). The dungeon would appear to have been the characteristic prison. The prison was a deep, dark dungeon in which people were bound in iron chains, and starved. It would seem that there are no few places in the world where prisons have remained unchanged since those ancient times.

            The Bible tells of Joshua’s request that Moses imprison Eldad and Medad, two who had prophesied in the camp, fearing that they might undermine Moses’ leadership: “My lord Moses, restrain them!” (Numbers 11:28). Onkelos renders the Hebrew “restrain” [k’la’em] as Aramaic “esarinun”, that is, imprison them, and see one of the two interpretations given by Rashi for the term “k’la’em”: “Put them in prison …”; and also see, Elishai Ben-Yitzhak, “Adoni Moshe K’la’em” – On Imprisonment in Jewish Law, Parashat HaShavua – B’midbar 73 (A. Hacohen & M. Vigoda, eds,) and see the references in fn. 4 (hereinafter: Ben-Yitzhak) (Hebrew).

            Here are additional verses from the Prophets and the Writings that teach us of the suffering of prisoners:

“… to open the eyes that are blind, to bring out the prisoners from the dungeon, from the prison those who sit in darkness” (Isaiah 42:7).        

“Some sat in darkness and in gloom, prisoners in misery and in irons” (Psalms 107:10). Psalm 107 is the biblical source for the rule concerning birkat hagomel [the prayer of thanksgiving for deliverance from danger] or the prayer of personal thanksgiving (Babylonian Talmud Berakhot 54b; Shulhan Arukh OH 219) that four categories of people must express thanks, all of whom are derived from this psalm. One category is that of a person who was “incarcerated in prison and released”.

“As for you also, because of the blood of my covenant with you, I will set your prisoners free from the waterless pit. Return to your stronghold, O prisoners of hope; today I declare that I will restore to you double” (Zacharia 9:11-12).

            Also see the Talmudic statement: “A prisoner cannot free himself from prison” (Babylonian Talmud Berachot 5b), that is, a person who has become used to the hardships of prison life cannot free himself from his chains of bondage, but requires outside assistance. Also see the Talmudic story of Rabbi Akiva who was meticulous in his observance of the mitzva of handwashing while in prison to the point of endangering his life due to his very limited water ration (Babylonian Talmud Eruvin 21b).

77.       In the talmudic period, prison was referred to as “kipa”, which, as noted, was an innovation in terms of the halakhic understanding of punishment. The Mishna notes two situations in which a person is placed in kipa. The first is where the accused has repeatedly committed a severe offense punishable by karet,[3] although he has already been punished twice (or, according to one view, three times) by flogging. The second is where a murderer cannot be sentenced to death by the court due to a procedural flaw (also see, Wahrhaftig, p.3; Arie Reich, The Punishment of Kipa in Jewish Law, 7 Maaliot 31 (1986) (Hebrew); Imprisonment in Jewish Law, 199; Imprisonment in Israel, 147). This is what the Mishna states as to the conditions of kipa imprisonment:

He who was flogged and then flogged again is then placed by the court in kipa and fed barley until his stomach bursts. One who commits murder without witnesses is placed in kipa and fed the bread of adversity and water of affliction (Mishna Sanhedrin 9:5).

            In his commentary to the Mishna, Maimonides explains that what is being referred to is “a cell in the prison that is equal in height to that of a man, and there is not enough room for him to undress or sleep (Commentary to the Mishna 9:5).

            Maimonides states the halakha in this matter as follows:

One who was flogged by the court for an offense punishable by karet, and flogged again for the very same karet offense, such as that he ate forbidden fat and was flogged for it, and ate forbidden fat again and was flogged for it, if he eats for a third time he is not flogged for it, but he is placed in kipa, which is a confined space equal to his height, in which he cannot lie down, and he is given bread of adversity and water of affliction until his intestines narrow and shrink, and then he is fed barley until his stomach bursts (Maimonides, Sanhedrin 18:4; emphasis here and below added – E.R.).

… One who kills and there were no witnesses who saw him together, but rather each saw him one after the other, or who killed in the presence of witnesses but without being warned, or the witnesses were refuted in the examinations but not refuted in the interrogations, all such murderers are placed in kipa and are fed bread of adversity and water of affliction until their intestines shrink, and then they are fed barley until their stomach bursts from the severity of the affliction (Maimonides, Murder 4:8).

            And see, The Encyclopedia Talmudit, vol. 31, 933-935, s.v. “kipa” and references there; and see Kirschenbaum, chap. 9, 256ff, who explains that what is concerned is harsh prison conditions intended to accelerate the offender’s death, as a sort of alternative to the death penalty that should appropriately have been imposed upon the offender, and so it should be understood. It should be noted that the Tosefta (Sanhedrin 12:4) and the parallel talmudic discussion bring an additional case of placing a person in kipa, but in which the means intended to hasten death are not imposed, but rather he is imprisoned until his death. Maimonides also refers to harsh, lengthy imprisonment for murder in circumstances in which the civil authorities did not impose the death penalty: “The [Jewish] court must, nevertheless, flog them severely almost to death, and confine them under severe conditions for many years, and cause them all kinds of suffering in order to frighten and deter other evildoers (Maimonides, Murder and the Preservation of Life 2:5, emphasis added – E.R.); for additional examples of imprisonment in the Talmud, see Imprisonment in Jewish Law, pp. 148-149).

78.       According to some of the commentators, the term “kipa” refers to the harsh conditions that characterized imprisonment, particularly the living space allotted to the offender. According to Mishna commentator Rabbi Ovadia Bertinoro, what was concerned was “a place as high as a person’s height and no more” (Sanhedrin 9:5). Rabbi Nissim Gerondi (14^th cent., Spain) explained that kipa derived from the root k-f-f, which implies that the person in it was bent over [kafuf] (Novellae of the RaN, Sanhedrin 81b (Hebrew)).

79.       Undeniably, the conditions of prisoners as expressed in the talmudic descriptions and in the commentaries on kipa, were very harsh. However, as explained, imprisonment was employed in talmudic times only for the most serious crimes, and primarily as an alternative to the death penalty. In view of Jewish law’s strict rules of evidence, it is reasonable to assume that we are speaking of extremely rare cases (see, Imprisonment in Jewish Law, 134; Reich, 33-35). Nevertheless, in his primary work, Maimonides addressed the human dignity of those punished by the court, ruling:

All of these measures should be applied in accordance with what the judge deems appropriate for the offender and is required in the circumstance of the time, and all he does must be for the sake of Heaven [without ulterior motive or extraneous considerations – ed.], and let human dignity not be taken lightly, for it overrides a rabbinic prohibition … He must be careful not to harm their dignity but only to increase respect for God, for whoever debases the Torah is degraded in the eyes of the people, and whoever respects the Torah will be respected by the people, and there is no greater respect for the Torah than following its laws and statutes (Maimonides, Sanhedrin 24:10, emphasis added – E.R.).

            And see The Encyclopedia Talmudit, s.v. “kevod hab’ri’ot” (ibid., 494), in regard to the possibility deviating from the four cubits of the Sabbath boundaries due to human dignity.

80.       Over time, and in consideration of changing times, the attempts of criminals to evade justice, and changes in methods of punishment in the various legal systems, by the 14^th century Jewish law began to reconcile itself to imprisonment as a “regular” sanction in the framework of “dina d’malkhuta” [the “law of the land”, i.e., the civil authorities – ed.]. From that time on, imprisonment was imposed for various offenses in many parts of the Jewish diaspora (Kirschenbaum, 431-434, and the many references there; Imprisonment in Jewish Law, 190ff; and see Ben-Yitzhak, 4).  While “we do not have many responsa treating of the prison conditions of prisoners” (HCJ 114/86 Weil v. State of lsrael [21], 494, per Elon, J. (hereinafter: the Weil case)), we can plainly say that Jewish law in this regard is clear, inasmuch as Jewish leaders throughout the generations took note and warned of the need to preserve the dignity of a person held behind bars (see: MApp 3734/92 State of Israel v. Zaki Azazmi [22], 79).

81.       We have already referred to what Maimonides wrote. The words of Rabbi Hayim Palaçi (19^th cent., Turkey) on the necessity to provide appropriate conditions for prisoners are particularly appropriate. Rabbi Palaçi ruled that the purpose of remand was only to prevent the prisoner from fleeing before trial, and he should not be subjected to any further suffering due to the conditions of detention. Concerning a person convicted of a non-capital offense, and perhaps under the influence of the conditions in the prisons of the Ottoman Empire at the time, he wrote:

He should not be incarcerated in a prison in which there is filth, that is a place of darkness and gloom, and where a person is in duress and wretchedness … for even if the Torah permits placing him in prison, it was not this type of prison that the Torah permitted … because even though he transgressed and was sentenced to prison, he remains part of the Jewish community (Responsa Hiqeqe Lev, part 2, chap. 5 (Henrew); and see Imprisonment in Jewish Law, 185, fn. 1).

82.       We also find that after the halakhic sages had to reconcile with the imprisonment of a debtor, the creditor was required to provide for the debtor’s maintenance (see, the Perah case [20], 742-743 and references there). Also see Justice Elon’s opinion in the Weil case [21], who turned to the biblical rules concerning the exile of a person who committed manslaughter to a city of refuge to conclude that his dignity should be maintained, and that “he should be provided possibilities for housing and sustenance, study and education, and other such necessities of life” (ibid., 495-497). Justice Elon further mentioned the rabbinic homily on the verse “lest your brother shall be dishonored before your eyes” (Deut. 25:3): “once he has been flogged he is considered your brother” (Mishna Makkot 3:15), and explained that “it is an important, beautiful principle that not only after he has served his sentence, but even while serving it, he is your brother and friend, and his rights and dignity as a person are preserved and remain” (ibid., 491). These words, even if we do not take the words “your brother and friend” as reflecting actual reality in their plain sense, but rather as an instance of a biblical expression (“For the sake of my family and friends, I will say, Peace be within you” (Psalms 122:8)), they convey the overtone of humanity, or remembering that the prisoner is a person like you and me even if, at present, he is deprived of his rights.

83.       It is interesting to note that even in regard to the biblical story of Israel’s descent to Egypt, one can find an approach that supports protecting the rights of prisoners and respecting their basic needs. When Joseph’s brothers are accused of “spying”, Simeon is placed in an Egyptian prison. The Bible describes the imprisonment as being carried out in public, stating: “And he picked out Simeon and had him bound before their eyes” (Genesis 42:24). But Rashi comments, ad. loc., “He bound him only before their eyes. And when they left, he released him and gave him food and drink” (emphasis added – E.R.; also see in this regard, Aviad Hacohen, Nishama Yetera Bamishpat – Human Dignity and Liberty in Genesis, Parashat Hashavua – B’resheet 336 (A. Hacohen & M. Vigoda, eds. 1972) (Hebrew)).

84.       Justice Elon well described the approach of Jewish law to prisoners and detainees in his opinions over the years (see in this regard, my article, Justice Menachem Elon – Humanity, Jewish Law in a Jewish State and Justice in a Jewish and Democratic State, 192 Hasanegor (2013) (Hebrew) and references there; A. Hacohen, Menachem Elon: Scholar of Law and Scholar in Law, 6 Sha’arei Mishpat 9, 16-18 (2013) (Hebrew)). Justice Elon’s statement in regard to penalties that the state sought to impose for illegal drug transactions are apt:

… In view of the intolerable situation in some of the prisons in regard to maintaining minimally humane living and diet conditions … it would be proper to prefer imposing heavy, consequential fines rather than imprisonment, as long as this would not be severely inconsistent with the circumstances of the crime and the offender and the need to protect public order and safety. Often, a heavy fine will achieve its purpose of deterrence of the offender and of leading him to a productive life, whereas imprisonment under the current, regrettable conditions in some of the prisons will, in addition to leading the offender to an irreparable entry into criminal society, often result in the degrading of the offender’s Divine image, and that, I fear, is not permitted to us (the Segal case [19], 327).

85.       While the above was written in the early 1980s, and there have undoubtedly been welcome changes in the conditions provided to prisoners, the underlying principle remains pertinent.

86.       In conclusion, underlying the long-standing principles of Jewish law in regard to the subject of prison conditions, beginning with a restrictive view of imprisonment in general, and a process of its acceptance as a necessary evil, stands the need to protect the dignity of prisoners and supply their elementary needs. In this sense, it would appear that the rules of Jewish law were relatively progressive in comparison the “classical” cruelty of imprisonment. “The adoption of imprisonment into Jewish law did not bring with it the attendant phenomena of cruelty and inhuman conditions in regard to diet, sleeping conditions, and so forth, that were common in various countries into the 19^th century” (Imprisonment in Jewish Law, 200). This can be extended even into the 20^th century, from the Russian gulags to the Apartheid regime of South Africa. In any case, it would seem clear that Jewish law requires the maintaining of a balance between the prisoner’s dignity and the punitive purposes of imprisonment. But most importantly for the present case, it seeks to protect the dignity of the vulnerable prisoner who requires rehabilitation. Jewish law would certainly support easing the conditions of prisoners to the extent that it does not undermine the purposes of punishment.

Jewish law in our legal system

87.       Inasmuch as this judgment is being given on the day of my retirement from the Supreme Court, and out of a love for Jewish law, I will allow myself the liberty to devote a few words to the status, place and force of Jewish law in our legal system, concerning which there was – and remains to some extent – a dispute among public figures and jurists (see, FH 13/80 Hendels v. Kupat Am Bank Ltd.[23] (hereinafter: the Hendels case)); my book, Paths of Government and Law, 168 (2003) (hereinafter: Paths of Government and Law) (Hebrew); Hanina Ben Menahem, Foundations of Law, 5740-1980 – Obligation to Comply or Obligation to Confer, 13 Shenaton Hamishpat Ha’ivri 257 (1987) (Hebrew); and see the aforementioned article by Aviad Hacohen, Menachem Elon: Scholar of Law and Scholar in Law; and see my article, Justice Menachem Elon – Humanity, Jewish Law in a Jewish State and Justice in a Jewish and Democratic State, 192 Hasanegor (2013) (Hebrew)). This dispute found expression, inter alia, in the debate between Justices M. Elon and A. Barak in regard to the interpretation of Foundations of Law, 5740-1980 (hereinafter: Foundations of Law) and of the Basic Laws treating of human rights. Briefly, the dispute focused upon the definition of the “Jewishness” of the State of Israel, and on the nature and character of the synthesis required by its being a “Jewish” state and a “democratic” state. The debate began with the meaning of the expression “the principles of freedom, justice, equity and peace of Israel’s heritage”, to which the Court is directed by sec. 1 of Foundations of Law in the case of a lacuna in the law. Justice Elon was of the opinion that the principles of “Israel’s heritage” are the principles of Jewish law, and the legislature had, thereby, granted primacy to Jewish law in judicial interpretation. As opposed to this, Justice Barak was of the opinion that the legislature had not granted “supra-legal” status to Jewish law, and it is not preferred over other legal sources that are employed in statutory interpretation. Years later, with the enactment of the Basic Laws concerning human rights, Justices Elon and Barak disagreed as to the interpretation of the purpose clauses of those Basic Laws, which establish that human rights are to be upheld in the spirit of “the values of the State of Israel as a Jewish and democratic state”. Justice Elon was of the opinion that the Jewish values of the State of Israel specifically include Jewish law, whereas under Justice Barak’s approach, they should be interpreted “at a level of universal abstraction”, that is, in a more general, broad way (for more on this subject, see my article, Malkhut Yisrael l’umat Dina D’malkhuta – Upon the publication of the Book in Honor of Judge Gershon German “Melekh Yisrael”, 22 Mehkarei Mishpat 489, 496 (2005) (Hebrew) (hereinafter: Malkhut Yisrael l’umat Dina D’malkhuta)).

88.       The opposing views presented by the learned Justices Elon and Barak were not resolved, and it is doubtful that they will be. Perhaps common sense allows that they need not be resolved as a binary opposition, but rather by the golden path of the middle road. In this regard, the words of philosopher Prof. Eliezer Goldman, in his article The Law of the State and the Halakaha – Is there a Contradiction, 65 Shedemot 70-79 (1978) (Hebrew) (also published in his book Theoretical Enquiries – Jewish Thought in the Past and the Present, 387 (D. Statman & A. Saguy, eds.) (1996) (Hebrew)), largely remain apt. He wrote (p. 388) that “…a large measure of tact and moderation is required of all parties. A stubborn insistence upon ideological principles of secularism or on the state’s loyalty to halakha might lead to a disintegration of shared national life … no enduring national reality can embody a consistent stance in regard to the Jewish national character or the relationship between the state and halakha. It will reflect an attempt at mutual, practical adaptation among groups whose views on the desirable politico-legal regime for the Jewish State is only partially congruent, and is at odds on some central issues”. Having said that, it would seem on the face of it that there is no dispute, in principle or in general, that Jewish law has a place of honor in our legal system. All would agree that Jewish law is an important source among the sources of Israeli law. All would agree that Jewish law is a treasure trove – particularly from the legal perspective – of intellectual richness and of fundamental values that remain relevant (also see, Aharon Barak, The Place of Jewish Law in the Law of the State, in Selected Essays, vol. 1, 98 (2000) (Hebrew) (hereinafter: The Place of Jewish Law in the Law of the State). Indeed, on its face, the old dispute between Justices Elon and Barak focused upon the character of the State of Israel, its identity and values, and now is not the time to elaborate, as “For everything there is a season, and a time for every matter under heaven” (Ecclesiastes 3:1). However, in my view, it would be appropriate to bridge the gap between the two views to a great extent, rather than say that there is an abyss between them. The Jewish Zionist basis of the rebirth of the nation in its land, and of human rights is shared by both views. President Barak, a Holocaust survivor, said on more than one occasion that for him there are two lessons: the need for a Jewish state so that Jews will have a home, and preserving human rights so that we not treat the other as in the Holocaust. Justice Elon was a liberal religious Zionist, whose devotion to human rights can be seen in his judgments and writings. To enrich the picture, I would note an additional opinion in regard to Jewish law, expressed by Justice Prof. Itzhak Englard (while still in academia, prior to his appointment to the Court), that the use of Jewish law presents the danger of its “secularization” (see, Y. Englard, The Incorporation of Jewish Law in the Israeli Legal System, Jewish Law and the State of Israel, 110 (Y. Bazak, ed., 5729) (Hebrew)). However, it would seem that during his tenure on this Court, Prof. Englard saw giving voice to Jewish law as something of a mission, as though “for such a purpose you were created” (Mishna Avot 2:8). Justice Turkel also addressed the subject (see, in this regard, Yuval Sinai, Jewish Law in the Decisions of the Israeli Courts in the Years 1994-2006, 7 Moznei Mishpat 374 (5770) (Hebrew) (hereinafter: Jewish Law in the Decisions of the Israeli Courts); and see Justice Turkel’s remarks at his retirement ceremony, as published in 23 Mehkarei Mishpat 5,8 (5764); and further see, CA 3616/92 Dekel Computer Engineering Services Ltd. v. Heshev Inter-Kibbutz Unit, Agricultural Co-Operative Society Ltd. [24], 353, where he quoted from Jewish law “in order to exalt the Torah”). Justice N. Hendel has also addressed this (see, e.g., HCJ 5185/13 Anonymous v. Great Rabbinical Court [25], paras. 4-7; LCA 296/11 Najar v. Aliyan [26], para. 9; and see, Jewish Law in the Decisions of the Israeli Courts, 401-402). In his article Jewish Law for Benefit  (pending publication) (Hebrew), my colleague Justice N. Sohlberg emphasized the operative aspect, i.e., how Jewish law can be used in concrete cases, and provided examples. It would not be superfluous to bring a different perspective expressed by Justice Haim Cohn (5792 Hamishpat 10):

The belief in the divine nature and eternity of the law prevented Jewish law from being accepted as the law of the State of Israel. There were those who were of the opinion that it would be unthinkable that we would live in accordance with anything but Jewish law in a Jewish state, and there were those who rightly argued that Jewish law is of sufficient flexibility and scope to be adapted to the needs of a modern democratic state. However, they were overcome by the objections of those who opposed any attempt at even the slightest change in the law of God and His commandments, even if only to adapt it to those needs. And since Jewish law, or any law, cannot be adopted in a democratic state without legislation, the legislature that would impart force to God’s law would also have the power to amend or repeal it – and such power would be nothing other than trespass upon the bounds of the Divine legislator. They even said that the secular legislature lacks authority to change the word of the Sages, sanctified since ancient time, and translate the ancient laws into modern legal language. Thus, Jewish law remains – with the exception of matters within the scope of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 – a broad, breathtaking field that is ploughed only by Torah scholars and legal historians.

            These words express the opinion of a scholar who was born and raised in religious society, and who later changed his view and approach, but who had a great love for Jewish law.

89.       I would like to briefly address the importance of appropriate recourse to Jewish law, and to employing it the interpretation of the law. Indeed, the State of Israel was founded upon “secular” law (with the exception of personal status law, which has, over the course of years, become restricted primarily to the laws of marriage and divorce that are under the jurisdiction of the various religious courts in accordance with their denomination, pursuant to Ottoman and Mandatory arrangements), and the courts do not decide the law on the basis of Jewish halakha, which particularly distressed Israel’s first Chief Rabbi, Rabbi Isaac Halevi Herzog, and see his book The Constitution for Israel according to the Torah (I. Wahrhaftig, ed., 1999) (Hebrew), and see Dr. Wahrhaftig’s comments at xxiiff; and see my article, The Birth of the State and Jewish Law in light of the approach of Rabbi Herzog, Massu’a L’yitzhak, vol. 2, 20 (Jerusalem, 5769) (Hebrew); and my book Judges of the Land, 75-76 (1980) (Hebrew). Rather than carry coal to Newcastle by extensive praise of the virtues of Jewish law, which it does not require from me and those like me, I will say a few words concerning it use, which I believe presents a possibility for synthesis.

90.       In my opinion, such a synthesis is certainly possible. It is primarily a conceptual message from a national, cultural perspective, whose use, of course, depends on the case. Jewish law should definitely not be conceived as “a matter for the religious”. The Jewish library, the Bible, the Mishna and the Talmuds, the Geonic literature, the Rishonim [Jewish legal decisors active before the publication of the publication of the Shulhan Arukh (1563 CE) – ed.] – among them Maimonides and the Shulhan Arukh [i.e., Rabbi Josef Karo, 1488-1575 – ed.] – and the Aharonim, particularly the responsa literature, and in our generation, the religious literature and research produced by persons – I will name primarily those who are no longer among us – like Justice Prof. Menachem. Elon, Prof. Asher Gulak, Justice Dr. Moshe Silberg, Dr. Avraham Haim (Alfred) Freimann, and Prof. Aaron Kirschenbaum, may their memories be for a blessing, as well Prof. Shalom Albeck and Prof. Nahum Rakover, and other important researchers in the field of Jewish law, and so as not to slight, I will not name them all, and I ask forgiveness of those I have not mentioned – all of these are a treasure trove of the law. We would do well to follow the path of Justice Sohlberg of Jewish law for benefit, and where possible “how good and how pleasant it is” [Psalms 133:1]. But elsewhere, recourse to its legal and moral insights in various is areas is proper as part of the general Jewish cultural fabric.

91.       My view in this regard, which is broadly more aligned with, although not identical to that of Justice Elon, argues for the middle road and for viewing Jewish law from two perspectives: the perspective of Jewish law as part of the national, cultural heritage upon which the State of Israel, as a Jewish and democratic state, may and should draw; and the perspective of its legal richness, overflowing with insights that, even if written long ago, often in archaic Hebrew, still remain vibrant. The Jewish character of the state should be expressed, inter alia, in the incorporation of Jewish law into our legal system (see: Malkhut Yisrael l’umat Dina D’malkhuta, 493). Indeed, from its very establishment, and even earlier, this spirit was expressed in declarations – sometimes only in declarations – by courts and scholars. Moreover, even prior to the establishment of the state, during the British Mandate, the Jewish law researcher, man of “the Hebrew Peace Court”,[4] and one of those who argued for Jewish law as early as the 1920s for nationalistic rather than specifically Orthodox religious reasons, was Israel Prize laureate Prof. Paltiel Daikan (Dickstein), who wrote:

There can be no Jewish state without Jewish law. It is not just the army and power that establish the validity and power of a state, but rather its organizational and legal structure are decisive in the question of its existence and fortitude. And just as it is unimaginable that we might build the state upon foreign cultures and languages, so a Jewish state is inconceivable without Jewish law. We will not forget the precious treasure of the millennia old Jewish legal tradition, nor will we ignore it (There cannot be a Jewish State without Jewish Law, 4 Hapraklit 329-330 (1947) (Hebrew)).

            Several years later, in the early days of the State, Justice S. Agranat explained:

I do this since the very moment that we admit – as we are obliged to admit – the continued existence of the Jews, in all generations and in all the lands of their dispersion, as a separate people, we must test the nature of Jewish law by the historic relationship of the Jewish people to this law. We shall then conclude – against our will – that the Jewish people really treated Jewish law, throughout their existence and their dispersion, as their special property, as part of the treasure of their culture. It follows that this law served in the past as the national law of the Jews, and even today possesses this national character in respect of Jews wherever they may be (CA 191/51 Skornik v. Skornik [27], 177).

            Not long ago, Justice Barak wrote:

The fundamental values of Jewish law shape our image as a nation and as a state …they are part of the fundamental values of our law … referring to the fundamental values of Jewish law is not referring to comparative law. It is a required reference. It is not a reference to all the values of Jewish law. It is to those values that constitute part of the law of the state (A. Barak, The Judge in a Democracy, 290 (2004) (Hebrew)).

The values of Jewish law are part of the values of Israeli law. The fundamental concepts of Jewish law – this cultural asset of the Jewish people – are the fundamental concepts of Israeli law. These values of Israeli law – among them the values of Jewish law – are part of the general purpose of every legislative act. This expresses the special status of Jewish law – our cultural asset whose values are our values (The Place of Jewish Law in the Law of the State, 102).

            Dr. S.A. Wozner ends his book The Legal Thinking in the Lithuanian Yeshivoth – The Heritage and Works of Rabbi Shimon Shkop (2014) (Hebrew) with an examination of the legal theory of Rabbi Shkop (Lithuania-Poland, 19^th-20^th cent.) and the question of the validity of norms that are not prima facie of Divine origin (like those of a modern state). His answer is that the obligation to obey God’s word derives from the law of human intelligence and the recognition of the autonomous understanding of the receiver (283). For me, this means that the roads of general law are also paved for the religious person, and this provides an entry to the present matter.

93.       It is sometimes argued that the use of Jewish law sources is incompatible with democracy. I believe that such arguments are fundamentally mistaken. As for the interaction between Jewish law and the democratic values of the state, I believe that “we should aspire to harmony, synthesis, and to mutual reconciliation between the Jewish and democratic elements” (Malkhut Yisrael l’umat Dina D’malkhuta, 490). There may, indeed, be different views as to the appropriate balance. However, the effort should focus upon developing law that creates harmony between the elements, that prioritizes the similar and rejects the different. This is what Justice Barak said in his eulogy for Justice Elon: “The relationship between the values of Israel as a Jewish state and its democratic values require, in his view (Justice Elon – E.R.), synthesis and harmony. We agreed on that, and we walked hand in hand” (quoted in 26 The Justice Shmuel Baruch Judges’ Bulletin (Feb. 2013) (Hebrew)). Harmony and synthesis must pave the way.

94.       It would, therefore, appear to me that recourse to the system of Jewish law – whether to ground arguments and judgment, as a source of comparative law, or as a source of inspiration and to broaden the theoretical legal groundwork (and compare: N. Rakover, Jewish Law in the Decisions of the Israeli Courts, 7 (Sifriyat Hamishpat Ha’ivri, vols. 1-2 (1989)), with due attention to the subject, the necessary meticulous examination, and the necessary care – plays a central role in creating the required synthesis between Jewish law and our legal system, which is based upon the laws of the Knesset (compare: the Hendels case [23], 795).

95.       Jewish law thus has national and cultural significance as the societal and moral heritage of the Jewish people from time immemorial. Indeed, it is grounded in the Jewish religion, but recourse to it does not, itself, express a religious or theological stance, and it should not be perceived as such, but rather through a national, legal lens. Jewish law is certainly not the exclusive legacy of religious Jewry, even if it is but natural, and somewhat sad, that most, although not all of those engaged in its study are observant Jews, which impresses it with a “religious stamp”. It would be good and proper if those who are not religiously observant would join their ranks (and see: A. Hacohen, Unjust Enrichment in Jewish Law, 10 Mishpat v’Asakim 183, 185 (5769) (Hebrew) (hereinafter: Unjust Enrichment in Jewish Law)). As I wrote in the past:

What is referred to as “the Jewish bookshelf” is an incomparable treasure of many cultural areas, but perhaps first and foremost of law. In my opinion, one need not identify with a particular conceptual approach in order to be curious about it, learn from it, utilize it, take pride in it, and put it to moral use, each according to his own definition of the moral foundation (Malkhut Yisrael l’umat Dina D’malkhuta, 502).

            At judges’ conferences in Jewish law, I was overjoyed at the participation of judges who were not members of the religious community, and even more so when judges who are not of the religious community made recourse Jewish law in their judgments.

96.       I therefore support the development of a national-cultural approach to Jewish law, its institutions and sources. “We must not close our minds to general cultural and legal legacies, and all the more so in regard to our own cultural legacy (the Hendels case [23], 798, per Elon, J.). Nevertheless, there is no denying that the rebirth of Jewish law, as expressed in our general legal system, remains meager. Recourse to the principles of Jewish law by the courts is not widespread, and their use – as a source of inspiration or as an interpretive tool – is not sufficiently common. Rhetoric that extols the virtues of Jewish law does not reflect reality (see: Unjust Enrichment in Jewish Law, 231). To date, the Foundations of Law did not meet with the success that its legislators had hoped.

97.       Years ago, in my brief article Jewish Law – A Law that calls out to Us (published in the anthology On the Incorporation of Jewish Law (N. Rakover, ed., 1998) (Hebrew), and in my book Paths of Government and Law, 168 (2003) (Hebrew)), I described three hurdles that an Israeli jurist, judge or lawyer must overcome in order to make proper, respectful use of Jewish law sources:

The first is will. This entails a certain ideational approach. The polarization that divides Israeli society in the area of religion and state, like no small number of other issues, can – wrongly, in my opinion – swallow up this subject. That is to say that a jurist who decides in favor of using Jewish law may, at times, see himself as “taking a side” in an internal debate. This approach is – in my opinion – mistaken, as an incomparably rich cultural heritage is not, and should not be the property of any one person, but rather should be the property of the general public, without regard for public controversies. While the source of Jewish law is religious, its message is not necessarily so, and it need not be the legacy of the religiously observant alone. Perhaps the current trend of seeking the treasures of “the Jewish bookshelf” will help ameliorate this problem.

The second hurdle is the need for a certain degree of knowledge in order to make proper, even if modest, use of the sources of Jewish law. The great, welcome contribution of contemporary jurists – among them the Jewish Law Department of the Ministry of Justice, headed by Prof. Nahum Rakover – helps to address this need. Today, the bookshelf of comprehensive research in various fields of Jewish law grows daily. The books are written in modern language, and thoroughly interrelate with the general Israeli law, which allows judges and lawyers who are ready to invest the necessary time, to make respectful, effective and convenient use of Jewish law as a source of inspiration, interpretation, and support for their work and the deepening of their understanding.

And here arises the third hurdle – time – the most precious resource of all. Israeli judges and lawyers are overburdened to the point of collapse. Judges are faced with a heavy docket that must be completed in a timely way. That requires great effort. The same is true for lawyers. Jewish law is like a neshama yeteira – an added dimension of spirituality – whose attainment usually requires an investment of time that is not readily available. However, since the incorporation of Jewish law into legal and judicial work is a rewarding cultural and professional experience, and a challenge that involves reconnecting with thousands of years of Jewish creativity, if one is ready and willing, time will be found (emphasis added – E.R.).

            As can readily be seen, I do not wish to divide the approach to these hurdles in a binary division between religious and non-religious, even if that may seem persuasive to some. On the contrary, if we approach the subject from the perspective of national culture, it need not be affected by the Israeli religious-secular tension, but resides entirely in the “harmony wing”.

98.       I have also had occasion to note:

The Israeli legal system takes a dichotomous approach to Jewish law. On the one hand, all agree, in theory, that Jewish law forms part of our legal heritage, and that it should have a place in Israeli law, even if there is dispute in regard to the scope of the obligation to refer to it … while on the other hand, putting that theoretical statement about the place of Jewish law into practice encountered obstacles in the Israeli legal community, some of ideational and most of a practical nature (Paths of Government and Law, 168; on the various approaches to Jewish law, see: Unjust Enrichment in Jewish Law, 187-195).

            Of late, there have been initiatives to increase support in this area by amending the Foundations of Law, a move that has led to some controversy (see the Israel Democracy Institute paper: Benjamin Porat, A Proposal to Amend the Foundations of Law Act, with an Analysis and Critique, and the accompanying response by M. Kremnitzer (2016) (Hebrew)). This is not the place for discussing that, but in my opinion, even the possibilities afforded by the current version of that law have not been fully exploited,[5] and see in this regard the instructive words of my colleague Justice Melcer (dissenting in LFA 7141/15 A. v. B. [28], para. 18), in support of interpreting sec. 1 of Foundations of Law “as pointing to the basic principles of Jewish heritage as defined by Prof. Elon, but not necessarily to the particular legal arrangements established by halakha”.

99.       Ultimately, in my opinion, the effort to give expression to the intellectual richness and the values of Jewish law in our legal system is worthwhile and even necessary, subject, of course, to the circumstances of each case. “A proper Israeli legal policy is one that lends an ear and listens to the sentiment of Jewish law” (CA 8954/11 Doe v. Doe [29], para. 135, per Sohlberg, J.); and see: A. Maoz, The Place of Jewish Law in the State of Israel, 40 Hapraklit 53, 66 (1991) (Hebrew)). For my part, I can say that from the day I began serving as a judge, I have tried to the best of my modest ability to give voice to the place of Jewish law, although I regret that I did not make greater use of Foundations of Law. I have often maintained an awareness of the intellectual treasures of Jewish law and the rich legal tradition that characterizes it, as well as the great value of its incorporation for Israeli law, without, of course, in any way compromising the autonomy of the courts under the state’s law. In this sense, in opening its gates before it, the general law showed respect for Jewish law no less than Jewish law showed respect for the state’s law by entering those gates.

100.     Outlining the aurea mediocritas in all that relates to the extent and scope of recourse to Jewish law, its status and its normative force is a complex task. It requires “patience and tolerance, moderation, equanimity, good will and common sense” (E. Rubinstein & N. Sohlberg, Religion and State in Israel in the Jubilee Year, Minha LeYitzhak 339 (5759) (Hebrew), also published in Paths of Government and Law, 196 (Hebrew)). However, if we are willing to confidently address the national, cultural and moral significance of Jewish law, we will be rewarded by the development of the general law, and we will afford our ancient tradition the respect it deserves, or to paraphrase Rabbi Abraham Isaac Hacohen Kook, we will renew the old, and sanctify – in the national sense – the new. I would add that I do not see this as being in conflict with the equality of Israel’s minorities, but this is not the place to elaborate.

101.     We shall now return to the merits of the matter before us.

The statutory provisions

102.     I would first note that this judgment focuses upon the subject of living space, unrelated – except as anchored in law – to the severity of the offenses,  which may be severe and horrifying, for which the prisoners are serving their sentence. Similarly, we are not addressing the distinction between inmates imprisoned for criminal offenses and those imprisoned for criminal security offenses (with all the complexity regarding the latter), between which the Basic Law makes no distinction. The same holds for the distinction between criminal detainees and administrative detainees, which is not the concern of this case.

103.     The primary legal provisions with which we are concerned are sec. 11B(b) of the Prisons Ordinance, which was added by Amendment 42, and sec. 9(a) of the Arrests Law. Section 11B of the Ordinance states:

A prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity.

            Section 9(a) establishes an identical provision in regard to detainees.

104.     The Petitioners argue that placing a person behind bars without granting him a minimal living space of 4 square meters (that is, 4 square meters exclusive of the lavatory and shower areas) – in accordance with the various standards established under international law – does not meet the standard of appropriate conditions and violates his dignity in a manner repugnant to the said statutory provisions and Basic Law: Human Dignity and Liberty.

105.     As earlier noted, the subsidiary legislator addressed this matter of appropriate living space. Regulation 2(h) of the Prisons Regulations – like reg. 3(e)3 of the Arrest Regulations), which concerns the living space of detainees – states:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell (emphasis added – E.R.).

106.     But the difference between the standard established by the State itself and the actual situation is absolutely clear. According to the current data of the Prisons Service, presented in the updated notice submitted by the State on April 3, 2017, only 21%(!) of prisoners in the State of Israel are being held in prison cells that meet the standard of 4.5 square meters. In other words, despite the State’s efforts that were described at length in its responses, the absolute majority of prisoners and detainees in the State of Israel do not enjoy the minimum standard established by the subsidiary legislator itself for a prison or detention cell in Israel. From a legal standpoint, the State relies upon reg. 8 of the Prisons Regulations, which states:

Sub-regulations (d), (f) through (h) will apply to places of imprisonment whose construction planning began after the initial day [June 2010 – E.R.], and to the extent possible, even to planning and renovation of existing places of imprisonment (emphasis added – E.R.).

            From the phrase “to the extent possible”, the Respondents learn that the State has absolute discretion in deciding the living conditions of prisoners in the existing prison facilities, in accordance with budgetary considerations and priorities that it establishes.

107.     The focus of our discussion is sec. 11B of the Ordinance. The question is whether the expression “appropriate conditions” should also be taken to comprise the minimum living space to which a prisoner – and similarly, a detainee – is entitled in the State of Israel. We are, therefore, concerned with an issue of interpretation.

108.     As Prof. Barak wrote:

A statute must be interpreted according to its purpose (subjective and objective). The purpose of a statute is the interests, goals, values, aims, policies, and the function that the statute is designed to accomplish. It is the ratio legis (Barak, Purposive Interpretation in Law, p. 398 [English edition (Princeton, 2005), p. 340].

            To this I added in one case:

Purposive interpretation also derives from common sense and life experience. The legislature, or the drafter of a text in general, cannot foresee every possibility, and reality invites a variety of occasions that “your fathers did not know” (Deut. 32:17), and therefore, interpretative tools make it possible to seek the purpose of the text. This is also true in Jewish law, for example, by means of the thirteen hermeneutical rules by which the Torah is expounded (Midrash Sifra, Parashat Vayikra, 13 Principles, chap. 1), or similar systems of interpretation (the Zalum case [6], para. 32).

109.     The subjective purpose of the law is learned from its language and from the legislative intent. As for the language, the legislature established that “a prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity”. The legislative intent is learned from the Explanatory Notes to the Prisons Ordinance (Amendment no. 42) (Conditions of Imprisonment) Bill, 5772-2012 (650 Government Bills 298 (6 Shevat 5772, January 30, 2012)). These begin with the statement that “the purpose of the proposed law is to establish in the Prisons Ordinance [New Version], 5732-1971, obligatory provisions in regard to appropriate conditions of imprisonment for prisoners, and define their basic rights…” (emphasis added – E.R.). To my mind, common sense says that it is doubtful that “basic conditions” [sic] for a prisoner can be interpreted so as not to include minimal living space. By way of illustration, consider an extreme situation in which a prisoner resides in 2.5 square meters of living space, including his bed (a situation which, sadly, is not very far from the description of some Israeli prison facilities). Is it even conceivable that such a prisoner enjoys “appropriate conditions” for living? Thus, even if the food he is served meets the required standard, even if there are good educational services, even if visiting hours are reasonable – it would remain doubtful that without minimal living space, that prisoner could be deemed to have appropriate living conditions. On its face, it would appear that both the language of the law and the legislative intent show that the legislature sought to establish a minimum standard for a prisoner’s living space, while leaving the precise standard to the subsidiary legislator, as we shall address below.

110.     As opposed to this, there is some justice to the argument that when the legislature sought to establish concrete appropriate standards, it did so expressly. Thus, for example, sec. 11B(3) of the Ordinance refers to basic living conditions to which a prisoner is entitled: a bed and mattress (sec. 11B(3)(2), water and suitable food (sec. 11B(3))3)), clothing and products for maintaining personal hygiene (sec. 11B(3)(4), etc. Additionally, the deliberations of the Knesset Internal Affairs and Environment Committee show that when Petitioner 1 raised a request to establish an express, statutory minimum for prisoner living space, the Legal Advisor of the Ministry of Public Security replied: “That is part of appropriate conditions” (p. 28 of the Committee protocol of Feb. 21, 2012).  That and nothing more. Indeed, that can be understood to mean – as the Petitioners argue – that the Legal Advisor’s response implies that the expression “appropriate conditions” includes minimal living space. However, it can also be interpreted to mean – albeit with some difficulty, and see the matter of common sense that we noted above – that minimal living space is one of many parameters for a prisoner’s living conditions, such that – for the purpose of illustration – if in making the calculation, the prisoner is afforded fine food or an enhanced educational framework, it is possible to “compromise” on living space in the framework of ensuring “appropriate conditions”. We should again note that we are not concerned here with interpreting the law in accordance with the fundamental principles of the legal system and the Basic Laws, which we will address below, but rather with an attempt to understand the original legislative intent.

111.     To summarize thus far, I am of the opinion that the subjective purpose tends to the interpretation advanced by the Plaintiffs, i.e., that the State is required to provide a prisoner – and as noted, this equally applies to a detainee – “appropriate conditions”, which includes an obligation to provide minimum living space. However, determining the legislative intent in this matter is not entirely doubt free, and it cannot be denied that, on the face of it, there is some logic to the contrary argument – not on the substantive-value level, but rather in terms of the “historical development”. We will now proceed to examine the objective purpose of the law.

112.     As for the objective purpose, it would appear that here – even more persuasively – statutory interpretation leads to the conclusion that sec. 11B of the Ordinance seeks to establish at least a minimal standard for a prisoner’s living conditions, among them his living space in his cell. As opposed to its subjective purpose, the objective purpose of a legislative enactment tries to seek the intent of that reasonable legislator who is guided by the fundamental principles of the system, morality, fairness and justice. The words of Justice M. Cheshin are apt in this regard:

In approaching a law of the Knesset, we do not come empty handed. We come with bag filled with language and terminology, interpretations and meanings, social customs and mores, conventions and axioms, justice and integrity, principles and tenets … all these tenets, values, and principles appear to be extra-legal, but they are the foundation of the statute – of every statute – and no statute can be conceived without them. A statute without that platform is like a house without foundations, and just as the latter will not endure, so a law that has nothing but itself is like a house hanging in midair … As we read a statute, our robes upon us, we carry on our backs “an interpretive quiver”. Some will say an “interpretive kit”. Inside this quiver are the values, principles, and doctrines without which we would not be who we are: fundamental values of the system, morality, fairness, justice. These – and others like them – are fundamental values, and from them subsidiary values are derived (CFH 7325/95 Yediot Aharonot Ltd. v. Kraus [30], 72-74).

            It is additionally clear that the objective interpretation of a law must also be derived from the Basic Laws, and in the present case, Basic Law: Human Dignity and Liberty. Justice Barak addressed this in one case as follows:

The centrality of the value of human liberty is not expressed merely in rhetoric about its importance. It translates into legal language in the positivist conception that human dignity gives rise to rights and obligations, determines authority and powers, and affects the interpretation of every legislative act. In Israel, human dignity is not a metaphor. It is a normative reality that requires operative conclusions (CA 294/91 Hevra Kadisha Kehillat Yerushalayim v. Kestenbaum [31], 526).

113.     The “principle of constitutionality”, as President Barak referred to it on the basis of its use in comparative law (and see: CrimApp 537/95 Ganimat v. State of Israel [32], 412), is a basic principle of our legal system, from which we learn that a statute should be interpreted, as far as possible, in a manner that is consistent with the provisions of the Basic Law. The normative hierarchy is clear and well-known, and the basic interpretive presumptions derive from it: it is presumed that subsidiary legislation does not contradict a law, and that a law does not contradict constitutional provisions (Barak, Purposive Interpretation, 422).

114.     In addition to the fundamental principles of the system and the Basic Laws that express them, we saw fit to turn to Jewish law and comparative law, which we discussed above.  Jewish law teaches us “the principles and fundamental values grounding our culture and law” (Barak, Purposive Interpretation, 220). Comparative law teaches us about what has been done in similar situations abroad, in countries we would like to resemble (as opposed to those countries from which we seek to be distinguished). We should further bear in mind that in accordance with the presumption of constitutionality, we must also interpret Israeli law as compatible with the provisions of international law that Israel has adopted, to the extent possible (CA 522/70 Alkutub v. Shahin [33], 80; HCJ 2599/00 Yated – Non-Profit Organization for Parents of Children with Down Syndrome v. Ministry of Education [34], 846; T. Hostovsky Brandes, Human Rights Law in Israel, Mehkarei Mishpat 2017(Hebrew)).

115.     In the present matter, I am of the opinion that all of the sources point to the fact that the objective purpose – and as noted, the subjective as well – of sec. 11B is to establish appropriate, minimal standards applicable to every inmate, as such, and that the area of his cell is among them. As we have shown, minimal living space is a necessary condition for preserving a person’s dignity and his right to a minimally dignified existence. As stated, there is no dispute that the absolute majority of Israel’s inmates live under conditions that by the standards established by the State itself – and as noted, this is also supported by international law and comparative law – are not consistent with minimal living conditions for an inmate’s dignified existence. This is repugnant to the fundamental principles of our law, the constitutional right to dignity enshrined in Basic Law: Human Dignity and Liberty, Jewish heritage, the position of international law, and to what is acceptable according to comparative law, as we showed in detail above. Moreover, having found that the subjective purpose of the law is not unambiguous, but the objective purpose of the law clearly favors the position of the Petitioners, and since in interpreting a law concerning human rights, as in the present case, significant weight should be given, a priori, to the objective purpose (Barak, Purposive Interpretation, 255), we can only conclude that sec. 11B should be interpreted as establishing a principle of minimal living space that must be applied to every prisoner – and correspondingly, to every detainee – in Israel. I would add the following two points: First, we must examine the subject of a prisoner’s living space through the lens of basic human rights, and ask ourselves how we would feel living in a 3 square meter space over the course of years. Second, even were we to assume that the matter is open to different interpretations, when we are concerned with basic human rights, we must choose the one that realizes broader rights, rather than the opposite.

116.     We would further add that the concrete criteria for the execution of sec. 11B were established in the Prisons Regulations. In the present matter, two primary regulations are relevant, and in view of their importance, I will repeat them. Regulation 2(h) of the Prisons Regulations – which establishes an arrangement similar to that in reg. 3(e) of the Arrests Regulations – states:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell (emphasis added – E.R.).

117.     Regulation 8 of the Prisons Regulations, which establishes the application provision (similar to the parallel, final part of reg. 3(e)), instructs:

1. These regulations will apply to permanent construction. In this regulation, “permanent construction” – a structure that cannot be transported from place to place.
2. Sub-regulations (d), (f) through (h) will apply to places of imprisonment whose construction planning began after the initial day [June 2010 – E.R.], and to the extent possible, even to planning and renovation of existing places of imprisonment (emphasis added – E.R.).

118.     One might raise the question – as the State holds – that the above is stated looking to the future “to the extent possible”, so why should we not accept the view that what is possible comes in stages, and in the meantime has not been completely met? Before answering this, we would again note two basic principles of our jurisprudence in regard to the effect of these regulations upon the present matter: First, legislation should be interpreted in a compatible manner, and it is therefore presumed that subsidiary legislation is intended to realize the primary legislation, rather than conflict with it (Barak, Purposive Interpretation, p. 422). This is particularly so when all of the purposes of the present provisions are meant to give sec. 11B concrete meaning, by virtue of sec. 11B(f), which states that “the Minister may establish regulations for the execution of this section”. Second, from the other perspective (Barak, Interpretation in Law: Statutory Interpretation, vol. II, 802-803). Therefore, I am of the opinion that we should grant importance to the standard that the subsidiary legislator saw fit to establish as the minimum standard for a prison or detention cell – 4.5 square meters, including the lavatory and shower area – which, in practical terms would appear to be similar to 4 square meters exclusive of the lavatory and shower area. Inasmuch as this criterion is similar to the minimum that the Petitioners seek to establish on the basis of information from comparative law, as noted – albeit less than the appropriate criterion according to the Prisons Service as presented in an internal presentation of the Strategic Planning Branch of the Prisons Service in 2010, which stands at 6.5 square meters (Appendix P/1 of the Petition) – I believe this to be the relevant criterion to which we should aspire as the minimal criterion in the present matter. We would note that many years have passed since the Regulations were enacted, which should also be accorded weight.

119.     Indeed, inasmuch as the subsidiary legislator is presumed not to have intended to contradict the intent of the primary legislator, I am of the opinion that in employing the expression “to the extent possible” in reg. 8, the subsidiary legislator intended to say that the minimum standard would gradually be put into effect for all prisoners in all prisons within a reasonable period of time, as is customary when we are concerned with an administrative agency, and in accordance with the rule established under sec. 11 of the Interpretation Law, 5741-1981, that “any empowerment, and the imposition of any duty, to do something shall, where no time for doing is prescribed, mean that it shall or may be done with due dispatch …” (emphasis added – E.R.), and see in this regard, D. Barak-Erez, Administrative Law, vo. I, 407 (2020) (hereinafter: Barak-Erez) (Hebrew). In the present matter, some two decades have elapsed since the relevant regulation was established in the Arrest Regulations, and many years have also passed since the parallel regulation was enacted in the Prisons Regulations. That cannot be accepted as a reasonable time when we are concerned with a fundamental right of the first order, and where the infringement is severe and disproportionate, and surely when the State’s response reveals that the matter is not expected to change substantially in the near future. As Justice Levy once noted: “The obligation to act reasonably – which applies to all the acts of the Respondent – is a primary obligation. Reasonableness – we would again recall – means meeting a reasonable timetable” (HCJ 2065/05 Maher v. Minister of Interior [35]; and also see HCJ 6300/93 Center for Training of Rabbinical Court Pleaders v. Minister of Religious Affairs [36], 451). Moreover, we cannot accept an interpretation by which the subsidiary legislator intended to establish an arbitrary rule that would discriminate among prisoners in manner that would infringe their basic rights simply due to budgetary considerations, and under which there would be no minimum standard that would apply to every inmate as such, but rather would be subject to the (actually, absolute) discretion of the executive (in this regard, see: HCJ 6321/14 “Ken Lazaken” – For the Advancement of the Rights of the Elderly v. Minister of Finance [37], para. 38). In any case, the interpretation given by the subsidiary legislator is but one of the elements that the Court must consider in interpreting a statute, and as noted, an interpretation by which no minimum standard applicable to every inmate would be set would be incompatible with other sources by which the purpose is determined – fundamental principles of the system, our constitution as expressed in the Basic Laws, human dignity in Jewish law, and the comparative and international law cases cited. Having concluded that the purpose of the law leads to a clear conclusion in regard to the need for a minimal standard for the living space of the incarcerated prisoner, what is stated in subsidiary legislation cannot change that conclusion. A prisoner is a person, regardless of in what prison he is imprisoned, and the minimal standard must be universal.

120.     We would note that the State wishes to shine the spotlight on sec. 3 of Amendment 42 to the Ordinance – a section that was not included in the original bill – which establishes: “The Prisons (Imprisonment Conditions) Regulations, 5770-2010, as they were prior to the entry into force of this law, shall be deemed as if they were enacted in accordance with sec. 11B of the Ordinance … and nothing in regulations enacted under the said section shall detract from their validity”. The State therefore argues that this practice “essentially imported the Prisons (Imprisonment Conditions) Regulations, 5770-2010, into Amendment 42, and in so doing, the Knesset forged what is stated in the regulations in the furnace of legislation”. This is nicely worded by the State Attorney’s Office, and the State wishes to learn from this that the Prisons Regulations should be accorded added importance, essentially that of a statute, for the purpose of interpreting sec. 11B, inasmuch as “the Israeli Knesset set its sights on the arrangements detailed in the regulations, and established that those arrangements are appropriate for the implementation and execution of sec. 11B”. I cannot accept that charming argument. Indeed, Amendment 42 did not intend the entire repeal of the existing regulations, but that is not to say that those regulations enjoy a different normative status than other subsidiary legislation. Naturally, the legislature sought to create legislative continuity and not immediately repeal the prior arrangements under the regulations. I do not believe that we can understand that to represent the legislature’s specific adoption of each of the arrangements in the regulations as they were prior to the amendment. The status of the regulations as being subject to judicial review that is not necessarily constitutional review remains, and all the more so when we are concerned with a basic human-rights issue. Moreover, an examination of the meetings of the Knesset Internal Affairs and Environment Committee, which deliberated the bill, shows that the proposal to incorporate what is established under the regulations under discussion, including the prisoner’s living space, into the amended law was raised and rejected. Thus, as we noted above, when, in the course of the deliberations, the representative of Petitioner 1 requested that the living standard established in the regulations be established in primary legislation, the Legal Advisor of the Ministry of Public Security replied: “That is part of appropriate conditions [the wording of sec. 11B of the Ordinance – E.R.]. If you think that the law cannot be passed in this way, then we won’t pass it. We simply won’t pass it”. Thus, inasmuch as it was the State itself that insisted that the amendment not establish the regulations by statute, I have some doubts as to whether it can have it both ways, and now argue that the regulations have the status of a statute (see Protocol 510 of the meeting of the Internal Affairs and Environment Committee, p. 28 (Feb. 21, 2012)). With all due respect, it would therefore appear that nothing in the routine wording of sec. 3 of the amendment can be seen to show that it grants statutory status to the regulations. Had the legislature wished to do so, it is presumed that it would have expressly done so by statute. In the present matter, it is clear that this was not the legislative intent, and all that the legislature sought to do was to avoid creating the normative confusion that may have resulted had the regulations been immediately repealed by the amendment to the law, prior to the adoption of new regulations. The regulations that are the subject of this matter should, therefore, be treated as regulations for all intents and purposes, as they were created and as promulgated, and viewed as but one element in the interpretation of the legislation. Having found that an examination of all the relevant sources indicates the need to establish a minimal standard for the living conditions of every prisoner and detainee, what is stated in the regulations in this regard cannot serve to alter that conclusion.

121.     To summarize this section, we will simply say – is it conceivable that a prisoner or detainee who lies down to sleep and awakes morning after morning, week after week, month after month and year after year in a cell whose size is 2.2 square meters (Ofer Camp), 2.3 square meters (Megiddo Prison), 2.4 square meters (Nitzan, Ramon and Ketziot facilties), etc., lives “in dignity and health” as required by the law? Can we, Israel’s judges, ignore reality and continue to subject those convicted of criminal offenses – a fortiori suspects or criminal defendants – as serious as their crimes may be – and I repeat, many are criminal and security offenses that arouse untold revulsion and disgust – to prison conditions that are unfit for human habitation, and as my colleague Justice (emeritus) Zylbertal stated in one of the hearings in this case – “to a place that no one among us could endure for two days” (court transcript of July 13, 2015, p. 5)? And I would note here that according to the data of the Prisons Service, Israel stands well under the average European threshold for floor space allotted to a prisoner (which is 8.8 square meters), and according to the Red Cross, even less that what is found in Mauritius (4.08 square meters), Kenya (3.7 square meters), and Senegal (3.55 square meters) (International Committee of the Red Cross, Water, Sanitation, Hygiene and Habitat in Prisons, p. 31 (April, 2012)). I believe that there can be only one answer to these questions, and it is no.

122.     We held several hearings in the present case, and despite our pleas and the long time that has elapsed since the relevant statutory provisions and regulations were enacted, the overcrowding in prison and detentions cells sadly remains almost as it was prior to the enactment of the regulations, i.e., some 40% of all prisoners are held in cells that are less than 3 square meters on average. As the learned D. Barak-Erez observed, “there are limits to judicial flexibility that find expression when ongoing foot-dragging amounts to an evasion of the obligation to act in accordance with the requirements of law” (Barak-Erez, 409). We will say again that we do not, Heaven forbid, attribute ill-will or malice to those involved, but the priorities they have established require “reorienting”. Under the circumstances, it is hard to assume, as the State asks, that improvement of the situation is at hand, and in any case, it is hard to imagine that the steps that were described – some theoretical – will soon bear fruit, and that a concrete solution will be found. Given the undeniably severe situation, judicial intervention is required.

123.     I would therefore recommend that we grant the petition and make the order nisi absolute in the following manner:

A.        The minimum living space for every prisoner and detainee shall be set at 4 square meters exclusive of the lavatory and shower area, as requested in the petition (or 4.5 square meters inclusive of the lavatory and shower area).

B.        To that end, the State will do what is necessary so that, within 9 months of the issuing of this judgment, the living area of every prisoner and detainee will be at least 3 square meters, exclusive of the lavatory and shower area; within 18 months of the issuing of this judgment, the living area of every prisoner and detainee will be at least 4.5 square meters, including the lavatory and shower area, or 4 square meters without them.

124.     Before concluding I would note that the ramifications of our decision are clear. As the State pointed out, immediately increasing the living space would impose a significant burden upon the state treasury. Indeed, one possibility – the “royal road” – is that the State will act to renovate and expand the prison and detention facilities in accordance with the above timetable. However, that is not the only option available to the executive and legislative branches for resolving part of the problem

125.     As we know, the Arrest Law, enacted under the influence of Basic Law: Human Dignity and Liberty, sought to change the conception that had prevailed prior to its enactment, and “delineate rules for enforcing the law while protecting human rights”, as well as to actually lessen the scope of arrests (see: Rinat Kitai-Sangero, Pre-Trial Detention of Liberty before Conviction 19-24 (2011) (Hebrew)). But intentions are one thing and reality another. Not only has the number of arrests not lessened, but has significantly increased (ibid., 28-29); Chaya Zandberg, Commentary on the Arrest Law 19-24 (2001) (Hebrew)), together with a rise in the number of remand prisoners, as part of the police department’s “turning-point plan” – so we were told – as a police objective (The Public Defender’s Report for the Year 2015, pp. 35-36 (August 2016) (Hebrew)). Without addressing police plans with which I am unfamiliar, I would note that the Arrest Law provides – e.g., in sec. 21(b)(1) – that an order for pre-trial remand will not be issued, inter alia, unless “the objective of the arrest cannot be attained by release on bail and by release conditions of lesser impact on the defendant's freedom”. It would seem that assimilating the legislature’s message that arrest is the last resort in the list of possibilities available to the enforcement authorities could aid in reducing the number of arrestees and increasing the living space remaining for those whose arrest is unavoidable.

126.     Clearly, the matter is more complicated in regard to imprisonment, as once a person is convicted of a crime, he no longer enjoys a presumption of innocence, and in many cases, there is no alternative to imprisonment, which may be long and even life imprisonment. But here, too, we must bear in mind that imprisonment is a means and not an end – it is a means for retribution, deterrence and for the rehabilitation of the offender. Thus, for example, according to the proposals of The Public Commission for examining the Policy for Punishment and Treatment of Offenders (hereinafter: The Dorner Commission) and the Government resolution to adopt its main points (Resolution 1840 of Aug. 11, 2016), the Parole Board can be authorized to transfer certain prisoners to halfway houses rather than keep them in prison; it can be decided that community service be extended so that it can be imposed as an alternative to 9 months imprisonment rather than 6, as it is at present, and thereby to reduce the number of prisoners (The Report of the Public Commission for examining the Policy for Punishment and Treatment of Offenders, 52-55 and 65-66 (Aug. 2015) (hereinafter: The Dorner Commission Report). As I recall, I raised this last proposal when I was serving as Attorney General, but various elements opposed it. Probation periods can also be extended in regard to certain offenses, fines for financial crimes can increased, and in appropriate cases, increased use of early release can be considered, together with the creation of appropriate supervision systems outside the prison walls. In this regard we would note that various studies in the United States – the holder of the “world record for imprisonment”, which holds 25% of the world’s prisoners, even though its general population is only 5% of the world population, which is seven times the prevailing rate in Western Europe – show that longer imprisonment does not necessarily lead to lower crime rates, and that the rate of imprisonment can be reduced together with reducing the crime rate, inter alia, because reducing the imprisonment rate reduces the rate of recidivism. Thus, for example, between 2011 and 2014, the number of prisoners in California went down 9%, pursuant to the judgment referred to above, which required that California release prisoners in order to provide every prisoner with appropriate living space, and which accordingly led to a change of the law and a change in the arrangements for probation and early release in the state. Concurrently, there was a 7% reduction in the crime rate. Similar trends were found in Mississippi, New Jersey, New York, South Carolina, and Texas (Iniami Chettiar & Laura-Brooke Eisen, The Reverse Mass Incarceration Act, p. 10 (Brennan Center for Justice, New York University, 2015)). Also see the comprehensive research by the National Academy of Sciences in the United States in regard to the increase in the rate of incarceration in the United States, which found, inter alia:

The incremental deterrent effect of increases in lengthy prison sentences is modest at best. Because recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation (Jeremy Travis, Bruce Western & Steve Redburn, The Growth of Incarceration in the United States: Exploring Causes and Consequences, at pp. 334-337 (National Research Council of the National Academies, July 2014)).

            Of course, the above should not be taken as a comprehensive discussion of the effect of incarceration upon crime rates. Rather, the purpose is to draw attention to additional ways of thinking about the issue other than building more prisons and detention centers, and as noted, the government has already chosen to take that course by adopting the Dorner Commission Report.  The main conclusion of the Commission was that “we should act to reduce the use of incarceration in cases in which incarceration is not necessary to restrict offenders who present a high degree of danger to society, and the expansion of the use of cheaper, more efficient punishments that meet the principle of suitability, and thus to bring about efficient and more appropriate use of the resources earmarked for the subject” (ibid., p. iv). I can only agree with that as also reflecting the dictate of common sense.

127.     Of course, in accordance with their discretion, the legislature and the government will decide how to give effect to what is stated in this judgment in terms of both substance and timetable, and in keeping with the order absolute. As noted, they have various possibilities, and they must act in accordance with their discretion and in a manner compatible with the law, case law, and the basic right of every person to dignity.

128.     The proposed result is as stated in para. 120, above, in all its parts. In other words, the minimal living space of each prisoner and detainee shall be 4 square meters, exclusive of lavatory and shower, as requested in the petition (or 4.5 square meter including the lavatory and shower). In carrying that out, the State will do what is required so that within 9 months of this judgment, the living space of every prisoner and detainee will be at least 3 square meters, exclusive of the lavatory and shower. Within 18 months of this judgment, the living space of every prisoner and detainee will be 4.5 square meters, including the lavatory and shower, or 4 square meters without them, at the very least.

129.     Under the circumstances, we have decided not to issue an order for costs.

 

Justice U. Shoham:

1.         It is my privilege to be a partner to the judgment of my colleague Deputy President E. Rubinstein on the day of his retirement. I will immediately state that I concur with my colleague’s thorough, comprehensive opinion. This opinion reflects my colleague’s social and human sensitivity, and well expresses the worldview that has always characterized him. Having known him over the course of many years, as Attorney General and later as Justice Rubinstein, I have great respect for his empathy for the weaker elements of society, who often cannot or do not know how to stand up for their rights, and in those cases that have come before my colleague, a true, honest effort was made to remedy their problems. Together with a sensitive, social worldview in regard to the sufferings of others, whether a citizen, a resident or an alien, we should also recall the instructive material interwoven into my colleague’s opinion out of a love for Jewish law. Thus, in this important decision, as well, Justice Rubinstein dedicated a lengthy section (paras. 69-86) to the subject of “The treatment of prisoners in the Jewish heritage”, and also wrote of the status and place of Jewish law in our legal system. Every time that I had the privilege of serving on panels over which Justice Rubinstein presided, I learned to appreciate and respect his expertise in the subject matter, his pragmatic approach, and his indefatigable attempts to bring the parties to a compromise in which neither party would leave in woe. When compromise could not be achieved, Justice Rubinstein would issue a clear, lucid, thoroughly reasoned opinion, and no less important, he would do so relatively quickly, to prevent any further injustice to the parties.

2.         As for the present matter, it was saddening to read the harsh descriptions in paras. 41-44 of my colleague’s opinion, in regard to the conditions in some Israeli prisons. During my tenure as a District Court judge, I came to know the harsh conditions in certain prisons, and especially in the detention facilities. I have not forgotten that situation while sitting in this Court. Sadly, not enough has been done to improve the sad situation in this regard, and thus judicial intervention is required to remedy this wrong, even if somewhat gradually, as stated in para. 128 of my colleague’s opinion.

            In HCJ 221/80 Darwish v. Prisons Service [38], Deputy President H. Cohn addressed the conditions of security prisoners, and although he was in the minority, his moral stand would seem indisputable:

It is the right of a person in Israel who has been sentenced to prison (or lawfully arrested) to be incarcerated under conditions that permit civilized human life. It means nothing that this right is not expressly established in any statute – it is a fundamental human right, and in a democratic state under the rule of law, it is so obvious that it is as if it were written in a statue. We have already had the opportunity to stress that while arrest – as an unavoidable evil – deprives a person of physical liberty, it is not intended to deprive him of his human character and status (ibid., 538-539).

            The words of Justice A, Barak in HCJ 355/79 Katlan v. Prison Service [39], 298, are also apt:

Every person in Israel is entitled to the fundamental right of physical wellbeing and to the protection of their right to human dignity… Even detainees and inmates are entitled to these rights. Prison walls do not sever a detainee’s right to human dignity. While the nature of life in prison does infringe many of the rights of a free individual … prison life does not require the deprivation of a detainee’s right to physical wellbeing and protection from infringement of his human dignity. His freedom is taken away, not his rights as a human being.

3.         Establishing a minimum living space for every prisoner and detainee of 4 square meters, exclusive of the lavatory and shower, or 4.5 square meters, including the lavatory and shower, would appear to be a minimum requirement, and more would be better. Perusing the situation in this area in other Western countries, and even some less advanced countries, shows that the living space required for a prisoner is much greater than the area stated in the order absolute (see, e.g., a survey by the Information Services Unit of the Ministry of Public Security on the subject of “Living Space for a Prisoner”). It is inappropriate that the State of Israel, which is true to individual rights and the values of equality and human dignity of every person as such, should be bringing up the rear, and not providing a suitable response to this important issue that is the focus of the petition.

4.         In view of the above, I concur in the opinion of my colleague and with his conclusion.

 

Justice H. Melcer:

1.         I concur in the comprehensive, impressive opinion of my colleague Deputy President E. Rubinstein, which reflects the humane judicial approach and unique style that have identified and characterized him over the years (and see para. 16, below).

2.         In view of the importance of the subject of the petition and the legal issues it raises, as well as my colleague’s interesting conclusions in regard to the place and status of Jewish law, I would like to add a few observations of my own.

The “living space” of a prisoner and a detainee

3.         The prisoner criminally convicted and sentenced to incarceration behind bars is deprived of freedom in order to punish him and distance him from society. Incarceration has additional premises and purposes – deterrence (of the convict and of potential offenders), and providing an opportunity for rehabilitation.

            The arrest and detention of a detainee, who enjoys the presumption of innocence, is contingent upon the grounds set out in the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996 (hereinafter: the Arrest Law), and in there being no way to achieve the purposes of detention by alternative means, or by electronically supervised arrest, which infringe the suspect’s liberty to a lesser degree.

            These deprivations of liberty do not mean that over and above them and the realization of their purposes, there is room or license to inflict harm upon the life, body, or dignity of a prisoner of detainee. These are basic interests of a person as such, and they are ensured and protected as fundamental rights by virtue of secs. 2, 4, and 11 of Basic Law: Human Dignity and Liberty. Infringing these rights is permitted only if the conditions of the “Limitations Clause” under sec. 8 of the Basic Law are met (in appropriate circumstances, the deprivation of liberty – by imprisonment or detention – per se, does meet the conditions of the Limitations Clause, see: HCJ 2442/11 Shtanger v. Speaker of the Knesset [40]).

            Our point of departure for continuing the discussion is, therefore, that an inmate does not shed his basic rights at the prison gate, other than his right to freedom of movement and the restrictions that derive from and are directly related to his imprisonment (see: PPA 4463/94 Golan v. Prisons Service [2], 157; HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance [4]).

4.         The right of a prisoner or detainee to his own “living space” in the prison or detention cell (respectively) is among the above ensured and protected rights. This right is established at a sub-constitutional level in the provisions of secs. 11B(b) and 11C of the Prisons Ordinance (New Version), 5732-1971 (hereinafter the Prisons Ordinance), as enacted in the framework of the Prisons Ordinance (Amendment no. 42) Law, 5772-2012 (hereinafter: Amendment 42) and supplementary arrangements promulgated in the Prisons (Imprisonment Conditions) Regulations, 5770-2010 (hereinafter: the Prisons Regulations). There are similar provisions in regard to detainees, see: sec. 9 of the Arrest Law and Criminal Procedure (Enforcement Powers – Arrests) (Conditions of Detention) Regulations, 5757-1997 (hereinafter: the Arrest Regulations; the Prisons Regulations and the Arrest Regulations will collectively be referred to as the Regulations). This will be set out in detail in the following section.

5.         The standard relevant to the present matter was adopted in the framework of sec. 11B of Amendment 42, and states as follows:

A prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity. (An identical standard was established for detainees in sec. 9(a) of the Arrest Law).

            The rule pursuant to the standard was established in reg. 2(h) of the Prisons Regulations, which states as follows:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell. (An identical rule was established for detainees in reg. 3(e)(3) of the Arrest Regulations).

            On the distinction between standards and rules, see: Menachem Mautner, Rules and Standards: Comments on the Jurisprudence of Israel’s New Civil Code, 17 Mishpatim 321 (1988) (Hebrew); Asaf Rentsler, Use Variance (in the chapter on general norms and the problem of the special case) 65-78 (2009) (Hebrew). I will quote from the latter:

“Legal norms are not cut from the same cloth.” One of the accepted distinctions is that between norms in the form of a rule and norms in the form of a standard. A rule is a norm that establishes a particular legal result upon the meeting of certain factual conditions, where the question of whether or not they are met is relatively easy to decide (for example: “One may not drive at a speed exceeding 50 kph”).  A standard is a norm that establishes a particular legal result in accordance with the application of a criterion that represents a particular value (for example: “One may not drive at an unreasonable speed bearing in mind the road conditions”) (ibid., p. 66, footnotes omitted).

            The distinction between a standard and a rule has several aspects and consequences, and I will address those relevant to the present matter below.

6.         Sadly, the rule concerning the average cell area for a prisoner or detainee is not observed in most of Israel’s prisons and detention centers, and the petition was filed in order to change the situation. The Respondents’ response to the order nisi that was granted did not succeed in raising the burden transferred to them to justify the continuation of this situation, which deviates from the rules cited in para. 5 above, and therefore, the remedies proposed by my colleague Deputy President E. Rubinstein are, indeed, required under the circumstances, for the reasons and supporting data he presented, and other reasons that I will immediately set out below.

Additional background considerations that justify making the order absolute

7.         Nelson Mandela, who knew what a jail is, once stated:

It is said that no one truly knows a nation until one has been inside its jails. (Quoted in The Economist, May 27, 2017, which devoted a report and an article to overcrowding in the world’s prisons, and various proposals for reform).

            In view of Mandela’s great sensitivity to the subjects of imprisonment and its conditions, the United Nations Standard Minimum Rules for the Treatment of Prisoners, cited in the opinion of my colleague Deputy President Rubinstein, were, upon their amendment in 2016, named the Nelson Mandela Rules (hereinafter also the Standard Minimum Rules, or SMR, or the Mandela Rules). See: UN General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules): Resolution adopted by the General Assembly, A/res/70/175 (8 Jan. 2016). On this subject in general, see: Leslie Sebba & Rachela Erel, “Freestyle Imprisonment”: On the implementation of the Norms of International Human Rights in the Israeli Prison System, 10 Hukim 123 (hereinafter: Sebba & Erel) (Hebrew).

8.         At this point we should clearly state that only after the order absolute is realized will we come close (in terms of the subjects of this petition) to the Mandela Rules and international treaties to which Israel is a party, and which she undertook to implement, as explained in my colleague’s opinion (for a similar approach, see: Sebba & Erel). Other states also followed this path after decisions by their respective highest courts obligated them to do so (by orders and reasoning similar to those of this judgment), as I will show below:

            A)        Italy: Pursuant to a 2013 decision by the European Court of Human Rights, which held that, within one year, Italy must find solutions for the situation in which prisoners were being held in areas of less than 3 square meters, a plan was implemented that both reduced the number of prisoners, and brought the prisons into compliance with the judgment (see: Council of Europe, Execution of Judgment of the ECHR (Torreggiani v. Italy – 43517/09, 46882/09, 55400/09 et al.) (2014)).

            B)        Hungary: Following a 2015 decision of the European Court of Human Rights that gave Hungary six months to present a timetable for taking steps to prevent the violation of art. 3 of the European Convention (it was held that confining prisoners in an area less than 3 square meters constituted a violation of the prohibition upon inhuman or degrading treatment or punishment), the following steps were undertaken: within one year (by November 2015), the number of prison spaces were increased by some 900 spaces through construction and renovation, and a number of legislative amendments brought about a reduction in the prison population by expanding the possibilities for the early release of low-risk prisoners, and allowing them to serve the final six months of their sentence at home, using electronic monitoring devices (some 500 prisoners within a year), and increased use of “house arrest”. A plan was also developed for constructing 800 additional prison spaces by the end of 2017, and some 2000 additional spaces by 2019 (see: Committee of Ministers, Communication from Hungary concerning the Istvan Gabor Kovacs group of cases and the case of Varga and others against Hungary (Applications no, 15707/10, 14097/12) (14.11.2016)).

            C)        Croatia is currently undergoing a similar process pursuant to a judgment of the European Court of Human Rights of Oct. 20, 2016 in the matter of the Croatian prison system (European Court of Human Rights, Mursic v. Croatia (Application no, 7334/13) (20.10.2016)). In this case, the European Court of Human Rights, sitting as a Grand Chamber, reversed a decision from 2015 that held that if a prisoner could move freely outside of his cell during the day, then being held in a cell smaller than 3 square meters did not necessarily violate art. 3 of the European Convention in regard to being held in inhuman conditions (parallel to the prohibition established in the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment). In reversing that judgment, the court returned to the rule that holding a prisoner in less than 3 square meters of floor space constitutes a violation of the prohibition against holding a person in inhuman conditions, regardless of the time spent outside the cell or other conditions. We should emphasize that in that case the calculation of floor space for a prisoner was calculated after setting off the lavatory space, as opposed to the method of calculation in Israel, which includes the lavatory area as part of the “living space” allotted a prisoner in a cell.

            D)        California, United States:  Pursuant to a decision of the Supreme Court of the United States in Brown v. Plata 563 U.S. 493 (2011), California took various steps that reduced the number of prisoners, and significantly lessened overcrowding in cells. See: Jonathan Simon, The New Overcrowding, 48 Conn. L. Rev. 1191, 1197, 1203-1204 (2016).

9.         Thus, the order absolute that we are issuing here is consistent with similar decisions in comparative law. Moreover, it grounds and is consistent with the values of the State of Israel as a Jewish and democratic state. I will now clarify this last statement.

As a Jewish State – How?

            The Explanatory Notes to the bill that led to Amendment 42 (Government Bills 5772 No. 650, p. 298 of Jan. 30, 2012) state as follows:

The principle of preserving the dignity and welfare of a prisoner was expressed, inter alia, in Jewish law, and was also implemented in Israeli law by Justice M. Elon. Thus, for example, in HCJ 337/84 Hokma v. Minister of Interior [1], 826, it was stated: “We hold as an important principle that every right of a person, as a person, is retained even when he is under arrest or imprisoned, and the fact of imprisonment alone is insufficient to deprive him of any right, except when necessary and deriving from the very fact of the deprivation of his freedom of movement, or when there is an express legal provision in that regard. This rule has its roots in Jewish heritage since time immemorial: In accordance with what is stated in Deuteronomy 25:3: “lest your brother shall be dishonored before your eyes”, the Sages established an important principle in Jewish penal theory: “once he has been flogged he is considered your brother” (Mishna Makkot 3:15). It is an important, beautiful principle that not only after he has served his sentence, but even while serving it, he is your brother and friend, and his rights and dignity as a person are preserved and remain.

            Now, my colleague the Deputy President, Justice E. Rubinstein, has ably expanded upon these words, and I have nothing to add to this.

As a Jewish State – How?

            This subject was also clarified in the opinion of my colleague the Deputy President, Justice E. Rubinstein, and my colleague Justice U. Shoham      concurred and saw fit to add to this point. I agree with both of them, but I would like to contribute an additional perspective in the following paragraphs.

10.       The standard is established here pursuant to Amendment 42, as an ameliorative amendment[6] to the British Mandate Prisons Ordinance, as well as for the Arrests Law, both of which are Knesset legislation.

            The rule is established at the level of regulations – as explained in para. 5 above – but it would appear that an exception to the rule was established along with it in the said Regulations, according to which the rule will only apply to cells whose planned construction will commence only after the entry into force of the Regulations, and to the extent possible, also to the planning and renovation of existing prisons or detention facilities (see: reg. 8(b) of the Prisons Regulations and reg. 3(e) of the Arrest Regulations). In other words, the rule applies prospectively, and is intended to be implemented only in the future (sine die), while for the present, as an exception, the current severe situation will continue.

            Thus, the Knesset established a standard; the subsidiary legislator established a rule on that basis, and immediately tried to exclude it such that it would be exempt from the standard’s application to the existing situation. What is the Court’s role in such a case? It must interpret the norms (inter alia, against the background of Basic Law: Human Dignity and Liberty), and prioritize them such that the command of the constituent authority rise above the provisions of the legislature, and the legislative enactments of the Knesset prevail over the subsidiary legislation.

            It would appear that the representatives of the executive branch sensed this necessary result that is required by the commands of the constituent authority and the legislative intent, and therefore tried to find a remedy by including a “validity of laws” provision in Amendment 14 [sic] (which is not mentioned in the bill), which was passed and which states as follows:

The Prisons (Imprisonment Conditions) Regulations, 5770-2010, as they were prior to the entry into force of this law, shall be deemed as if they were enacted in accordance with sec. 11B of the Ordinance, as it appears in sec. 1 of this law, and nothing in regulations enacted under the said section shall detract from their validity.

            This wording is vague, concealing more than it reveals, and appears, prima facie, to ignore Israel’s international obligations (see: Sebba & Erel). The answer to whether the attempt succeeded against the background of Basic Law: Human Dignity and Liberty and the dictate of the legislature will be presented in the following chapter.

The validity of the validity-of-laws provision and the interpretation of the application provisions

11.       The said validity of laws provision – found in both Amendment 42 and the Arrest Law – are ameliorative laws that were enacted after Basic Law: Human Dignity and Liberty, and therefore do not fall within the scope of sec. 10 of the said Basic Law, which treats of the validity of laws in force prior to the commencement of the Basic Law. This is also true in regard to the regulations promulgated pursuant to the Prisons Ordinance and the Arrest Law. (Compare to the majority opinion of the expanded panel in HCJ 6055/95 Tzemach v. Minister of Defense [41]; and see: Sebba & Erel, p. 47).

            Therefore, an exception that deviates from the standard established in the above laws should not be recognized here, and moreover, the standard gives expression to the provisions of Basic Law: Human Dignity and Liberty. The same is correspondingly true for the basic rule in regard to the living space of a prisoner or detainee established in the Regulations promulgated pursuant to the above laws.

12.       The Respondents are aware of these problems, and therefore argue that, by the validity of laws provision in Amendment 42, the legislature decided upon the priorities and the other living conditions appropriate for a prisoner – at present and in the future – and therefore, different criteria and manners of execution cannot be imposed (a similar argument is advanced in regard to detainees on the basis of the Arrest Law and the Arrest Regulations). In this regard, they purport to rely upon what was decided in HCJ 5636/13 Residents of Timorim – Agricultural Cooperative Society [42], paras. 9-10 of the opinion of my colleague Justice U. Vogelman, but the matter before us is not comparable to the said case, inasmuch as here we are concerned with the interpretation of legislative acts and establishing their hierarchy, whereas there the matter concerned the considerations of a planning institution.

            Moreover, the interpretation that the Respondents sought to give to the validity of laws provision in Amendment 42 does not withstand scrutiny, as we shall immediately explain.

13.       Section 3 of Amendment 42 establishes only this (I repeat the wording here so that the argument will be clear):

The Prisons (Imprisonment Conditions) Regulations, 5770-2010, as they were prior to the entry into force of this law, shall be deemed as if they were enacted in accordance with sec. 11B of the Ordinance, as it appears in sec. 1 of this law, and nothing in regulations enacted under the said section shall detract from their validity.

            In this regard, I would note:

            A)        New regulations have yet to be promulgated, and therefore, prima facie, the end of sec. 3 does not enter the discussion.

B)        The validity of laws provision does not say that the Prisons Regulations enacted prior to the adoption of the said Amendment are consistent with the provisions of Amendment 42 (that is, with the standard it embodies), or that they have the same force as the said Amendment (and carefully compare to the wording of secs. 36(f) and (h) of Basic Law: The Government in regard to Emergency Regulations).

Thus, the Bialer rule (see: HCJ 243/52 Bialer v. Minister of Finance [43] (hereinabove and hereinafter: the Bialer rule) does not apply to the present matter, not to mention that the rule was the subject of severe scholarly criticism (see: Hans Klinghoffer, On Emergency Regulations in Israel, Pinchas Rosen Jubilee Volume, (H. Cohn, ed., 1962) 86 (Hebrew); Benjamin Akzin, The Bialer Decision and the Israeli Legal System, 10 Hapraklit 113 (1954) (Hebrew)). On the entire issue, also see: Amnon Rubinstein & Barak Medina, Constitutional Law of the State of Israel, vol. 2, Government Authorities and Citizenship, 947 (2005) (Hebrew); and HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister [44], paras. 123 and 128 of the opinion of my colleague Deputy President E. Rubinstein, and see my dissenting opinion in HCJ 3132/15 Yesh Atid Party led by Yair Lapid v. Prime Minister [45]).

C)        The term “as if” in sec. 3 of Amendment 42 is only intended to create a “legal truth”, which is different from “the objective truth” (see: HCJ 430/08 I.D.F. Disabled Veterans Organization v. Minister of Defense [46]), and cannot serve to “upgrade” the status of the Prisons Regulations, or change the basic rule that they establish. Therefore, just as it was possible to challenge the Prisons Regulations for the accepted causes for challenging subsidiary legislation, one can continue to challenge them as if they were promulgated under sec. 11B of the new Prisons Ordinance, by virtue of sec. 11B(f) therein, which states:

The Minister may establish provisions for the implementation of this law in regulations, as well as provisions in regard to additional conditions to which an inmate will be entitled in the prisons.

We can thus state that the construction that the Respondents seek to pin on the above sec. 3 is flawed because it does not accord with most of the conditions of the validity of laws clause in sec. 8 of Basic Law: Human Dignity and Liberty (other than the condition that the violation be “by law or as prescribed by law”, see: Oren Gazal-Ayal, Restrictions of Basic Rights “By Law” or “As Prescribed by Law”, 4 Mishpat uMimshal 381 (1998) (Hebrew)), and it also deviates from the basic rule regarding the “living space” of a prisoner established in the Prisons Regulations and is, therefore, ultra vires the provisions of the authorizing law.

Alternatively, if anyone might imagine otherwise, the correct interpretation of the provisions of the Regulations does not permit them to be read in a such a manner that the exception to the basic rule established in the Regulations might apply without setting a time limit. We will address this in the following section.

The exception to the basic rule established in the regulations has “run its course”

14.       In my opinion, there are two reasons supporting the conclusion that the exception to the basic rule established in the Regulations has “run its course”:

            A)        A deviation from a standard should not be preserved for an extended period, inasmuch as the standard derives from Basic Law: Human Dignity and Liberty, the provision of sec. 1 of Amendment 42, and what was established under the Arrests Law, not to mention that the matter is contrary to Israel’s international obligations (see: Sebba & Erel).

            This result derives from the legislative hierarchy and the rule concerning the need to update regulations that have “run their course” (whether by an act of the authority or by a decision of the Court). (See and compare: HCJ 2902/11 Association for Children at Risk v. Ministry of Health [47]).

            B)        The Respondents did not show that they had tried “to the extent possible” (as the expression is employed in the Regulations), to apply the basic rule established in the Regulations to the present situation, even after all the extensions granted them after the order nisi was issued. Moreover, the budgetary reasons that were raised in this regard did not justify the priorities chosen, in view of the alternatives that would have violated the relevant basic human rights to a lesser extent (in this regard, the aforementioned article in the Economist is instructive in showing that improving prison conditions and reducing overcrowding, ultimately lead to budgetary savings and achieve better results in terms of rehabilitation and reducing recidivism). (And see: HCJ 4541/94 Alice Miller v. Minister of Defence [48], and see para. 47 of the opinion of my colleague the Deputy President, Justice Rubinstein and the references there).

            This contemporary modern approach, expressed in the recent studies quoted in the Economist and in my colleague’s opinion, return us to Jewish law, inasmuch as the Sages and later scholars were opposed, a priori, to oppressive imprisonment for any but the most grave offences (in modern terms, we would say that they espoused a proper proportionality).

The status of Jewish law

15.       My colleague the Deputy President, Justice E. Rubinstein, wrote an enlightening dissertation on the place of Jewish law in our prevailing law. I agree with the main points of his approach, and with his conclusion that:

…in opening its gates before it, the general law showed respect for Jewish law no less than Jewish law showed respect for the state’s law by entering those gates.

            I will, nevertheless, permit myself some remarks.

1. I believe that we should make greater use of the referring provision in Foundations of Law, 5780-1980, in appropriate cases. In my view, the principles of freedom, justice, equity and peace of Israel's heritage refer to the basic principles of Jewish law, but not necessarily to all the specific legal arrangements it establishes (which should be updated and adapted to our present reality).  I recently expressed this view in detail in my dissent in LFA 7141/15 A. v. B. [28].
2. In my opinion, we should turn to Jewish law at least to the extent that we make recourse to comparative law, and one who does so will discover that the legal thinking of the Sages, and of the Rishonim [Jewish legal decisors active before the publication of the publication of the Shulhan Arukh (1563 CE) – ed.]  and the Aharonim [Jewish legal decisors living after the publication of the Shulhan Arukh (1563 CE) – ed.] was exceptionally creative and profound, such that one can (directly or by analogy) find appropriate solutions for current issues in this prodigious source.

Having arrived at Jewish law, I should explain that the reason I saw fit to express my opinion here, rather than suffice in adopting the views of my colleague the Deputy President, Justice E. Rubinstein, merely by saying “I concur”, is because I also acknowledge the statement of the Sages, who instructed us:

 

One should only take leave of another with a matter of halakhah, so that he will be remembered by him thereby (TB Berakhot 21a).

            Having done so, I will now proceed to some words of farewell.

Some words of farewell upon the retirement of the Deputy President, Justice E. Rubinstein

16.       Before signing the judgment that my colleague the Deputy President, Justice E. Rubinstein, chose to deliver on the day of his retirement (and it is my privilege to join him in this creation), I would like to note that I first met Justice Rubinstein 44 years ago, when I was a senior attorney in the office of the Legal Adviser to the Ministry of Defense. Since then, our paths have crossed from time to time in his various official capacities: in the Ministry of Defense, during his service as Cabinet Secretary, as Attorney General and as a judge, and the closer I came him, the greater I came to respect and admire him. He is “a plastered cistern that loses not a drop” [Mishna Avot 2:8], and his talents and works are beyond description. He possesses that rare combination of a wise mind and a wise heart, and the manner in which he brought together the values of the State of Israel as a Jewish and democratic state with humane sensitivity has already earned him an honored place in Israeli case law for generations to come. We can only wish Justice Rubinstein what his name (Elyakim) suggests – that God will grant all that he asks, and that like his family name (Rubinstein – ruby), this bright gem (once set in the Priestly “breastplate of judgment”) will continue to shine upon his family and upon all of Israel.

 

Decided in accordance with the opinion of Deputy President E. Rubinstein.

Given this 19^th day of Nisan 5777 (June 13, 2017).

CrimA 9334/08

 

Appellant:               Emad Ali

 

v.

 

Respondent:                State of Israel

 

 

 

 

The Supreme Court

[ Nov. 23, 2011]

 

Before Justices M. Naor, E. Arbel, and Y. Danziger

 

Appeal of the judgment of July 1, 2008 and the sentence pronounced on Sept. 24, 2008 by the Beer Sheva District Court in CrimC 8237/06 per Judge Y. Zelkovnik.

 

Israeli Supreme Court cases cited:

[1]                    LCrimA 1178/97 Kahana v. State of Israel, IsrSC 51(3) 266.

[2]                    CrimA 7230/96 A. v. State of Israel, IsrSC 51(3) 513.

[3]                   CrimFH 2980/04 Oiku v. State of Israel, IsrSC 60(4) 34.

[4]                   CrimA 4596/05 Rosenstein v. State of Israel, IsrSC 60(3) 353.

[5]                   CFH 1558/03 State of Israel v. Assad, IsrSC 58(5) 547.

[6]                   CrimA 8831/08 State of Israel v. Alshahra (June 30, 2010).

[7]                   CrimA 9428/08 El Najar v. State of Israel (Dec. 12, 2008).

[8]       CrimA 3827/06 A. v. State of Israel (March 27, 2007).

[9]                   CrimA 6328/09 El Najar v. State of Israel (June 22, 2010).

[10]     CrimApp 1600/06 A. v. State of Israel  (March 5, 2006).

[11]     CrimA 6491/08 Bradville v. State of Israel (March 16, 2009).

[12]     CrimA 4043/05 State of Israel v. Bniat (Aug. 10, 2006).

[13]     CrimA 2985/10 Hamed v. State of Israel (Jan. 1, 2011).

[14]     CrimA 172/88 Vanunu v. State of Israel, IsrSC 44(3) 265 (1990).

[15]     LCrimA 9818/01 Biton v. Sultan, IsrSC 59(6) 554 (2005).

[16]     CrimA 163/82 David v. State of Israel, IsrSC 37(1) 622 (1983).

[17]     CrimA 9995/05 State of Israel v. Rabinowitz (Feb. 15, 2007).

[18]     CrimA 6613/99 Semirak v. State of Israel, IsrSC 56(3) 529 (2002).

[19]     CrimA 2285/05 State of Israel v. Hemed (Dec. 5, 2005).

[20]     CrimA 3687/07 Tochly v. State of Israel (Feb. 20, 2008).

[21]     CrimA 2180/02 Kassem v. State of Israel, IsrSC 57(1) 642 (2002).

[22]     CrimA 3944/08 Sha’aban v. State of Israel (June 18, 2009).

[23]     CrimA 1358/09 Dahar v. State of Israel (April 30, 2009).

[24]     CrimA 4352/08 A. v. State of Israel (March 23, 2009).

[25]     CrimA 6566/10 Veridat v. State of Israel (May 29, 2011).

[26]     CrimA 5225/03 Habas v. State of Israel, IsrSC 58(2) 25 (2003).

[27]     CrimA 5121/98 Yissacharov v. Chief Military Prosecutor, IsrSC 61(1) 461 (2006).

[28]     CrimA 8974/07 Honchian v State of Israel (Nov. 3, 2010).

[29]     CrimA 1746/00 Barilev v. State of Israel, IsrSC 55(5) 145 (2001).

[30]     CrimA 3477/09 State of Israel v. Hadad (Feb. 4, 2010).

 

Lower court cases cited:

[31]     CrimC (Beer Sheba) 8179/07 State of Israel v El Najar (July 9, 2007).

[32]   MApp 3403/08 (Beer Sheba Magistrates Court) State of Israel v. Harzallah (April 14, 2008).

 

Foreign cases cited:

[33]   S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10 (Sept.7).

[34]   United States v. Yousef, 327 F.3d 56, §45 (2nd Cir. 2003).

[35]   United States v. Bowman, 260 U.S. 94 (1922).

[36]   United Sates v. Pinto-Mejia, 720 F.2d 248, 259 (2nd Cir. 1983)

[37]   United States v. Chua Han Mow, 730 F.2d 1308 (9th Cir. 1984).

[38]   United States v. Schmucker-Bula, 609 F.2d 399 (7th Cir 1980).

[39]   United States v. Felix-Gutierrez, 940 F.2d 1200 (9th Cir. 1991).

 

 

Abstract

 

CrimA 9334/08 Emad Ali v. State of Israel

 

       The appellant was convicted in the District Court of weapons offenses (trading in weapons) and conspiracy to commit a felony. The offenses attributed to the Appellant were committed in their entirety in the Gaza Strip, and none, nor any part of any of them, were committed within the territory of the State of Israel, nor were their outcomes intended to occur in the State of Israel. The central question in the appeal was whether these “foreign offenses” (under sec. 7(b) of the Penal Law) constitute crimes against the security of the State of Israel for the purpose of extraterritorial jurisdiction.

 

In denying the appeal, the Supreme Court (per Justice M. Naor, Justice E. Arbel and Justice Y. Danziger concurring) held:

1.         As a rule, the area of application of Israeli criminal law is within the territory of the State. When we seek to apply this law to foreign offenses, we must be able to point to a “connecting link”, a “normative bridge”, between the law of the state and these offenses that were committed beyond the borders of the state, which will replace the territorial element

2.         Several jurisdiction-extending nexuses are accepted in most legal systems, including the Israeli legal system: an active personal nexus – between the perpetrator of the offense and the legal system; a passive personal nexus – between the victim of the offense and the legal system; a universal nexus – which relates to particularly serious offenses whose prevention is a matter of universal interest; a vicarious nexus  – which relates to offenses that Israel will address by virtue of a treaty between itself and another state; and the protective nexus – which concerns acts that have harmed or were intended to harm essential state interests, such as security, the regime or the economy.

3.        There is nothing in the first part of s. 13(a) of the Penal Law that defines the scope of the protective nexus. The question is whether the word “against” must be interpreted as referring only to offenses which by their nature are directed against national security, such as offenses specified in the relevant chapters of the Penal Law and the Prevention of Terrorism Ordinance. According to the purpose of s. 13(a), the interpretation according to which the protective nexus remains applicable to all acts which by virtue of their circumstances are directed against national security is to be preferred.

4.         Interpretation of the law in the criminal sphere is also purposive interpretation, in the framework of which one must examine the language of the law, as well as the goals and interests that the law is intended to realize. An interpretation of the language of the law that is favorable to the accused may nevertheless be rejected if it fails to optimally realize the purpose of the law.

5.         The statutory provisions regarding extraterritorial application by virtue of the protective nexus, as formulated prior to Amendment 39, applied the domestic law to every act that harmed or was intended to harm “the State” or important interests such as the economy of Israel and its security. The present formulation restricts the application of the law by virtue of the protective nexus to offenses that are directed against certain interests, and it no longer allows for the application of the law to “any” harm to the “state”. Despite the textual change, Amendment 39 did not reduce the scope of the protective nexus. Israel’s criminal laws continue to apply to a person who perpetrates an act which, according to its circumstances, harmed or was intended to harm the security of the state, as was the situation that pertained prior to the Amendment.

6.         The purpose of the protective nexus, particularly in the context of national security, lends support to the conclusion that the protective nexus is not confined to offenses that are intrinsically harmful to national security. The purpose of this nexus is a response to the need of the state to protect itself from deeds that are perpetrated outside its borders and that are directed against vital interests.

7.         The function of the protective principle is to protect important interests from various threats. Clearly, there are some deeds which, by virtue of their circumstances, present a real threat to the security of the State of Israel, even if they do not constitute “pure” security offenses like s. 111 of the Penal Law that prohibits the delivery of information to the enemy. Thus, for example, a person’s acts that constitute a link in the terrorism chain, whether they be the funding of the activities of a terrorist organization or the smuggling of weapons to that organization, constitute a concrete threat to security.

8.         The protective principle, when it is not restricted to a closed, specific list of offenses, allows for effective, focused action against those links in the chain of terror whose operational base is often to be found outside the territory of the State of Israel. The purpose of the Law, therefore, is best realized when the scope of the protective application is not confined to a list of specific offences that are intrinsically directed against national security.

9.         The penal provisions under which the Appellant was charged apply by virtue of the protective nexus. Therefore, the question of whether his acts are punishable in the territory in which they were perpetrated is immaterial. The protective nexus prevails, and the foreign law does not restrict its scope. This means that for the purpose of extraterritorial application by virtue of the protective nexus, there is no requirement of double criminality.

10.       Section 8 of the Criminal Procedure (Interrogation of Suspects) Law, 5762- 2002 states that if the suspect’s interrogation was recorded in writing, this record shall be in the language in which the interrogation was conducted, and if it is not possible to record the interrogation in the language in which it was conducted, a visual or audio record should be made. In our case, this requirement was not fulfilled. Such a defect can significantly reduce the weight of the confession, and can even affect its very admissibility. However, in certain circumstances, the weight of the statement may be judged on its substance in order to decide whether the record departs from the truth.

Justice Y. Danziger (concurring):

1.         As a rule, the case-law directs that notwithstanding the provision of s. 8(1) of the Interrogation of Suspects Law, where the court is convinced that even though the confession was not transcribed in the language in which the suspect was interrogated, it accurately reflects what the suspect said in his interrogation, the confession will be admissible and full weight may be attributed to it. This approach renders s. 8(1) meaningless. It is the direct continuation of the accepted approach in the case law of this Court prior to the enactment of s. 8 of the Interrogation of Suspects Law.

2.         It therefore appears that there has been no change in the approach of the case law to the matter of the language in which the suspect’s confession was recorded, despite the clear, explicit directive in the Interrogation of Suspects Law. I am of the opinion that the Interrogation of Suspects Law sought to introduce a substantive change in the normative situation that pertained prior to its enactment. The legislature is deemed not to waste its words, yet the case law has not given full expression to the change that the legislature sought to bring about in relation to the manner of recording the confession of a suspect.

3.         A breach of the provisions of ss. 8(1)-8(2) of the Interrogation of Suspects Law should have real repercussions not only with respect to the weight of a confession, but primarily at the level of admissibility, in view of the ongoing strengthening of the right to a due process at all stages, as expressed in the case-law exclusionary doctrine, and in view of the recognition of due process as a constitutional right.

 

 

JUDGMENT

 

Justice M. Naor

       The appellant was convicted in the District Court (Judge Y. Zelkovnik) of weapons offenses (trading in weapons) and conspiracy to commit a felony, perpetrated in the Gaza Strip. The central question in the appeal before us is whether the offenses attributed to the Appellant, which were committed outside the sovereign territory of the State of Israel, constitute crimes against the security of the State of Israel for the purpose of extraterritorial jurisdiction.

 

Background

The Charges against the Appellant

1.         The Appellant, a resident of the Gaza Strip, was charged with the offense of trading in weapons under sec. 144(b2) of the Penal Law, 1977 (hereinafter: Penal Law), and the offense of conspiracy to commit a felony under sec. 499(a)(1) of the Penal Law.

2.         According to the account in the information, on Jan. 30, 1986, the Government of Israel declared the Popular Front for the Liberation of Palestine (hereinafter: the Popular Front) to be a terrorist organization. The Appellant, at the time relevant to the information, was a resident of Beit Hanoun in the Gaza Strip, served as a police officer in the Palestinian Authority, and was involved in commerce. In 2001, the Appellant conspired with Fana Nasser Kafarna (hereinafter: Kafarna), Abdulrahman Juma (hereinafter: Juma) and others to supply weapons to the Popular Front, which constituted a threat to the security of the State of Israel. The role of the Appellant was to purchase the required weaponry and sell it to the Popular Front, as instructed by Kafarna and Juma, taking advantage of his connections in the Palestinian Authority.  In the years 2001-2002, in order to execute the object of the said conspiracy, the Appellant purchased 65 Kalashnikov rifles, 5,000 rounds of ammunition for the Kalashnikovs, and 80 kilograms of TNT explosives from an arms dealer, as requested by the Popular Front, and sold it for profit to the Popular Front, which caused harm to Israel’s security. Pursuant to these transactions, the Appellant drove Juma and another person to a deserted house in the Gaza Strip in order to test a device containing explosives supplied by the Appellant. In addition, the Appellant supplied the Popular Front with copper sheets for the purpose of producing pellets to be added to the explosive devices, hand grenades, and boxes of “diet sugar” intended for the production of explosives. The Appellant also supplied 100 uniforms. The Appellant stopped supplying arms and services to the Popular Front following a dispute about the prices demanded by the Appellant.

 

The Arrest and Interrogation

3.         In the early hours of July 18, 2006, the Appellant was brought to Israel in the course of operations by the army and Israel Security Agency (hereinafter: ISA)[1]. The ISA began its interrogation of the Appellant on the same day. Additional interrogations took place throughout that month and the month of August. Interrogation of the Appellant was completed on August 13, 2006.

4.         The Appellant was interrogated for the first time, on July 18, 2006, the day he was arrested.  The main points of the interrogation were documented in a memorandum marked P/9. The said memorandum noted that during his interrogation the Appellant provided details about joining the Popular Front in 1988, that he headed a cell, and that he was twice arrested by the Israeli security services for the activities of that cell. Subsequently, after having been involved in taking action against Palestinian collaborators and in military activity of the Popular Front in the Gaza Strip, the Appellant acted like a “fugitive” and remained in hiding until he managed to escape to Egypt, from which he was expelled to Libya. Between the years 1989-1994, the Appellant studied in Cuba, funded by the Popular Front. In 1995, the Appellant returned to the Gaza Strip and began working in the Palestinian Police. According to the said memorandum (P/9), the Appellant also recounted that after his return to the Strip, in the course of 2002, at the request of Nassar Kafarna and a person by the name of Juma, who were members of the Popular Front, the Appellant purchased  Kalashnikov rifles, ammunition for rifles, and T.N.T. explosives from an arms dealer named Nabil Ziddam; he also bought copper sheets and uniforms, and sold them to Kafarna and Juma. In addition, it was noted that the Appellant drove Juma and others to the place in which they ran a trial of an explosive device, and on another occasion he travelled with them to a place where they tried to launch a rocket containing explosive material that he had supplied them earlier. It was also noted in the memorandum that in the course of the interrogation, which began at 8:55 in the morning and terminated at 6:30 in the evening, the Appellant was given many cigarettes and several cups of coffee.

5.         On the day of his arrest – July 18, 2006 – some three hours after the completion of the said ISA interrogation, the police took a statement from the Appellant (P/4) in which he confessed to the acts attributed to him (hereinafter: the statement or P/4). According to what was written in the statement, the Appellant confessed that he had traded with activists in the Popular Front in weapons purchased from a person by the name of Nabil Ziddam, and in uniforms and boxes of “diet sugar”, exploiting his connections with the Palestinian Police. All this was done at the request of Kafarna and Juma. The Appellant also stated that on one occasion he had driven Juma and others to a place where they tried to activate an explosive device. Contrary to what he said in his interrogation by the ISA, in his statement the Appellant said that he was invited to join in the trial launch of the rocket, but refused. Furthermore, the Appellant was documented as saying that he knew that the weapons were intended for the Popular Front, but he did not know to what use they would be put by the organization, and that he traded in them for the purpose of financial gain. He also reported that Juma told him that the uniforms were intended for activists in the Popular Front. The statement P/4 was taken from the Appellant in Arabic and was written down in Hebrew. At the end of the statement, the Appellant was documented as stating: “After [the above statement] was translated for me into the Arabic language, I confirm it with my signature.”

6.         In the ISA interrogations of the Appellant that took place later in the month of July 2006, the Appellant retracted his confession and claimed that he had lied about his involvement in the trading of weapons with activists from the Popular Front. In an ISA interrogation conducted in the course of the month of August 2006, on August 7, 2006 (and documented in memorandum P/14), the Appellant once again admitted that he had traded in weapons with members of the Popular Front – Kafarna and Juma. On the same day, August 7, 2006, another statement was taken from the Appellant by the police (hereinafter: P/5). In this statement, the Appellant stated that he supplied Kafarna, an active member of the Popular Front, with 20 empty hand grenades and three Mirs devices[2]. The Appellant also noted in this statement that he had supplied Kafarna with a Kalashnikov rifle for the purpose of self-defense. In addition, he said that in 1990 he trained in Syria, in the framework of the compulsory training of the Popular Front. In subsequent interrogations of the Appellant, he once again denied that he had traded in weapons with the Popular Front.

7.         On Dec. 7, 2006, the Minister of Defense issued a certificate of privilege concerning, inter alia, the methods of interrogation employed by the ISA. After the certificate was issued, the Appellant was shown “paraphrases” of his interrogation, which related to things he had said in front of “others who were not in positions of authority.” On April 19, 2007, this Court (per Justice A. Grunis) denied a petition submitted by the Appellant to disclose evidence (CrimApp 10537/06).

 

The Offenses attributed to the Appellant are Foreign Offenses

8.         It should be noted at the outset that the offenses attributed to the Appellant were committed in their entirety in the Gaza Strip, and none, nor any part of any of them, were committed within the territory of the State of Israel, nor were their outcomes intended to occur in the State of Israel. The issue, therefore, is one of “foreign offenses” (sec. 7(b) of the Penal Law). Since we are dealing with foreign offenses, the written consent of the Attorney General to the prosecution was attached to the information, as required under s. 9(b) of the Penal Law. In principle, domestic criminal law applies to offenses that were committed in the sovereign territory of the state. In our legal system, such offenses are called “domestic offenses” (ss. 7 and 12 of the Penal Law; and see LCrimA 1178/97 Kahana v. State of Israel [1], at p. 269). There are exceptions to this rule, and a legal system may extend the application of its laws to criminal offenses committed beyond its territorial borders. In Israeli criminal law, such offenses are called “foreign offenses”.

       A foreign offense, according to its definition, is any offense that is not a domestic offense (sec. 7 of the Penal Law). A domestic offense is, as stated, an offense that is committed entirely or partially within the State, or the outcome of which is intended to eventuate in the State (sec. 7(1) of the Penal Law). In other words, a foreign offense is any criminal offense which was committed entirely beyond the territory of Israel, such as in our case. As a rule, the area of application of Israeli criminal law is within the territory of the State. When we seek to apply this law to foreign offenses, we must be able to point to a “connecting link”, a “normative bridge”, between the law of the state and these offenses that were committed beyond the borders of the state, which will replace the territorial element (see CrimA 7230/96 A. v. State of Israel  [2], at pp.  522-523; CrimFH 2980/04 Oiku v. State of Israel [3], at pp. 38-39; CrimA 4596/05 Rosenstein v. State of Israel [4], at pp. 383-385). Several jurisdiction-extending nexuses are accepted in most legal systems, including the Israeli legal system: an active personal nexus – between the perpetrator of the offense and the legal system; a passive personal nexus – between the victim of the offense and the legal system; a universal nexus – which relates to particularly serious offenses whose prevention is a matter of universal interest; a vicarious nexus  – which relates to offenses that Israel will address by virtue of a treaty between itself and another state; and the protective nexus – which concerns acts that have harmed or were intended to harm essential state interests, such as security, the regime or the economy. These interests are specified in s. 13 of the Penal Law (for an elaboration of the various nexuses, see: S.Z. Feller, Foundations of Criminal Law, vol. 1, 240-30 (1974) (Hebrew) (hereinafter: Feller)).

9.         In the trial court, the Respondent argued that Israeli law applies extraterritorially to the offenses attributed to the Appellant by virtue of the protective nexus. These offenses, it was argued, were committed against the security of the state (see s. 13(a)(1) of the Penal Law which states: “Israel’s penal laws will apply to foreign offenses against national security, its foreign relations or its secrets”). The Appellant, on his part, argued that he perpetrated the acts attributed to him for purely economic motives, with no intention of harming national security. Therefore, he argued, for the purpose of extraterritorial application, no offenses against the security of the state are involved. In addition, the Appellant claimed that the Court did not acquire jurisdiction to try the offense of conspiracy attributed to him. The offense of conspiracy to commit a felony appears in s. 499(a)(1) of the Penal Law, which provides:

          499. (a) If a person conspires with another to commit a felony or misdemeanor, or to commit an act in a place abroad which would be a felony or misdemeanor if it had been committed in Israel – and which also is an offense under the laws of that place, then he is liable –

(1) if the offense is a felony, to seven years imprisonment or to the punishment prescribed for that offense, whichever is the lighter punishment; [emphasis added – M.N.]

The Appellant claimed that because he was accused of conspiring to commit an act abroad, the matter falls within the scope of the latter part of s. 499(a)(1) of the Penal Law. Therefore, in order for the offense of conspiracy to arise, the substantive offense attributed to the Appellant, i.e. dealing in weapons, must also constitute an offense under the laws of “that place” – i.e. under the laws of the Gaza Strip. This, he argues, was not proved. On the substance of the charge, the Appellant argued that his confession from the first day of his arrest (P/4) is inadmissible due to the use of improper interrogation methods, and at the very least, the circumstances under which the confession was made reduce its weight considerably.

 

The Judgment of the District Court

10.       Regarding the question of the application of the law, the District Court ruled that the circumstances of the Appellant’s acts – the large-scale sale of weapons to a terrorist organization – were sufficient to justify the application of the penal laws of Israel to the acts, and it was not necessary to decide on the question of whether intention to harm security was also required. In any case, it was determined that the existing factual foundation showed that the Appellant was aware that the weapons that he sold would be used to harm the security of the State of Israel – such knowledge being equivalent to intention to harm the state. As for the offense of conspiracy, the District Court ruled that the Appellant was being tried in the framework of the first part of the section, which treats of the offense of conspiracy as a foreign offense against national security. In such a case, extraterritorial application of the law is permissible, just as domestic law may be applied to the offense of dealing in weapons.

On the merits, the District Court dismissed the Appellant’s arguments concerning the admissibility and the weight of his confession to the acts attributed to him in the information. The District Court examined the Appellant’s arguments that improper interrogation methods were employed against him, and that his confession was not given freely and voluntarily, and found them to be without substance. The District Court pointed to a contradiction in the Appellant’s arguments that detracted from his claim that the confession was coerced: on the one hand, the Appellant said that he confessed after improper interrogation methods were employed; on the other hand, he argued that despite the pressures of the interrogation, he did not make any confession, and that he signed the statement P/4 due to the pressure applied to him, without knowing that according to its contents, it was a confession.

       In regard to the circumstances in which the confession was obtained, the District Court ruled that only the means of interrogation employed up to the time the Appellant made statement P/4 – which, as noted, was made already on the first day of his arrest – were relevant. It also found that the immediate commencement of the interrogation, as well as its duration, negate, or at least detract from, the Appellants’ arguments with respect to the methods of interrogation used until he made statement P/4, such as his argument that he was put in solitary confinement in the freezing cold. In addition, the Court found that the testimony of the interrogators that the Appellant was not starved, threatened or put in solitary confinement was reliable. It was also determined that the ISA records correctly described what happened in the interrogation room. The court added that the interrogation of the Appellant was indeed very lengthy and even exhausting, but this was necessary for the purposes of the interrogation, and was not intended as a means of “squeezing” a confession out of the Appellant. Therefore, it was held that in the course of the ISA interrogation prior to delivery of statement P/4, the Appellant was not subjected to improper means of interrogation. A similar determination was made with respect to obtaining the confession at the police station. The court accepted as reliable the testimony of Onsey Harladin, a police investigator who took down statement P/4, that the Appellant made the statement voluntarily. It was also found that the transcription of the statement does not constitute a copy of memorandum P/9, and even though statement P/4 is generally consistent with what was recorded in P/9, there are differences between the two documents that attest to the fact that it is not a “clone”.

11.                   As for the weight of the confession P/4, the District Court determined that even though the transcription of a suspect’s statement in the language in which it was uttered is of utmost importance, in the circumstances of this case the transcription of P/4 in the Hebrew language did not detract from its weight. Officer Harladin speaks Arabic fluently, and he testified that he translated everything that the Appellant said. Moreover, the Appellant did not relate to the contents of the statement and did not indicate actual places in which, according to him, the meaning of his words had been distorted due to the method of transcription. The court further determined that statement P/5 simply added details about trade in additional weapons, without negating or contradicting what was said in P/4. Thus, there is nothing in P/5 to detract from the weight of statement P/4. Additional support for the confession was found in the Appellant’s testimony in court, in the framework of which he confirmed that he had transferred grenades and communications devices to Kafarna, an activist in the Popular Front. This testimony confirms the existence of a connection between the Appellant and the activists in the Popular Front with respect to the transfer of weaponry. Yet further support was to be found in the statement made to the police by another active member of the Popular Front – Shafik el-Barim (P/7). In his statement, Shafik confirmed that Juma is a senior activist in the Popular Front, who is involved in the military activity of the organization, including the launching of rockets. He also gave information about the connections of Kafarna, who is Juma’s superior. In his testimony, Shafik denied that he had said these things to the police, but the court accepted the position of the prosecution that Shafik’s statement prior to his testifying in court should be accepted, under s. 10A of the Evidence Ordinance [New Version], 5731-1971. The court found additional probative support in the statement of Emad Hassin (P/1), who supplied details about the arms dealer Nabil Ziddam that were identical to those provided by the Appellant.

12.                   The District Court therefore ruled that the Appellant’s statement P/4 should be assigned substantial weight, and that the Appellant did indeed engage in the trade of weapons with activists from the Popular Front. Furthermore, the court held that the Appellant’s argument that he acted from economic motives was not to be dismissed. However, in view of the circumstances as described, it found that the Appellant was aware of the fact that the weapons he supplied to the Popular Front were intended to harm Israel’s security – and it seems that the profit motive bolstered the Appellant’s support for the Popular Front that arose from his family and personal connections with the organization. The Court therefore convicted the Appellant of the offenses attributed to him in the information.

13.                   The court sentenced the Appellant to 12 years imprisonment, from which the period of his detention would be deducted. It also imposed an additional two-year conditional sentence, for a period of three years after completion of the prison term. The court remarked in its sentencing decision that the Appellant’s deeds were particularly grave in view of the sheer volume of weapons that were sold, and in view of the terrorist nature and character of the organization to which they were sold. This gravity was exacerbated by the Appellant’s knowledge that the arms were intended to harm the State of Israel or its citizens. The fact that it was not proved that these weapons were actually used for the purpose of terrorist attacks within the territory of the State of Israel or for other hostile purposes is of no consequence. The court pointed to similar cases of arms smuggling and dealing in which heavy sentences were imposed upon the accused. In mitigation, the court took into consideration the fact that the Appellant had been dealing in arms for a relatively short period (only during the years 2001-2002 ). However, the fact that the Appellant had not expressed remorse for his actions added to the severity. The court therefore sentenced the Appellant to the said punishments.

       Hence the appeal before us, which challenges both the conviction and the severity of the sentence.

 

The Arguments of the Appellant

14.       The Appellant once again argued that Israeli law does not apply to his case, and that the information does not disclose an offense. In addition, the Appellant repeated his claim that his confession P/4 was not given freely and voluntarily, since it was obtained following the application of unlawful pressure by the ISA interrogators. The Appellant based this argument, inter alia, on a paraphrase of his statement to “another” that he was shocked by his arrest and therefore confessed. The Appellant also argued that he was not aware of the contents of  statement P/4 that he signed, and that he signed only following pressure from the interrogators. He also said that he signed the statement on the understanding that this would bring about his release. The Appellant further claimed that the District Court was mistaken in regarding as credible the testimony of the interrogators, according to whom improper means of interrogation had not been used on him, and he claimed that the findings of the District Court attest to the fact that improper means were indeed employed.

       In addition, the Appellant claimed that the transcription of his confession in the Hebrew language detracts from its weight, and its reliability is compromised in view of his contradictory statement documented in P/5, the contents of which he says he did not deny. Therefore, the transcription of P/4 in a language other than the original, and the contradiction between P/4 and the lawfully-obtained P/5, constitute cause for preferring the latter. It was also contended that weight should not be attributed to statement P/4 since the required time had not lapsed between the police interrogation – at the end of which the Appellant signed P/4 – and the ISA interrogation that preceded it. The police interrogation was conducted only three hours after the completion of the ISA interrogation, and this was not sufficient to create the necessary separation to allow the Appellant understand that these were two different interrogations. Similarly, according to the Appellant, he was not properly cautioned against self-incrimination, and it was not explained to him that there is a difference between the police interrogation and its ramifications on the one hand, and the ISA interrogation on the other.

       Finally, the Appellant argued that it had not been proven that he had mens rea. He claimed that the offense of conspiracy requires proof of intention that the offense to which the conspiracy relates will be perpetrated, and intention that national security will be harmed as a result. In view of the fact that he acted from purely economic motives, the prosecution did not raise this burden of proof.  The Appellant therefore argued that his conviction could not stand.

15.                   Regarding the sentence, the Appellant argued that the Court did not assign sufficient weight to mitigating considerations, and imposed a prison sentence that was too severe. The Appellant reiterated that the offenses attributed to him were committed over a short period of time, motivated by economic hardship and the need to support his family, with no ideological motivation whatsoever. He also claimed that his health had deteriorated from the beginning of his detention, which was characterized by harsh conditions and loneliness. The Appellant further argued that his sentence was more severe than sentences that had been imposed in similar cases, constituting a deviation from the principle of uniformity in sentencing. He therefore appealed to this Court to reduce his sentence.

 

Arguments of the Respondent

16.       With respect to the application of Israeli law to the offenses ascribed to the Appellant, the Respondent relied on the judgment of the District Court. Regarding the admissibility of the confession, the Respondent claimed that the Appellant’s arguments were directed against factual findings and credibility, with which the appeal instance does not rush to interfere. Thus, it would be unwarranted to intervene in the findings of the District Court that the Appellant’s confession  was given on the first day of his detention, after he had rested in his cell; that the testimonies of the ISA interrogators regarding the conditions of the interrogation were credible, and that the paraphrases of the confidential material did not lend any real support to the Appellant’s claims about the use of improper interrogation methods. Moreover, this Court (per Justice A. Grunis) denied the Appellant’s petition for disclosure of evidence, and ruled that the confidential material does not contain material that is essential to the Appellant’s defense. The  Respondent further argued that the Appellant’s line of defense is not consistent. While on the one hand he argues that his confession was obtained as a result of improper means of interrogation, on the other hand he claims that statement P/4, in which he confessed to the charges in the information, did not record what he said.

17.       As for the weight of the confession, the Respondent argued that this Court should not intervene in the factual findings of the District Court in regard to the separation of the police interrogation from that of the ISA. Regarding the transcription of the Appellant’s confession in a language other than the original, the Respondent agreed that, as a rule, the confession of an accused should be written down in the language in which it was uttered. However, this does not affect the weight of the statement. According to the Respondent, the District Court correctly considered the totality of the circumstances surrounding the documenting of the statement, including the fact that the statement was translated for the Appellant, and the court correctly ruled that it was reliable. Regarding the mental element of the crime, it was argued that it had been proved that the Appellant was aware that the weapons were being transferred to the Popular Front, and that they were intended to serve the purposes of the organization against Israel. True, the Appellant acted for financial gain, but his level of knowledge about the fact that the organization is hostile to Israel and acts to harm Israel is equivalent to intention to achieve the outcome.

Regarding the punishment, the Respondent argued that the Appellant’s sentence is consistent with the gravity of his actions, and with the appropriate level of punishment for these sorts of crimes. The Respondent added that the Appellant’s acts did not constitute a one-time error, and they were not committed against the background of any particular hardship. It was also argued that the Appellant did not express remorse for his actions, nor did he take responsibility for them. The Respondent therefore requested that we allow the punishment to stand.

 

Discussion and Decision

18.       The deeds attributed to the Appellant in the information were perpetrated, as stated, beyond the sovereign territory of the State of Israel. The Respondent agrees that these are foreign offenses. Its position is that these offenses have extraterritorial application by virtue of the protective nexus, since they are crimes against national security. We will first address the question of the extraterritorial application of the offenses of which the Appellant was convicted. Thereafter, the Appellant’s other arguments regarding the admissibility of his confession and its weight, and his arguments as to the sentence, will be considered.

 

Extraterritorial Application and the Protected Interest – The Law Prior to and Subsequent to Amendment 39

19.       The relevant statutory provisions concerning extraterritorial application were changed by the Penal Law (Amendment 39) (Introductory Part and General Part), 5754-1994, (hereinafter: Amendment 39; see also A. v. State of Israel [2], at pp. 519-520). The present case is governed by the statutory provisions as currently formulated, subsequent to Amendment 39.

20.       As noted, the starting point is that the penal laws of a state apply within its sovereign territory. There are, as we have said, exceptions. When a foreign offense is directed against an essential interest of the state, domestic law may be applied to it by virtue of the protective nexus.  The protective nexus is accepted in most legal systems, and it constitutes a “normative bridge” between the law of the state and the deed perpetrated beyond the borders of the state, replacing the territorial basis. The justification for this nexus can be found in the right of a sovereign state to protect, on its own, those interests that are vital to its existence, such as the interest of security.

Prior to Amendment 39 of the Penal Law, the provision relevant to our case was to be found in s. 5 of the Penal Law 5737-1977, which stated as follows:

            5.                     The courts in Israel are authorized to try according to the laws of Israel a person who committed abroad an act which would constitute an offense if committed in Israel, and the act was harmful or was intended to harm the State of Israel, its security, its property, its economy or its foreign relations, its transportation links or its communication links with other states (emphasis added -  M.N.).

Moreover, s. 5(b) of the Penal Law prior to Amendment 39 contained a list of specific offenses that had extraterritorial applicability due to the protective nexus. The interpretation of s. 5(a) of the Penal Law was discussed in the case of A. v. State of Israel [2]. That case concerned an accused who attempted to smuggle drugs from Venezuela to Canada by means of a bag on which he stuck a forged label so that it appeared to be an Israeli diplomatic pouch. The judgment of this Court dealt, inter alia, with the question of whether the penal laws of Israel could be applied to such acts, which fell within the category of foreign offenses. The Court decided, relying on the language of s. 5(a) of the Penal Law (prior to Amendment 39), that for the purpose of extraterritorial application by virtue of the protective nexus, it was sufficient that there was an act committed under circumstances that demonstrated intention to harm the state or which caused it actual harm. It also decided that the protective nexus was not confined to specific statutory provisions whose subject and purpose are the protection of vital national interests (A. v. State of Israel [2], at pp. 525-526).

Today, subsequent to Amendment 39, the provisions relevant to the protective nexus are to be found in s. 13(a) of the Penal Law, which provides:

13 (a) Israel penal laws shall apply to foreign offenses against –

(1) national security, the State’s foreign relations or its secrets;

(2) the form of government in the State;

(3) the orderly functioning of State authorities;

(4) State property, its economy and its transportation and communication links with other countries;

(5) the property, rights or orderly functioning of an organization or body enumerated in subsection (c).

…

(c) “Organization or body”, for the purposes of subsec. (a)(5) – …

 

Amendment 39 extended the scope of the protective nexus to the protection of Jews and Israelis from harm directed at them because of their identity. This is anchored in s. 13(b) of the Penal Law:

13 (b) Israel penal laws shall also apply to foreign offenses against –

(1) the life, body, health, freedom or property of an Israel citizen, an Israel resident or a public servant, in his capacity as such;

(2) the life, body, health, freedom or property of a Jew, as a Jew, or the property of a Jewish institution, because it is such.

21.                   Thus, the wording of the Law subsequent to Amendment 39 is not identical to its wording prior to the Amendment. The pre-Amendment wording indicated that extraterritorial application of the law is possible both in the case of an “act” that harmed the state (or was intended to harm it) and to specific offenses from a closed list. The present text no longer relates to specific offenses, and the Law no longer refers to an “act” that harmed or was intended to harm the state or various interests; rather, it refers to foreign offenses “against” certain specified interests, including national security.  Does the word “against” refer only to offenses that by their nature are directed against the essential interests of the state, and which are specified in s. 13 of the Penal Law, or does it also include acts, constituting offenses, that according to their circumstances, were directed against those same interests, for example, if they were committed with the intention of harming those interests.

This question is important in our context. As will be recalled, the Appellant was accused of the offense of trading in weapons, under s. 144(b2) of the Penal Law, which states:

(b2) If a person produces, imports, exports, trades or performs any other transaction with weapons, which includes giving a weapon into the possession of another – whether or not for consideration – without having lawful permission to perform the said act, he shall be liable to fifteen years imprisonment.

            The offense of trading in weapons is not necessarily related to protection of national security. In some circumstances, the act of trading in weapons may have the effect of harming national security or of indicating an intention to harm it. However, the purpose of the offense – or if you prefer, the interest it protects – is not the protection of national security. In presenting their oral arguments, we allowed the parties to elaborate on their written pleadings on the question of the protective application to the present case.

22.                   In its supplementary pleadings, the Respondent focused on the interest of national security. It argued that any act – performed with an intention to harm national security – sufficed to justify extraterritorial application. The Respondent insisted that the purpose of the protective nexus supported this interpretation. The Respondent also supported its arguments with the fact that charges are often filed in Israeli courts against persons accused of foreign offenses, which according to the circumstances of their commission, were directed against national security. The Appellant, on the other hand, argued that in order for the penal laws of Israel to apply to a foreign offense, the offense must be directed, by its very nature, against national security. Counsel for the Appellant agrees that this does not refer only to those offenses included in the relevant chapter of the Penal Law, titled Offenses Against “National Security, Foreign Relations and Official Secrets” (Chap. 7 of the Penal Law). According to him, it also refers to any offense that, in accordance with its defining elements, is directed against national security, such as an offense under the Prevention of Terrorism Ordinance. However, the offenses of which the Appellant was accused are not such offenses, and his counsel therefore argues that the Israeli courts did not have jurisdiction over the Appellant.

 

The Scope of the Protective Nexus subsequent to Amendment 39

23.                   This Court has noted in the past that “the protective conception – which is what concerns us – may be given limited or wide statutory expression … but it will always be the law that decides” (A. v. State of Israel [2], at p. 525). The legislature’s ability to choose between wide or narrow protective application is consistent with the domestic law approach whereby the legislature is entitled to set the bounds of the law at its discretion, without taking into account constraints of foreign or international law (s. 9(a) of the Penal Law; and see the Rosenstein case [4], at p. 381; Gabriel Hallevy, Theory of Criminal Law, vol. 1 (2009), 446 (Hebrew). The relevant statutory provision in our context is sec. 13(a), and particularly sec 13(a)(1) of the Penal Law, which we will now examine.

Was it the intention of the legislature, in Amendment 39, to create a change in the situation that pertained prior to the Amendment? After having given this serious consideration, I propose to my colleagues that this question be answered in the negative. The starting point for the discussion is the language of s. 13(a)(1) of the Penal Law in its post-Amendment formulation: “Israel’s penal laws shall apply to foreign offenses against – (1) national security, the State’s foreign relations or its secrets.”  “Foreign offense” is defined negatively: it refers to any offense that is not a domestic offense. In principle, any criminal offense may fit the definition of “foreign offense”. There is nothing in the first part of s. 13(a) that defines the scope of the protective nexus. The question is whether the word “against” must be interpreted as referring only to offenses which by their nature are directed against national security, such as offenses specified in the relevant chapters of the Penal Law and the Prevention of Terrorism Ordinance. In my opinion, the interpretation according to which the protective nexus remains applicable to all acts which by virtue of their circumstances are directed against national security is to be preferred.

The basis for this determination, as will be explained, is the interpretation of s. 13(a) in accordance with its purpose. Section 34U of the Penal Law states:

34U. If an enactment can be reasonably interpreted in several ways in respect of its purpose, then the matter shall be decided according to the interpretation that is most favorable for whoever is to bear criminal liability under that enactment.

Interpretation of the law in the criminal sphere is also purposive interpretation, in the framework of which one must examine the language of the law, as well as the goals and interests that the law is intended to realize (CFH 1558/03 State of Israel v. Assad [5], 557). An interpretation of the language of the law that is favorable to the accused may nevertheless be rejected if it fails to optimally realize the purpose of the law. This Court considered this point recently in CrimA 8831/08 State of Israel v. Alshahra [6]:

Among several possibilities that realize the statutory purpose, the one to be chosen is that which realizes it in the fullest way, in both its subjective and objective purpose (Aharon Barak Purposive Interpretation in Law (2003) (Hebrew) 133-135 (hereinafter: Barak, Purposive Interpretation). Only where there remain several possible interpretations of the norm according to its statutory purpose, is the interpretation most favorable to the accused is to be preferred (CrimA 8831/08 State of Israel v. Alshahra [6], per Justice Y. Amit at para. 20).

Thus, the interpretation that most fully realizes the statutory purpose underlying s. 13 of the Penal Law is to be selected. Only in the event that the two possible interpretations comply with this requirement does s. 34U direct us to select that which is most favorable to the Appellant (see also: Aharon Barak, On the Interpretation of a Penal Provision, (2002) 17 Mehkerei Mishpat, 347 (Hebrew)).

24.       The statutory provisions regarding extraterritorial application by virtue of the protective nexus, as formulated prior to Amendment 39, applied the domestic law to every act that harmed or was intended to harm “the State” or important interests such as the economy of Israel and its security. The present formulation restricts the application of the law by virtue of the protective nexus to offenses that are directed against certain interests, and it no longer allows for the application of the law to “any” harm to the “state”. At the same time, I propose to my colleagues we should hold that despite the textual change, Amendment 39 did not reduce the scope of the protective nexus. Israel’s criminal laws continue to apply to a person who perpetrates an act which, according to its circumstances, harmed or was intended to harm the security of the state, as was the situation that pertained prior to the Amendment.

From the Explanatory Notes to Amendment 39 it emerges that the scope of protection of those vital interests was not reduced. The Explanatory Notes are “silent” on the change of wording in relation to the protective nexus – a change which we discussed above. In my view, this “silence” is significant. It indicates a lack of intention to create a “revolution”, other than a change in wording. Furthermore: the general attitude of the Explanatory Notes to the scope of the protective nexus manifests a desire to expand this scope from a substantive point of view in certain areas, and there is no mention of any intention to restrict it. Thus, regarding the proposed statutory change in the extraterritorial applicability, the Explanatory Notes to Amendment 39 noted that:

The main changes in the bill are a clear-cut separation between the different types of application, and particularly, eradication of any aspects of protective application from universal application and personal-passive application; expansion from a substantive perspective of the protective application and of the personal-active application” (S.Z. Feller and M. Kremnitzer, Criminal Code Bill – Preliminary and General Parts (Text and Brief Commentary), 14 Mishpatim (1984) 128, 201-202 (Hebrew) (hereinafter: Feller and Kremnitzer) (emphasis added – M.N.).

The Explanatory Notes also mentioned that the rationale behind nullifying the particular offenses specified in s. 5(b) was the desire to avoid a closed list of offenses that have extraterritorial applicability due to the protective nexus, as it may suffer from omissions:

In order to avoid casuistic specification which is liable to be incomplete, such as that found in s. 5(b) of the Penal Law [prior to Amendment 39], what is proposed is the general formulation of an offense of likely harm to the proper operation of the state authorities (s. 13(a)(3)) (ibid., at p. 202) (emphasis added – M.N.).

Another major change in the new Law was, as stated, the expansion of the protective nexus to foreign offenses against Israelis or Jews, wherever they may be (this expansion has been  criticized: Yoram Shachar, In Condemnation of the National Application of Criminal Law,  5(1) Plilim (1996) (Hebrew); for a different view, see: S.Z. Feller and Mordechai Kremnitzer, Reply to the Article ‘In Condemnation of the National Application of Criminal Law ’ by Y. Shachar, 5 Plilim (1996), pp. 65, 73 (Hebrew) (hereinafter: Feller and Kremnitzer – Reply)).

The intention was, therefore, to expand and not to constrict the protective nexus from a substantive point of view, vis-à-vis the situation prior to the Amendment. Thus, as we have said, the list of specific offenses to which Israeli criminal law applied by virtue of the protective nexus was revoked, and the protective nexus was expanded to apply also to foreign offenses against Jews and Israelis. The position whereby the new legislative provisions expand the protective nexus finds expression in the literature as well (see Y. Kedmi, On Criminal Law, vol. 1 (2004), at p. 30 (Hebrew): “The new provision [s. 13 of the Penal Law] adopts a general formulation and avoids going into details that are liable to be found incomplete. The former provisions of the Penal Law – particularly the provisions of what was then s. 5 – should not be viewed as defining the borders”).

25.                   Moreover, s.13(a)(3) of the Penal Law deals, as stated, with foreign offenses against the “proper operation of state authorities”. As will be recalled, the Explanatory Notes to Amendment 39 mentioned that this general section was added to the protective nexus in order to break out of the bounds of the list of specific offenses that were once anchored in s. 5(b) of the Penal Law. Furthermore, the general nature of this interest, to which no specific chapter had been devoted in the Penal Law (such as chap. 7 dealing with security offenses) attests to the fact that the intention of the legislature was not to restrict it only to concrete offenses. In addition, s.13(a)(5) of the Penal Law treats of foreign offenses against rights, property or the orderly functioning of certain national institutions. Here, too, it is difficult to pinpoint offenses that are intrinsically directed against the proper functioning of those specific institutions. In other words, other interests that are anchored in s.13(a) are not confined to offenses that are intrinsically directed against them. In the same way, it cannot be said that foreign offenses against security are only those statutory provisions whose purpose is the protection of this interest.

26.                   The purpose of the protective nexus, particularly in the context of national security, lends support to the conclusion that the protective nexus is not confined to offenses that are intrinsically harmful to national security. The purpose of this nexus is, as stated, a response to the need of the state to protect itself from deeds that are perpetrated outside its borders and that are directed against vital interests that go to the very root of the existence of the state (see: A. v. State of Israel [2], at 521, and see Ian Brownlie, Principles of Public International Law,(7^th ed., 2008) 304-305). Regarding the purpose of the protective nexus, the Explanatory Notes to Amendment 39 note:

Section 13 treats of protective application that is based on a special nexus of the type of offense to the State, when the offense is likely to endanger the political, security and economic foundations      of the state, its standing and the orderly functioning of its institutions (Feller and Kremnitzer, at p. 202).

27.       The question of the scope of the protective nexus subsequent to the legislative change introduced by Amendment 39 was considered by this Court in the Alshahra case [6]. There, at issue was the interpretation of s. 13(a)(4) of the Penal Code, which states:             “Israel’s penal laws shall apply to foreign offenses against State property, its economy and its transportation and communication links with other countries.” In the above case, two residents of the Territories were accused of dismantling stolen cars, forgery and dealing in stolen vehicles. The offenses attributed to them were all committed in Area A, under the control of the Palestinian Authority, and they were therefore considered foreign offenses. This Court considered the question of whether these offenses fall within the bounds of s.13(a)(4) of the said Penal Law, and held that Israeli law does not apply to the foreign offenses attributed to the accused. It was held there that it is not sufficient that the offense causes harm to the property of individuals in order for the protective nexus to arise. Even the fact that car theft constitutes a “national plague” is not enough to expand the application of the law. It was further held that the offense must be one that is directed against a protected value related to the economic infrastructure of the state. As an example, the Court cited the offenses of forgery of currency, or harm to goods that constitute part of an important export branch.

The Appellant in our case argued that the said rulings indicate that Israeli law applies only to those foreign offenses that are intrinsically directed against the state, and that an analogy should be drawn from that interpretation to our case. However, the Alshahra case [6] also noted that the accumulation of offenses of car theft and dealing in stolen parts perpetrated by an individual entity can result in an argument that offenses against the national economy are at stake (para. 29). From this it transpires that the Court did not interpret the section as applying only to offenses intrinsically harmful to the national economy. The Court was prepared to apply the protective nexus to offenses of theft and trade in stolen parts, which are not intrinsically directed against the interest of the national economy, if, under the circumstances, the accumulation of car thefts and trade in stolen car parts by the individual indicate harm to the national economy.

28.                   We would note that the trial courts have held that the provisions of s.13(a) of the Penal Law are not confined to certain statutory provisions, and that protective application extends to a range of matters that may harm protected national values (see the decision of the Beer Sheba District Court – CrimC (Beer Sheba) 8179/07 State of Israel v El Najar [31]: in the main proceedings, the accused confessed to the alleged offenses, and filed an appeal to this Court, but the appeal turned only on the severity of the sentence – CrimA 9428/08 El Najar v. State of Israel [7]; and see: MApp 3403/08 (Beer Sheba Magistrates Court) State of Israel v. Harzallah [32]).

29.              The function of the protective principle is to protect important interests from various threats. Clearly, there are some deeds which, by virtue of their circumstances, present a real threat to the security of the State of Israel, even if they do not constitute “pure” security offenses like s. 111 of the Penal Law that prohibits the delivery of information to the enemy. Thus, for example, a person’s acts that constitute a link in the terrorism chain, whether they be the funding of the activities of a terrorist organization or the smuggling of weapons to that organization, constitute a concrete threat to security. In the past, people were tried in Israel for foreign offenses where the circumstances of their commission indicated a threat to security, such as weapons offenses (for digging tunnels in the Gaza Strip that were intended for the smuggling of weapons from Egypt to the Strip), offenses of prohibited military exercises or the funding of the activity of terrorist organizations (see e.g.: CrimA 3827/06 A. v. State of Israel [8]; CrimA 6328/09 El Najar v. State of Israel [9] (hereinafter: the El Najar case); CrimApp 1600/06 A. v. State of Israel [10]; CrimA 6491/08 Bradville v. State of Israel [11]). Admittedly, the protective principle is limited to the offenses that endanger one of the interests specified in s.13(a) of the Penal Law (see Feller, at p. 275). However, this does not mean that the scope of the principle is limited only to specific statutes. Within the bounds of the protective nexus it is possible to include acts that, of course, constitute offenses that by their circumstances constitute a threat to a particular vital interest that the law seeks to protect, no matter where the act was committed.

30.                   The protective principle is especially important in modern times, in which the commission of crimes unbounded by territorial constraints is easier and more possible than ever, and there is a real need for prevention. Moreover, today, the interest in bringing the offenders to justice, and the interest in preventing them from using states as havens, are interests common to all states, and therefore, there is a discernable trend to extend the scope of application of domestic law to acts perpetrated beyond the state borders (Feller and Kremnitzer – Reply, at p. 73). This is certainly so in the case of terrorist activity. The State of Israel is often threatened by terrorist elements, and stands at the forefront of the struggle against terror. This struggle demands confronting every link in the chain of terrorist acts, whether within the borders of the State of Israel or beyond them. This Court has addressed this in the context of the smuggling of weapons that are liable to end up in the hands of terrorist elements, noting that –

No great expertise is required to understand that the uninterrupted supply of weapons and ammunition contributes to the persistence of the wave of violence and terror. The channels for smuggling ammunition and weapons constitute an artery that feeds the terrorist activity and they are, therefore, an integral part of it. It is patently obvious that the gravity, the risk and the abhorrence associated with acts of terror themselves also impact on the punishment of those who are involved in the early – but vital – stages of the chain of terror (CrimA 4043/05 State of Israel v. Bniat [12], per Justice A. Grunis, at para. 8; see also CrimA 2985/10 Hamed v. State of Israel [13], my opinion, at para. 10).

The protective principle, when it is not restricted to a closed, specific list of offenses, allows for effective, focused action against those links in the chain of terror whose operational base is often to be found outside the territory of the State of Israel. The purpose of the Law, therefore, is best realized when the scope of the protective application is not confined to a list of specific offences that are intrinsically directed against national security.

31.              What emerges from the above is that the protective nexus is confined to the protection of certain fundamental national interests, but not exclusively to offenses that are intrinsically prejudicial to those interests. Extraterritorial jurisdiction may also apply to acts – constituting offenses – whose circumstances indicate that they present a serious risk to these interests, or that there is an intention to harm them (for a position in the academic literature supporting the application of Israeli law to acts that were perpetrated with the intention of harming national security see: Yoram Dinstein, The Amendment to the Foreign Offenses Law, 2 Iyunei Mishpat (1973), 829, 836 (Hebrew)) . This, in my opinion, is the interpretation that best realizes the purpose of the legislation subsequent to Amendment 39, as well. A different interpretation, such as that proposed by the Appellant, does not permit effective confrontation of the chain of terrorist links, the operation of which presents a great danger to national security. As such, it does not constitute a reasonable interpretation, and does not fulfill the purpose of the legislation.

32.                   Concern about the “imperialist” application of Israeli penal law, as claimed by the Appellant, is unwarranted. The fact that the state is authorized to apply its laws to foreign offenses does not mean that the authorities of that state are permitted to operate in the territory of a foreign sovereign in order to enforce those laws (see Feller and Kremnitzer – Response, at p. 67; and see: Monika B. Krizek, The Protective Principle of Extraterritorial Jurisdiction: A Brief History and an Application of the Principle to Espionage as an Illustration of Current United States Practice, 6 B.U. Int’l L.J. (1988), 337, 357). Moreover, prosecution for foreign offenses is subject to special oversight. A person may not be tried for a foreign offense other than by the Attorney General or with his written approval (s. 9(b) of the Penal Law). This supervision allays the concern about the application of domestic law to cases that do not justify such action.

 

Comparative Law

33.                   Extraterritorial application by virtue of the protective nexus is accepted, as stated above, in most legal systems. As a matter of principle, international law does not restrict the scope of the protective nexus, and each state may define its limits (S.S. Lotus (France v. Turkey) [33]; S.Z. Feller, Criminal Jurisdiction: Borders and Restrictions, 2 Iyunei Mishpat (1973), 582 (Hebrew)). At the same time, one must be careful not to abuse this nexus when it oversteps its purpose, i.e. the protection of basic, fundamental interests (Malcolm N Shaw, International Law (6^th ed., 2008) 666-667). The interest of security is, in any case, recognized as an interest worthy of protection.

The modes of implementation of the protective nexus in different legal systems are varied. Thus, there are legal systems in which the protective nexus is confined to a list of specific statutes (§5 stGB (Germany)); some legal systems apply domestic law to some offenses that are specific but formulated broadly (the French penal law applies the protective principle, for example, to the offense of destruction of a document, equipment, a structure, etc., where this poses a threat to the essential interests of the state, including national security (Code Penal [C.Pen.] art L. 411-9 (Fr.)). There are also systems of law that choose to apply domestic law to acts at a certain level of severity committed beyond their borders, when these acts harm important interests (Estonian Criminal Code §9).

In the United States, the protective principle, as justifying extraterritorial application, is recognized in the framework of Restatement (Third) of the Foreign Relations Law of the United States §402(1)(1987), which states that domestic law may have extraterritorial application to particular conduct by foreigners, outside the territory, that is directed against national security or against certain other national interests. This is subject to the application of the law being reasonable (§403), and provided that it is possible to identify an express or implied intention of the legislature to the effect that the particular statute should apply extraterritorially, on condition that this is consistent with the right to due process (United States v. Yousef [34]; United States v. Bowman [35]). Extension of the application of the law should ideally comport with international law, but this is not essential (United Sates v. Pinto-Mejia, 720 F.2d 248, 259 (2^nd Cir. 1983) [36]; the Rosenstein case [4], at p. 382). In various decisions in the United States, extraterritorial application of the law was justified by virtue of the protective nexus, primarily in regard to drug-related offenses or offenses against representatives of the authorities dealing with narcotics, and various offenses directed against governmental authorities (United States v. Chua Han Mow [37]; United States v. Schmucker-Bula [38]; United States v. Felix-Gutierrez [39]).

Recently, application of the law has been extended to offenses that constitute support for terror or terrorist organizations, even if they were committed by foreigners beyond the borders of the state. This extension was justified, inter alia, on the basis of the protective principle and on the basis of the right of the state to protect itself against acts that endanger its security (see United States v. Yousef [33]; Alexander J. Urbelis, Rethinking Extraterritorial Prosecution in the War on Terror: Examining the Unintentional yet Foreseeable Consequences of Extraterritorially Criminalizing the Provision of Material Support to Terrorists and Foreign Terrorist Organizations, 22 Conn J, Int’l L. 313, 321 (2007)).

The scope of protective application, therefore, differs from one legal system to another, and over the years, it has also been altered by legislation, in view of the changing needs of the times, such as the extension introduced in the United States. The scope of the protective principle, insofar as national security is concerned, is flexible, in accordance with concrete national requirements. A state is entitled to define the scope of protective application for itself. I do not believe that the change in the wording of the Law in the framework of Amendment 39 was intended to cause a revolution and a constriction.

 

From the General to the Specific

34.                   The Appellant traded in weapons and conspired with operatives of a terrorist organization whose aim was to harm Israel’s security. These acts posed a great danger to the security of the State of Israel. The Appellant traded in weapons with Popular Front operatives on a large scale, the weapons that were delivered were suitable for hostile terrorist activity, and the trade was conducted in the early days of the second Intifada. One of the ISA investigators even testified that the weapons supplied by the Appellant to the Popular Front were destined for purposes of hostile terrorist activity against Israel (pp. 85-86 of the transcript). Even if these were not offenses that intrinsically endanger national security, nevertheless, by virtue of their circumstances, the offenses materially endangered the security of the State of Israel and its inhabitants. The District Court ruled that the Appellant knew with near certainty that the weapons that he delivered were intended for use against the State of Israel. I see no reason to intervene in this conclusion. The Appellant was very familiar with the activities of the Popular Front. In the past, he was a member of the organization, and even headed one of its cells. In addition, in the past, he participated in military exercises of the Popular Front, and studied abroad with funding from the Front (Memo P/9). From these findings it emerges that the Appellant was aware with near certainty that the weapons were intended to harm the security of the state. This knowledge – with its practical repercussions for national security – overshadows the economic motive for the acts, and is equivalent to an intention to harm security (see and compare: CrimA 172/88 Vanunu v. State of Israel [14] at p.  295-297; LCrimA 9818/01 Biton v. Sultan [15]). Hence, there is no bar to the application of Israeli law to the Appellant by virtue of the protective nexus.

35.                   The Appellant’s knowledge that his acts posed a great danger to Israel’s security has ramifications for the question of the right to due process. In Rosenstein v. State of Israel [4], the Court considered the question of whether the extension of the application of Israeli law to a person who normally would not be subject to it involves a breach of the person’s right to due process. The Court considered the matter in terms of both principle and practice (at pp. 390-392). Referring to US law, it was noted that, in principle, a person whose acts are known to have repercussions within the borders of a foreign country exposes himself to prosecution under that country’s laws, and his contention that his right to due process was violated will not be heard. This is the case in the present matter. The Appellant knew, as we have said, with a high level of certainty that his acts would entail harm to Israel’s security and he can only blame himself for the fact that Israel now seeks to prosecute him according to its laws. The practical aspect involves the question of whether expansion of the application makes it difficult for the Appellant to plead his case, to bring witnesses etc. Such arguments cannot be raised in the abstract – concrete obstacles must be identified. The Appellant did not do so.

36.                   Thus, the Appellant carried out acts that presented a real danger to the security of the State of Israel. He knew, with near certainty, that the weaponry in which he was dealing would be used to harm Israel. This knowledge is equivalent to intention. The offenses of weapons dealing and conspiracy that are ascribed to the Appellant, which constitute foreign offenses, are admittedly not intrinsically directed against national security. However, the finding that the circumstances of the acts substantiating these offenses create a threat to security, is sufficient to determine that the relevant penal provisions apply extraterritorially to the Appellant.

 

Double Criminality and Specific Nexus between the Offense and the State

37.                   The Appellant argued that s. 144(b2) of the Penal Law, under which he was charged, applies only to the territory in which the act was perpetrated, since the actus reus of this section includes a requirement that trading in weapons be carried out “without lawful permission”. His contention is that application of this penal provision extraterritorially is unreasonable, for it would mean the criminalization of all arms trade carried on outside of the state if done without the permission of the authorities in Israel, even if it was in no way prohibited under the laws of the place in which it was executed. He also argued, as will be recalled, that for the purpose of a conviction of the offense of conspiracy to commit an offense outside of Israel, the criminality of the substantive offense under the laws of the place in which it was carried out must be proven. I will discuss these arguments in the order presented.

The penal provisions under which the Appellant was charged apply, as stated, by virtue of the protective nexus. Therefore, the question of whether his acts are punishable in the territory in which they were perpetrated is immaterial. The protective nexus prevails, and the foreign law does not restrict its scope. This means that for the purpose of extraterritorial application by virtue of the protective nexus, there is no requirement of double criminality (see: s. 9(a) of the Penal law; Feller, at p. 278; CrimA 163/82 David v. State of Israel [16], at p. 647 (hereinafter: the David case)).

The significance of the absence of double criminality is that the act or omission that occurred outside the borders of the state is liable to incur criminal liability in Israel even if it does not constitute an offense in the place in which it took place (the David case [16], para. 35, at p. 647). The Court reiterated this in the Alshahra case [6], where it considered the far-reaching implications, from the point of view of the accused, of extending the application of the penal laws beyond territorial borders, and their application to acts committed outside the territory of the state by virtue of the protective nexus. It was pointed out there, in reliance on the said section of the David case, that extension of territorial application requires great caution, inter alia because the act or omission might not in any way constitute an offense outside of Israel (the Alshahra case [6], para. 25). In the present case, the harm, anticipated with a high degree of probability, to the security of the state constitutes a connecting link, a type of “normative bridge” connecting the event that occurred outside the borders of the state to the penal law of the State of Israel (see the Oiku case [3], at pp. 38-39; following the abovementioned case of A. v. State of Israel [2]; the Rosenstein case [4]). We therefore determined that the element of harm to national security was present. We must now “transport” that entire event over that normative bridge into the territory of Israel, and examine whether the act would have constituted an offense if committed in Israel. In the Oiku case [3], the petitioner was tried in Israel for exporting drugs from Holland to various countries. The petitioner argued that he could not be tried for an export offense since the export of drugs that was prohibited under the Drugs Ordinance was the export of drugs from Israel, whereas in his case the drugs were exported from Holland. This Court dismissed that argument and ruled, on the basis of the universal interest in stopping the drug trade, that the extraterritorial principle should be applied to the petitioner’s case by way of “reconversion” or “hypothetical criminality”. As elucidated in the Oiku case [3], adopting such a technique is not justified in every case, but only in those cases in which the purpose of the legislation that extended the application of Israeli law beyond the borders of the state provides justification for doing so, and in cases in which the offense for which conviction is sought involves protected social interests that are not local in nature (the Oiku case [3], end of para. 14, pp. 46-47, 49). The weapons offenses of which the Appellant was accused are not of a local nature. They were designed to preserve public order. Admittedly, in our case, we do not know whether trading in weapons or the transfer of weapons from one person to another for no consideration did or did not require a permit in the Gaza Strip at the relevant time. This, however, is immaterial. Once we found that it was highly probable that harm would be caused to the interest of national security as a result of the trade in which the Appellant engaged, the fact that the particular act was permitted in the Gaza Strip, or permitted when accompanied by a permit, is irrelevant, because Israel’s societal interest in protecting national security is in any case harmed – whether the Appellant had a permit for the trade from the authorized body in the Gaza Strip or whether no such permit was necessary. In my opinion, we must therefore say simply that trade in weapons in the Gaza Strip (or elsewhere), in the knowledge that there is a high degree of probability that this will be injurious to the security of the State of Israel constitutes, in Israel, an offense under s. 144(b2) of the Penal Law. As opposed to this, offenses involving trade in weapons in foreign states, when they will have no impact on the State of Israel, will not be considered foreign offenses in Israel, and the concern of counsel for the Appellant that all weapons offenses worldwide will be caught in the net of foreign offenses is unwarranted.

The Appellant’s argument concerning the offense of conspiracy must be dismissed as well. As will be recalled, the offense of conspiracy to commit a felony is prescribed in s. 499(a)(1) of the Penal Law, as follows:

                                  499. (a)              If a person conspires with another to commit a felony or misdemeanor, or to commit an act in a place abroad which would be a felony or misdemeanor if it had been committed in Israel – and which also is an offense under the laws of that place, then he is liable –

(1)     if the offense is a felony, to seven years imprisonment or to the punishment prescribed for that offense, whichever is the lighter punishment; [emphasis added – M.N.]

The offense that is the object of the conspiracy attributed to the Appellant was committed, as will be recalled, outside of Israel. The Appellant argued that according to the last part of s. 499(a)(1), incrimination for a conspiracy whose purpose was the commission of a crime outside of Israel is possible only if the offense that is the object of the conspiracy constitutes a criminal act under the laws of the place where it was committed. In other words, there must be double criminality. The Appellant argues that in our case, because the offense that was the object of the conspiracy was committed outside of Israel, a conviction for conspiracy to commit that offense is only possible if the elements necessary for criminal liability are present in the place of commission. We cannot accept this interpretation. The last part of s. 499(a)(1) extends the territorial application and prescribes that a conspiracy that was formed within the borders of the state is punishable even if the offense that is the object of the conspiracy was to be committed outside of Israel (and see Feller, at p. 259). In the case before us, the locus of both the conspiracy and the offense that is the object of the conspiracy is outside the state. The offense of conspiracy and the offense that was the object of the conspiracy are foreign offenses to which the regular laws concerning applicability apply. In other words, double criminality is not required as a condition for conviction of the offense of conspiracy.

We should, however, clarify that domestic law does not apply extraterritorially to the offense of conspiracy simply because we found that it applies to the offense that is the object of the conspiracy. It is necessary to determine whether domestic law applies independently to the offense of conspiracy, under the regular laws governing extraterritorial application. Indeed, prior to Amendment 39, the Penal Law stated that if domestic law applied to the offense that was the object of the conspiracy, then it also applied automatically to conspiracy to commit that offense. However, this provision was repealed in the framework of Amendment 39 (see Feller and Kremnitzer, at p. 201). In any case, in the present matter the offense of conspiracy to deal in weapons, like the offense of trade in weapons itself, was committed in circumstances which, as the Appellant knew, posed a danger to national security with a high degree of probability. Therefore, domestic law applies independently to the offense of conspiracy by virtue of s. 13(a)(1) of the Penal Law.

Moreover, even if I were to conclude that the conviction for the offense of conspiracy should be set aside, this would not affect the Appellant’s sentence, for the court does not impose additional punishment – where the substantive offense has been proven – for the conspiracy that preceded the offense (see e.g. CrimA 9995/05 State of Israel v. Rabinowitz [17], per Justice E.E. Levy, at para. 9, and the references there).

This concludes the discussion of the question of jurisdiction. I shall now move on to the question of the admissibility of the Appellant’s confession and its weight.

 

Admissibility of the Appellant’s Confession and its Weight

38.                   The Appellant presented detailed arguments relating to the admissibility of the confession P/4 and to its weight. In effect, however, most of his arguments amount to an application to intervene in the trial court’s factual findings and its determinations concerning credibility. As a matter of principle, an appellate court will be reluctant to intervene in findings of fact and the credibility of witnesses, and in the present case I see no justification for deviating from this principle. Concerning the confession and its admissibility, the Appellant argued, as stated, that his confession was made following the application of improper techniques in the course of the interrogation. However, in his testimony, the Appellant argued that he did not say any of that which was attributed to him in P/4. He also claims that what appears in the memoranda of his various interrogations, including memorandum P/9 that describes the Appellant’s involvement in weapons trade with the Popular Front (as described above), is not true. The Appellant testified that “I in no way thought, even when I was forced to sign, that I was signing on any kind of confession” (p. 41 of the trial transcript). According to the Appellant, despite the pressure applied in the interrogation, he refused to give any incriminating information, and in his words in his testimony, “I am not prepared, even if I should be murdered, to say things that are not correct, and what was correct I wrote” (p. 133 of the transcript). Indeed, as noted in the opinion of the District Court, here we have contradictory arguments on the factual plane, which weaken the Appellant’s contention that his confession was made under coercion (see and compare: CrimA 6613/99 Semirak v. State of Israel [18], at p. 544 (hereinafter: the Semirak case)).

39.       In his appeal, the Appellant insists that it was the improper means of interrogation that led to the confession in P/4. It was argued that the findings of the District Court – that the interrogations of the Appellant were drawn out and harsh, he was permitted only few hours of rest and sleep, and sometimes he did not know when the interrogations were going to end – attest to the use of improper methods of interrogation. He also adds that he was handcuffed until he bled, and that food was withheld. These improper means of interrogation justify, so he contends, the voiding of the confession and at least, a significant lessening of its weight. These arguments, too, must be dismissed.

The District Court found – and I find no reason to interfere in these findings – that prior to making the statement in P/4, no improper methods were employed in the Appellant’s interrogation. The interrogation methods described in the judgment of the District Court, such as the Appellant not knowing when the interrogation would end, refer to the whole duration of the Appellant’s interrogations, which, as will be recalled, continued until the middle of August, 2006. The Appellant, however, challenges the admissibility of his statement P/4, which was recorded on the first day of his arrest. In examining the admissibility of this statement and its weight, therefore, the District Court was correct in considering the interrogation methods that were employed up until the time that this statement was made. In this context, the District Court found, relying on the testimony of the interrogators, on the one hand, and on its impression of the Appellant’s testimony on the other, that in the course of the ISA interrogation that preceded the transcription of statement P/4 and during its transcription, no improper methods of interrogation were used on the Appellant. There is no justification for interfering in these findings. As stated by the ISA interrogators, whose testimonies were consistent and detailed, the atmosphere in the interrogation to which memorandum P/9 relates was good, and during that session the Appellant drank coffee and smoked cigarettes. The interrogation did indeed continue for 9 hours, but this was necessary for the purposes of the interrogation, and it cannot be said that this affected the Appellant’s ability to insist on his innocence. Memorandum P/9 reflects what went on in the interrogation. The memorandum is detailed, and contains a record of the time of the interrogation and its duration. Furthermore, in the appendix to memorandum P/9, which the Appellant signed, there is a statement that the Appellant was informed of his right to remain silent in the interrogation. In these circumstances, what is recorded in the memorandum may be relied upon as support for the testimonies of the interrogators (see the Semirak case[18], at p. 548.

The District Court was also convinced of the reliability of the testimony of the police interrogator Harladin, who took down statement P/4 (and was the only one present when it was taken down), to the effect that the Appellant was alert at the time of the interrogation, and that he was not forced to sign the statement. The Appellant’s testimony, on the other hand, contained contradictions and inaccuracies. Thus, for example, the Appellant claimed in his testimony that he complained to the judge in the arrest hearing about the way he was being treated by his interrogators. However, as noted in the decision, no mention is made of this in the transcript of the hearing on the application to extend the arrest. The Appellant further argued that his statement P/5 is a faithful representation of what happened. In his testimony, however, he added details that did not appear in the original. Neither did I find any cause for intervening in the determination that the police investigation in which the statement was taken down was separate from the ISA interrogation, and that P/4 is not a “reproduction” of P/9. The police interrogation took place three hours after the completion of the ISA interrogation, in the course of which there was no further interrogation; the Appellant was cautioned in Arabic; the police investigator introduced himself as a policeman; between P/4 and P/9 there are differences, the most material of which is that in P/4 the Appellant denied his participation in an attempt to launch a rocket, whereas P/9 records that he confirmed that he had participated in the attempt. These circumstances attest to the existence of the required separation between the ISA interrogation and the police interrogation (see and compare: the Semirak case [18], at pp. 550-551).

40.       The Appellant also argued that the fact that the statement was transcribed in the Hebrew language, rather than in the language in which it was spoken – Arabic – negates its admissibility, or at least reduces its weight.

Section 8 of the Criminal Procedure (Interrogation of Suspects) Law, 5762- 2002 states that if the suspect’s interrogation at the police station was recorded in writing, this record shall be in the language in which the interrogation was conducted, and if it is not possible to record the interrogation in the language in which it was conducted, a visual or audio record should be made. In our case, this requirement was not fulfilled. In an ordinary case, such a defect might have significantly reduced the weight of the confession, and it is even possible that it would have affected its very admissibility. However, in certain circumstances, the weight of the statement may be judged on its substance in order to decide whether the record departs from the truth (see: CrimA 2285/05 State of Israel v. Hemed [19], per Justice E.E. Levy at  para. 4; CrimA 3687/07 Tochly v. State of Israel [20], per Justice S. Joubran, at  para. 12; and cf. CrimA 2180/02 Kassem v. State of Israel [21]).  In this case, it cannot be said that the recording of the statement in Hebrew affects its weight in a material way. The police interrogator who took the testimony speaks Arabic fluently, and he testified that he made a simultaneous translation of everything that the Appellant said. Furthermore, after the statement was transcribed, he translated it for the Appellant, who then signed it. The statement in question is detailed, and its contents are similar – although not identical – to what the Appellant said in the ISA interrogation, which was documented in memorandum P/9. The Appellant, on his part, insisted in his testimony that he did not tell his interrogators anything, and that he did not know what was written in the statement. Consequently, he did not raise specific arguments relating to distortions that resulted from the manner in which the statement was recorded. In the above-mentioned Semirak case [18], too, the circumstances of which were similar, it was ruled that the weight of the statement was not affected (at p. 552). Also, the statement found support in the statements of Shafik al-Brim and Emad Hassin. In his appeal, the Appellant did not argue against the admissibility of those statements or against their contents. In these circumstances, despite the defect in the recording of the statement, there is no basis for doubting the reliability of the translation. Thus, the defect does not materially reduce the weight of the statement. As for P/5 – I accept the ruling of the District Court that what is described in P/5 adds to what is stated in P/4 and does not contradict it. In light of this, the Appellant’s arguments must be dismissed insofar as they relate to the admissibility of his confession and its weight.

 

The Punishment

41.       The Appellant delivered weapons, on a large scale, directly into the hands of a terrorist organization whose aim is to harm the State of Israel. The Appellant even participated in a test of the explosive material conducted by the members of the organization. In view of the type of arms that were delivered and the scale of the operation on the one hand, and the danger this posed to the State of Israel and its population on the other, the acts of the Appellant are very grave. This Court has already said that the heinous nature of the acts of terror themselves projects onto the grievousness of the acts of those who participate in the chain of terror at any of its stages. This Court has set a policy of harsh, deterrent sentencing for those who participate in the chain of terror, as stated in CrimA 3944/08 Sha’aban v. State of Israel [22] per Justice Y. Danziger, at  para. 7):

This Court has often emphasized the need to impose deterrent, appropriate sentences in respect of each and every link in the chain of terror … (CrimA 1358/09 Dahar v. State of Israel [23]).

Furthermore:

The State of Israel’s battle against murderous terror is not only a battle against the perpetrators and those who dispatch them, but against all those who, in some form or another, “grease the wheels” of the machinery of terror, and against every person who constitutes a part of this “chain of death”. Every single level of activity of the terrorist organizations requires an appropriate legal response in the framework of the war on terror … (CrimA 4352/08 A. v. State of Israel [24]).

It is immaterial if the acts were perpetrated with the intention of harming national security or if the motive was financial profit (see the Hamed case [13], at para. 10).  In any case, in the present matter the Appellant knew with near certainty that the weapons that he was delivering to the Popular Front would be used in the organization’s activity against Israel – this knowledge being equivalent to intention – and the profit motive in his actions enhanced his support for the organization and its aims. In addition, in the past the Appellant had been an active member of the Popular Front. These circumstances exacerbate the severity of the deeds. The absence of proof that the weapons were actually used in activity against the State of Israel is also immaterial (see and compare: the El Najar case [9]).  The sentence imposed by the District Court is detailed and reasoned, and it is evident that appropriate weight was given to the various considerations, including the Appellant’s personal situation, and the fact that his criminal activity continued for a relatively short period of time. The sentence that was imposed comports with the severity of the deeds, and there is no justification for intervening here.

The Appellant submitted medical documents concerning the medical situation of his wife, who is suffering from a serious illness and is being treated in the Sheba Hospital. The Respondent, on its part, argued that the documents show that the Appellant’s wife was released from hospital on Nov. 16, 2009, and that by then she had received the appropriate treatment and her life was not in danger. In view of this, said the Respondent, the medical situation of the Appellant’s wife cannot change the picture in relation to the overall considerations for punishment or justify intervention in the sentence. The Appellant argued, in response, that his wife’s health remained precarious, and that she is receiving treatment in a hospital in the Gaza Strip. He attached a medical document dated April 24, 2011 in support of this argument. Even if the wife’s situation remains difficult, the document attached by the Appellant is illegible, and its contents were not specified in the Appellant’s notice. The Appellant’s response does not show that his wife is hospitalized or that she requires assistance on a daily basis. There is not enough here to justify intervention in the severity of the sentence, which in general will occur only in those cases in which the trial court departed radically from the appropriate sentencing policy (see e.g. CrimA 6566/10 Veridat v. State of Israel [25]).

42.                   In conclusion, I recommend that my colleagues dismiss both parts of the appeal.

43.                   The trial in the District Court was held in camera, and the judgment was not reported. The judgment raised questions of principle, and the Respondent is therefore requested to address, within 15 days, the question of whether there is any obstacle to reporting this judgment in whole or with redactions. We will then ask for the response of counsel for the Appellant.

 

Justice E. Arbel

I concur in the comprehensive opinion of my colleague Justice M. Naor.

 

Justice Y. Danziger

1.                     Having examined the comprehensive, learned opinion of my colleague Justice M. Naor, I have decided to concur in her opinion, both with respect to the reasoning and with respect to the outcome. I accept Justice Naor’s conclusion, for the reasons elucidated in her opinion, that Amendment 39 to the Penal Law did not change the normative situation regarding the scope of application of protective jurisdiction vis-à-vis the normative situation that pertained prior to the Amendment. I also agree with Justice Naor’s determination that:

…the protective nexus is confined to the protection of certain fundamental national interests, but not exclusively to offenses that are intrinsically prejudicial to those interests. Extraterritorial jurisdiction may also apply to acts –constituting offenses – whose circumstances indicate that they present a serious risk to these interests, or that there is an intention to harm them [emphasis original – Y.D.] (para. 31 of Justice Naor’s opinion).

2.                     At a time when civilian settlements within the sovereign territory of the State of Israel are subjected to terror attacks from the terrorist organizations, and when missiles and mortar shells rain down on these areas and cause injury to persons and property, the legal system cannot sit idly in the face of an objective need to bring any person who participates, directly or indirectly, in terrorist activity directed against concentrations of Israeli citizens to justice, and this includes those who supply weapons and ammunition to terrorist organizations.

In practice, international law leaves the job of prosecuting terrorists in the hands of the various states, according to their domestic law (see: Emmanuel Gross, The Struggle of Democracy with the Terror of Suicide Bombers – Is the Free World Equipped with the Moral and Jurisprudential Tools for this Struggle? Dalia Dorner Volume 219, 293 (2009)). Those who are involved in “the terrorist enterprise” in all its forms should be aware that the fact that they are operating outside the sovereign borders of the State of Israel does not grant them immunity from prosecution in the courts of the State of Israel. 

3.                     As for the language in which the Appellant’s statement was recorded, I agree with Justice Naor’s conclusion that despite the defect in the recording of the statement – i.e. that the statement was not recorded in the language in which the interrogation of the Appellant was conducted (Arabic), notwithstanding the provision of s. 8(1) of the Criminal Procedure (Interrogation of Suspects) Law, 2002 (hereinafter: the Interrogation of Suspects Law), nor was there a video or audio recording as required under s. 8(2) of the above Law where “it is not possible to record in writing the interrogation of the witness in the language in which it was conducted ” – in the concrete circumstances of the particular case, we are dealing with an admissible statement to which full weight must be attributed, inasmuch as “the Appellant did not raise specific arguments relating to distortions that resulted from the manner in which the statement was recorded” (para. 40 of Justice Naor’s opinion).

4.                     However, I do believe that a few points warrant mention. As a rule, the case-law directs that notwithstanding the provision of s. 8(1) of the Interrogation of Suspects Law, where the court is convinced that even though the confession was not transcribed in the language in which the suspect was interrogated, it accurately reflects what the suspect said in his interrogation, the confession will be admissible and full weight may be attributed to it (see, for example, the opinion of Justice E.E. Levy in the Hamed case [13] to which Justice Naor referred in para. 40 of her opinion). Frankly, this approach – in my opinion – renders s. 8(1) meaningless, and I believe that it is problematic. In practice, it is the direct continuation of the accepted approach in the case law of this Court prior to the enactment of s. 8 of the Interrogation of Suspects Law (see e.g.: CrimA 5225/03 Habas v. State of Israel [26], at p. 31).

5.                     It therefore appears that there has been no change in the approach of the case law to the matter of the language in which the suspect’s confession was recorded, despite the clear, explicit directive in the Interrogation of Suspects Law. The question arises: Does not the enactment of this Law attest to a change of direction in relation to the appropriate position on the language in which the suspect’s confession was recorded? I am of the opinion that the Interrogation of Suspects Law – which constitutes an additional expression of the trend to enhance the rights of suspects and accused persons as part of the “constitutional revolution” – sought to introduce a substantive change in the normative situation that pertained prior to its enactment. The legislature is deemed not to waste its words, yet, nevertheless, I think that the case law has not given full expression to the change that the legislature sought to bring about in  relation to the manner of recording the confession of a suspect.

6.                     Due to the importance of the confession that the accused made at the time of his questioning by the police, which in many cases can ground the conviction of the accused (see and compare: Dalia Dorner, The Queen of Evidence v. Tarek Nujidat, 49(1) Hapraklit (2006), 7, 8 (Hebrew)), the police must be absolutely meticulous in its recording of the confession so that it reflects as accurately as possible the contents of the statements of the suspect and the manner in which they were made. The only possible way of ensuring this is by complying with the statutory provisions concerning the language in which the confession is recorded, for there is no more efficient and certain means than recording the suspect’s confession in its original language in order to describe what he said to his interrogators. The process of translation of the suspect’s confession into Hebrew is liable, unfortunately, to distort the confession and even to detract from the meaning of what the suspect said, since in every language there are subtleties and expressions that cannot always be accurately translated, but which are sometimes essential for an understanding of the spirit of the suspect’s confession and the process of its delivery. In certain cases, the translation is even liable to cause things to be taken out of context. Owing, inter alia, to these concerns about possible distortions in the suspect’s confession as a result of the translation, the legislature stipulated, in the framework of s. 8(2) of the Interrogation of Suspects Law, that where the written record of the course of the interrogation is not in the language in which the interrogation was conducted, visual and audio recordings will be made of the interrogation, as is the practice today in most Western states, and this is also what emerges from the Explanatory Notes to the Criminal Procedure (Interrogation of Suspects) Bill [H.H. 2928, 5761 54].  

7.                     Moreover, when the contents of the confession are merely translated for the suspect and he signs the document that was written in a language in which he is not fluent, and when the interrogation is not filmed or taped, one cannot know if the translation, which was done by a translator acting for the police, is reliable. The legislature, too, was aware of the possibility that mistakes in the translation of the confession in the course of the police interrogation may not be entirely innocent:

The proposed amendment constitutes an improvement in the protection of the rights of the accused, and prevents or reduces the possibility of errors, misunderstandings or deliberate mistakes, thereby enhancing the ability of the court to clarify the truth of a question that is so central in criminal law [emphasis added – Y.D.].( Explanatory Notes to the Bill). 

In a situation in which the suspect does not understand what is written in the confession but signs it, who will guarantee that the written document contains the exact, complete statement of the suspect? As long as the interrogation is not recorded audio-visually, the translated confession contains the “seeds of disarray”, and this is what motivated the legislature to lay down the rules anchored in ss. 8(1)-8(2) of the Interrogation of Suspects Law. Indeed, the police enjoys a presumption of regularity, and its actions should not be suspect a priori, but after all, the translation was made in the interrogation rooms, and in the absence of an audio-visual record of the course of the interrogation, there is a real difficulty in conducting effective judicial review of the manner in which the interrogation was conducted and with respect to the reliability of its record.

8.                     Where there is no audio-visual record and the confession was not recorded in the suspect’s language, it is not sufficient, in my opinion, that the contents of the confession be translated for the suspect. Rather, the suspect needs to read his confession for himself, in his own language. This reading of the confession by the suspect, when it is written in his language, immediately after it has been made, is of great importance, for it allows for the correction in real time of mistakes that were made in the transcribing of the confession.

9.                     Furthermore, if the accused later contests the translation of his confession to the police, it will be difficult for the court to decide on such a matter. The accused is unable to produce evidence to support his argument, since the evidence concerning the circumstances of the translation of the confession are usually in the exclusive control of the police, and within the knowledge of the interrogators who were in the room during the interrogation. Therefore, in order to prevent an unnecessary factual disagreement, the rule must be scrupulously observed from the outset, thus obviating a complex retroactive factual investigation, in the framework of which the police benefits from an presumption of regularity that upsets the balance of power vis-à-vis the accused, and is ultimately liable to violate his constitutional rights.

10.       For all the above reasons, I am of the opinion that only limited weight should be attributed to the suspect’s signature on the confession that was translated for him. However, I believe that a breach of the provisions of ss. 8(1)-8(2) of the Interrogation of Suspects Law should have real repercussions not only with respect to the weight of a confession, but primarily at the level of admissibility, in view of the ongoing strengthening of the right to a due process at all stages, as expressed in the case-law exclusionary doctrine, and in view of the recognition of due process as a constitutional right (CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [27]).

11.              In CrimA 8974/07 Honchian v State of Israel [28], I emphasized that a breach of the obligation regarding the transcription of a suspect’s confession in the language in which he was interrogated is liable to entail the exclusion of the confession by virtue of the right to a due process:

In this context, it should additionally be noted that this Court has more than once insisted on the importance of the fact that the suspect should understand the substance of the accusations against him and the nature of the interrogation process that is being conducted., On this basis, the case law established that “the obligation to record the confession in the language of the person being interrogated is of great importance, and we take a dim view of the continuing disregard by the police of this Court’s repeated directive that statements must be taken down in the original language (see e.g. the opinion of (then) Justice D. Beinisch in CrimA 1746/00 Barilev v. State of Israel [29], at p. 147 (hereinafted: the Barilev case); and see and compare in this regard, the judgment of this Court in CrimA 3477/09 State of Israel v. Hadad [30], para. 29 of my opinion). The fundamental purpose of this jurisprudential policy is to ensure the maintenance of proper procedure, and it must be scrupulously observed as a guarantee for the discovery of the truth and to ensure human rights and the rights of the suspect being interrogated and the accused. Therefore, in the Barilev case [29], it was determined that in certain circumstances, violation of this provision is likely to lead to the exclusion of the confession of the suspect due to the breach of the right to a due process:

It is clear that in the appropriate case, when the statement that was taken thus gives rise to a suspicion as to its reliability due to it not being recorded in the original language, we will not hesitate to exclude it, and in any case, we may not assign any weight to it. Moreover, if the police continue to disregard its standing orders and directives in this matter, there may be no option, in the appropriate case, other than to give expression to the gravity of this misconduct by excluding the statements. We would add that we are prepared to assume that the police interrogators face a difficult task in conducting investigations involving complainants, witnesses and accused persons who speak different languages and are not fluent in Hebrew.  This is part of our reality. This reality cannot provide an exemption from the need to find solutions that will ensure protection for the accused and due process (the Barilev case [29] , para. 7 of my opinion).

12.              Therefore, the consequences of a breach of the duties imposed on the police regarding the documentation of a suspect’s confession must be examined from the perspective of due process and in light of the rules that were formulated on this matter in the Yissacharov case  [27].  Obviously, every case will be examined on its merits, in light of its circumstances, and in accordance with the discretion of the court. However, the court must consider the fact that the defect in the language of the documentation of the interrogation is not confined to the technical plane, and the consequences for the weight of the confession alone. Rather,  the defect may be material, such that it will affect the very admissibility of the confession.

 

Decided in accordance with the opinion of Justice M. Naor.

 

Given this day, 26 Heshvan, 5772 (Nov. 23, 2011).

 

 

CrimA 746/14

 

 

 

Appellant:                   Yonatan ben Hailu Yamar  

 

                                                v.

 

Respondent:                State of Israel

 

 

The Supreme Court sitting as a Court of Criminal Appeals

Before: Justices H. Melcer, U. Shoham and D. Barak-Erez

 

Israeli Supreme Court cases cited:

[1]        CrimA 2285/09 Alalu v. State of Israel (5.24.2011)

[2]        CrimA 900/11 Atallah v. State of Israel (12.7.2011)

[3]        CrimA 7004/09 A. v. State of Israel (7.17.2012)

[4]        CrimA 7899/13 A. v. State of Israel (6.24.2014)

[5]        CrimA 2480/09 Padlon v. State of Israel (9.7.2011)

[6]        CrimA 420/09 A. v. State of Israel (11.23.2009)

[7]        CrimA 3283/13 A. v. State of Israel (11.12.2014)

[8]        CrimA 3636/12 Shweiki v. State of Israel (10.20.2013)

[9]        CrimA 5582/09 A. v. State of Israel (10.20.2010)

[10]      CrimA 8203/11 A. v. State of Israel (9.9.2012)

[11]      CrimA 2218/10 A. v. State of Israel (11.21.2011)

[12]      CrimA 20/04 Kleiner v. State of Israel, [2004] IsrSC 58(6) 80

[13]      CrimA 4191/05 Altgaus v. State of Israel (10.25.2006)

[14]      CrimA 4784/13  Nir Somekh v. State of Israel (2.18.2016)

[15]      CrimA 6157/03 Hoch v. State of Israel (9.28.2005)

[16]      CrimA 6147/07 Avisidris v. State of Israel  (7.2.2009)

[17]      CrimA 8133/09 Mizrahi v. State of Israel (7.21.2010)

[18]      CrimA 4675/97 Rozov v. State of Israel, [1999] IsrSC 53(4) 337

[19]      CrimA 1964/14 Shimshilshvili v. State of Israel (7.6.2014)

[20]      CrimA 8687/04 Khilef v. State of Israel (12.12.2005)

[21]      CrimFH 1042/04 Biton v. State of Israel, [2006] IsrSC 61(3) 646

[22]      CrimA 8107/10 Ezer v. State of Israel (9.9.2013)

[23]      CrimA 6167/99 Ben Chelouche v. State of Israel, [2003] IsrSC 57(6) 577

[24]      CrimA 369/69 Benno v. State of Israel, [1970] IsrSC 24(1) 561

[25]      CrimA 418/77 Bardarian v. State of Israel, [1978] IsrSC 32(3) 10

[26]      CrimA 33984 Rabinowitz v. State of Israel, [1985] IsrSC 39(4) 253

[27]      CrimA 1354/03 Dakar v. State of Israel, [2004] IsrSC 58(2) 83

[28]      CrimA 759/97 Alexander Eliabayev v. State of Israel,  [2000] IsrSC 55(3) 459

[29]      CrimA 686/80 Siman Tov v. State of Israel, [1982] IsrSC 36(2) 253

[30]      CrimA 7707/11  Laham v. State of Israel  (7.29.2015)

[31]      CrimA 322/87 Dror v. State of Israel, [1989] IsrSC 43(3) 718

[32]      CrimA 46/54 Attorney General v. Segal, [1955] IsrSC 9 393

[33]      CrimA 6580/96 Chicola v. State of Israel (7.6.2000)

[34]      CrimA 132/10 Tevachau v. State of Israel  (9.5.2011)

[35]      CrimA 3071/92 Azoualus v. State of Israel, [1996] IsrSC 50(2) 573

[36]      CrimA 8641/12 Saad  v. State of Israel (8.5.2013)

[37]      CrimA 4741/13 State of Israel v. Naamneh  (6.10.2014)

[38]      CrimA 7000/10 Alfidel v. State of Israel (1.10.2007)

[39]      CrimA 6353/94 Bouhbut v. State of Israel, [1995] IsrSC 49(3) 647

[40]      CrimA 4419/95 Hadad v. State of Israel, [1996] IsrSC 50(2) 752

[41]      CrimA 7992/09 A. v. State of Israel (6.20.2010)

[42]      CrimA 6283/09 Levy v. State of Israel  (11.24.2010)

 

Israeli District Court cases cited:

[43]      CrimC (Beit Shemesh) 1010/07 State of Israel v. Dromi (7.15.2009)

 

United States cases cited:

[44]      State v. Norman, 324 N.C. 23, 259 (1989)

[45]      State v. Harden 223W Va. 796 (2009)

 

English cases cited:

[46]      R v. Dawes [2013] EWCA Crim 322

[47]      R v. Gurpinar & Kojo-Smith [2015] EWCA 178

[48]      R v. Humphreys [1995] 4 All ER 1008

[49]      R v. Wood [2009] EWCA Crim 651

 

Israeli legislation cited:

Penal Law, 5737-1977

 

English legislation cited:

The Coroners and Justice Act 2009 (c. 25)

 

Appeal on a judgment of Sept. 2, 2013 and sentence of Dec. 22, 2013, by the Central-Lod District Court (Judges R. Lorch, Z. Dotan, U. Weinberg-Nottowitz) in CrimC 22262-05-10

 

Adv. Alon Eisenberg  - On behalf of the Appellant

Adv. Arieh Peter; Adv. Micky Foran - On behalf of the Respondent

Adv. Bracha Weiss     - On behalf of the Adult Probation Service

 

Abstract

In the set of special circumstances of this case, in which prior to the attack on the Decedent, he threatened the Appellant and humiliated him, against the backdrop of two incidents of sexual abuse  in the preceding weeks, the claim of “cumulative provocation” can apply. Therefore, the conviction of the Appellant for murder should be changed to a conviction for the crime of manslaughter. Consequently, the prison sentence imposed upon the Appellant was reduced to 12 years of imprisonment.

Criminal law – offense of murder – cumulative provocation

Criminal law – offense of murder – provocation

Criminal law – defenses – self-defense

Criminal law – defenses – putative self-defense

Criminal law – penalty – penal policy: manslaughter

Criminal law – crime of murder – reduced penalty

This is an appeal on a verdict, and alternatively, on the severity of the sentence.  The background: On the evening of the fatal event, the Decedent and the Appellant met by chance. The Decedent demanded that the Appellant pay him NIS 1000. Later, the Decedent took the Appellant to a dark parking lot, threatened to beat him if he did not pay the said sum within a day or two, and then opened the zipper of his pants and exposed his penis in order to urinate, standing with his back to the Appellant. The Appellant then strangled the Decedent. He then struck him with a rock and caused his death. There is no dispute that in the weeks preceding the night of the fatal event, the Appellant was sexually abused and sodomized twice by the Decedent, and was the victim of extortion at the hands of the Decedent. The District Court convicted the Appellant of the offense of “premeditated” murder under circumstances that justified the imposition of a reduced penalty under sec. 300A(c) of the Penal Law.  Consequently, the Appellant was sentenced to a custodial sentence of 20 years, and a conditional sentence. The Appellant argues that he should be exempted from criminal responsibility because he acted in “self-defense” at the time that he killed the Decedent, and alternatively, by virtue of the defense of “putative self-defense”. As an additional alternative, it was argued that the actions of the Appellant were carried out in the face of provocation, or at least cumulative provocation, and therefore the Appellant should be acquitted of the offense of murder of which he was convicted, and convicted instead of the offense of manslaughter.

The Supreme Court (per Justice H. Melcer, Justices U. Shoham and D. Barak-Erez concurring) ruled:

The Appellant will be acquitted of the crime of murder and convicted, instead, of the crime of manslaughter. Consequently, the term of imprisonment to which the Appellant was sentenced will be reduced to 12 years imprisonment.

First, the Court determined that there is no reason to depart from the factual findings of the trial court, except in relation to the psychological reaction of the Appellant to the acts of the Decedent prior to the killing.

Pursuant to this, the Court determined that the Appellant cannot avail himself of the defenses to criminal liability of “self-defense” or “putative self-defense”, and he bears criminal responsibility. In this context, the Court addressed the normative framework of “traditional” self-defense, determining that in the matter of the Appellant, the elements of immediacy and necessity were not present. The Court also conducted a comparison between the present case and that of the Dromi case, and ruled that this conclusion stood firm even on the assumption that leniency should be exercised in the present case in regard to the requirements of “traditional” self-defense, and that they should be compared with those relating to protection of one’s home. The Court also discussed the conditions for the defense to criminal responsibility of “putative self-defense”, and ruled that even had the situation been as perceived by the Appellant at the time of the incident, the defense of putative self-defense was not available to him, in view of the actions of the Appellant once the Decedent fell to the ground after being strangled.

At the same time, the Court was of the opinion that reasonable doubt arises in this case with respect to the component of “absence of provocation”, which constitutes part of the special mental element of the crime of “premeditated” murder.

The case law has held that a determination on the question of the existence of provocation requires meeting two cumulative criteria. The first is the criterion of subjective provocation, which examines whether the alleged provocative behavior caused the defendant to lose his self-control and to commit the fatal acts, without weighing their moral consequences. The second is the criterion of objective provocation, in the framework of which one must ask whether an “ordinary person”, had he been in the defendant’s situation, would have been liable to lose his self-control and to act in the way that the defendant acted. The burden of proof of the component of “absence of provocation” lies with the prosecution, but it has been ruled that a “lesser degree of proof” is required, and the prosecution fulfills its duty by bringing evidence of the causing of the death.

In applying the subjective criterion, the Court held that in view of the Decedent’s cruel treatment of the Appellant over a prolonged period preceding the night of the fatal event, the chain of events on the night of that event immediately prior to the act of killing attests to the existence of taunting, which is not of sufficient force in order to ground, itself, “regular provocation” (which is sometimes called “spontaneous provocation”), but is sufficient for the purpose of “cumulative provocation”.

Establishing the existence of “cumulative provocation”, which negates the mental element of “premeditation” that is required for the crime of murder, requires establishing continuous, cumulative acts of taunting on the part of the victim, and that, close to the time of the killing, an additional act of taunting (a “trigger”) occurred, and that the whole set of acts of persecution drove the defendant to lose his self-control so that he could not think and understand the serious moral consequences of his actions. This “trigger” must have independent status and force, but at the same time, its force is liable to be less than that required to ground taunting in a situation of “spontaneous provocation”. Moreover, the decision to kill must have formed in the defendant’s mind only after the “trigger” was activated, not before.

The Court was of the opinion that in the special circumstances of the particular case, in which, prior to the attack on the Decedent, he threatened the Appellant and humiliated him, and against the background of two occurrences of sexual assault in the preceding weeks, the required “trigger” occurred close to the act of killing – or at least, there is room to surmise that it did – and therefore the claim of cumulative provocation should be accepted.

A normative examination justifies recognition of the existence of cumulative provocation in the framework of the objective test, as well. In this context, the Court ruled that “subjectivization” of the test for objective provocation should be avoided, and there should be no departure, at this stage, from the criterion of the “ordinary person”. At the same time, the Court believed that the present case does not require recourse to the criterion of “the reasonable victim of a sexual offence”, for the sexual abuse that the Appellant experienced – and in this regard, the earlier acts perpetrated by the Decedent on the victim must be included – falls within the parameters of the objective test, according to the traditional criterion of the “ordinary person”. In this context, Justice Shoham summed up that the requirement of objective provocation is exhausted by the fact that it must overcome the hurdle of the “ordinary person”, given the common history and past of the killer and the victim of the crime, insofar as they are relevant to the event described in the information.

In view of this conclusion, and because the component of “absence of provocation” constitutes part of the special mental element of the offense of “premeditated” murder, the Appellant should be acquitted of the offense of murder, and convicted instead of the crime of manslaughter. As a result, and after deliberation, the Appellant’s sentence was set at 12 years imprisonment, from which the period of his detention would be deducted. This, in addition to the conditional sentence imposed by the District Court.

Justices Shoham and Barak-Erez concurred, adding some comments, in which Justice Melcer concurred.

 

Judgment

 

Justice H. Melcer:

1.         The Central-Lod District Court (Judges R. Lorch, Z. Dotan, U. Weinberg-Nottowitz) convicted the Appellant in CrimC  22262-05-10 of the crime of “premeditated”  murder (an offense under sec. 300(a)(2) of the Penal Law, 5737-1977 (hereinafter: Penal Law, or the Law)) in circumstances that justified a reduced sentence under sec. 300A(3) of the Penal Law. Following the said conviction, the District Court imposed the following penalties on the Appellant: imprisonment for a period of 20 years (from which the period of his detention in the course of the proceedings would be deducted); conditional imprisonment for a period of 3 years (the condition being that the Appellant does not commit an violent felony for a period of three years from the date of his release).

The present appeal is directed at the verdict, and alternatively, at the severity of the sentence. The facts relevant to the decision will be set out below.

Background

2.         Yonatan Yamar (hereinafter: the Appellant) was born in 1987, and at the time of the fatal event,  lived in his sister’s apartment in Netanya. The Appellant had suffered from epilepsy from the age of 17, but other than that, he led a routine life. The Appellant was described by a number of witnesses (including: his sister, his brother-in-law, his good friend Avi (hereinafter: Avi) and Rabbi Amir Kahana (director of the Chabad Institutions in Ramat Aviv ‒ the Appellant resided in one of the institutions under his supervision when he was released, as an alternative to detention)) as a calm, quiet person, a “good boy” who “doesn’t make trouble” and who does not act violently. Prior to the fatal event, the Appellant had no criminal past. He was the object of abuse by the local children, and said that children younger than him would taunt him. He also described incidents in which a 16 year old boy cut his hand with a broken beer bottle, another child cut him on the head with a knife, and later he was stabbed twice in the foot. In addition to these abuses, the Appellant was also the object of abuse by the late Yaron Eilon (hereinafter: the Decedent) – these events are described in detail below.

3.         The Decedent was 24 years old when he died. Prior to his death, he, too, lived in Netanya, close to where the Appellant lived. The Appellant claimed that the Decedent was known in the neighborhood as a criminal, frightening figure. This claim was supported by the statement of the owner of the kiosk at which the Decedent and the Appellant met on the night of the event that is the subject of the charge (P/16, p. 2 lines 14-16). The Decedent also had a criminal history of violence and sexual offenses.

4.         According to the Appellant, in the years preceding the event, the Decedent would harass him, extort money from him, and beat him. Thus, for example, the Appellant related that the Decedent invented a derogatory, insulting nickname for him – “Dukat” – which in Amharic means “child who carries flour”. According to the Appellant, this nickname offended him deeply, and it was taken up by other children in the neighborhood. Beyond that, the Appellant reported that two years prior to the incident, the Decedent called him, rummaged through his pockets, and took several hundred shekels in cash from him (the Appellant also claimed in his testimony, and in some of his statements to the police, that similar incidents occurred on other occasions). The Appellant, in his first statement to the police, described an additional incident that occurred about a month and a half before the fatal event: the Decedent told him that he had been beaten by a number of people, and because he claimed that the Appellant knew the assailants, he threatened him, saying: “If you don’t bring those people, you’ll be instead of them” (see: p. 55 of the transcript; and also: P/1, lines 78-86).

5.         According to the Appellant, these  acts of persecution reached their climax during the two weeks preceding the event. The Appellant claimed that in the said period, the Decedent, on two separate occasions, took him to a park known as the “Puddle Park”, threatening him all along the way. When the two reached a dark area of the park, the Decedent attempted to forcefully sodomize the Appellant, making crude sexual remarks such as: “You have a beautiful behind, you should be proud of it” (P/4, lines 28-29). It will be noted that the Appellant subsequently testified that during that period, the Decedent sodomized him twice (see: the judgment, para. 3).

6.         I will now describe the chain of events on the night between 1-2 May, 2010 (hereinafter: the night of the event), as described in the information, and subsequently, the versions of the Appellant in this regard in his police interrogations and in his testimony before the District Court.

The Information

7.         On May 13, 2010, an information was filed against the Appellant, in which the facts of the event were described as follows:

On the evening of the event, the Appellant, together with his friend Avi, arrived together at the kiosk in Netanya, after the two had drunk alcoholic drinks together. At that time, the Decedent was at the kiosk with his friend Nathan (hereinafter: Nathan), and they, too, were imbibing alcoholic drinks. An argument developed between the Appellant and the Decedent, and they went behind the kiosk in order to talk. While they were talking behind the kiosk, when the Decedent had his back turned to the Appellant, the Appellant fell upon the Decedent from behind and strangled him with his hands for a few minutes. At some stage, the Appellant loosened his grip, and the Decedent fell to the ground. At this point, the Appellant hit the Decedent an unknown number of times on his head with a rock that was in the vicinity. The Appellant subsequently grabbed the Decedent’s leg and dragged him for 35 meters to a spot located next to a garbage bin in the parking lot, and began to hit the Decedent on the head again, with great force, with a rock. After the said beating, the Appellant went home, leaving the Decedent where he lay.

As alleged in the information, as a result of the actions of the Appellant as described above, the Decedent suffered comminuted fractures of the cranium and facial bones, lacerations to the brain membrane, and subarachnoid hemorrhaging, which led to his death.

The Appellant’s Version

8.         Several hours after the event, the Appellant surrendered himself to the police, and admitted to causing the death of the Decedent. During his interrogation by the police, the Appellant made five statements concerning the chain of events on the night of the event and prior to it. He participated in a reconstruction of the killing (P/2), as well as a reconstruction of his alleged sodomization by the Decedent (P/7). The Appellant also described the course of events in his testimony before the District Court. In that testimony, the Appellant added details that were not included in the police interrogation. I will now review the version of the Appellant, as it emerges from his statements and his testimony.

9.         In his first statement to the police, the Appellant described the acts of cruelty perpetrated against him by the Decedent, which were mentioned above. However, the Appellant refrained from telling the investigators, at this stage, about his sexual abuse. It was only in his third police interrogation that the Appellant first claimed that sexual acts had twice been performed on him by the Decedent. According to the Appellant, he refrained from reporting these acts in his first statements out of shame and fear that they would reach the media. The Appellant added that he did not tell anyone else about the sex acts, including his family and his friend Avi, also due to shame. The Appellant claimed that following the acts of sodomy, his epilepsy, from which he had suffered from the age of 17, became worse, and that since they occurred, he has been very disturbed and has often fainted.

In the absence of evidence to contradict the Appellant’s version of the background to the night of the event, counsel for the Respondent announced, upon the completion of the Appellant’s testimony in the District Court, that he cannot refute the claim of the Appellant concerning the sexual abuse and extortion by the Decedent. Therefore, these facts are not in dispute in the appeal.

10.       As for the night of the event, the Appellant stated, in his first statement, that he spent the hours preceding the event in his sister’s home, where he was living at the time, having dinner together with his family and his friend Avi. After eating and drinking alcoholic drinks, the Appellant and Avi decided to go to the kiosk near the home of the Appellant’s sister. While they were at the kiosk, they suddenly met the Decedent and his friend Nathan. The Appellant recounted that the Decedent asked him: “Do you remember what you stole from me?” and afterwards the Decedent demanded that the Appellant come aside with him for a moment to talk (as opposed to this, the Appellant claimed in his testimony in the District Curt that it was he who asked to talk alone with the Decedent). The Appellant also said that the Decedent demanded that he pay him a sum of NIS 1000, allegedly for no reason.

The Appellant went on to mention, in his first statement, that after he and the Decedent had moved aside to talk, the Decedent continued to demand the above payment from him, threatening him that if he did not pay within a day or two – he would beat him. In his later version, the Appellant claimed that the Decedent also threatened to kill him if he did not pay him what he demanded within the set time, and in his testimony before the Court, he added, for the first time, that the Decedent made sexual remarks at that time, similar to those that he whispered to him when he was sodomizing him in the weeks preceding the night of the fatal event.

According to the Appellant’s testimony, at a certain point Avi approached them, but the Appellant motioned to him to go away. This detail was also provided by Avi in his testimony. The Appellant explained in his testimony before the trial court that he did so because he was afraid that Avi would hear the sexual remarks the Decedent directed at him. The Appellant related in his testimony that after Avi left, the Decedent told him that he wants to talk to him behind the kiosk. According to the Appellant, he agreed to the Decedent’s demand, and went with him behind the kiosk, frightened that the Decedent would sodomize him for a third time.

The Appellant also testified that after they turned towards the parking lot behind the kiosk, the Decedent turned around to urinate, while continuing to utter threats and sexual remarks to him. The Appellant described what happened there as follows:

I saw that [the Decedent] finished urinating, I saw that he pulled up his pants, I saw him from behind. As he was about to turn around, the rage and all the anger, I strangled him. I was afraid that he would kill me. I was afraid that he would rape me again… (see p. 59 of the transcript; and cf: P./1, p. 3-5).

In his first statement, the Appellant described how he strangled the Decedent for several minutes, at the end of which the Decedent fell to the ground, still breathing, and also shaking. At this stage, according to the Appellant, he picked up a rock and hit the Decedent on the head with the aim of killing him. Then the Appellant dragged the Decedent, by grabbing his legs, to the spot that was next to the garbage bin that stood in the parking area behind the kiosk. In the course of reconstruction of the act, the Appellant described how, after dragging the Decedent, he picked up another rock and again hit the Decedent on the head with it. In his testimony, the Appellant changed the story that he had given to the police, and claimed that he thought that the Decedent was already dead after being strangled, and that he hit him with the rocks in a fit of rage and not in order to kill him. Finally, the Appellant said that after the events as described, he went home, changed his clothes, and several hours later turned himself in to the police (a description that already emerged in his first interrogation by the police).

The Judgment of the District Court

11.       On Sept. 2, 2013, the District Court passed judgment on the Appellant. On the facts, the trial court ruled that the main thrust of the Appellant’s testimony concerning the night of the event was consistent and coherent, and therefore adopted it in the main. At the same time, the District Court pointed out several contradictions and inconsistencies that emerged from the whole body of statements by the Appellant, his testimony, and the versions of other witnesses for the prosecution. The trial court was of the opinion that on these points the Appellant attempted “to blur, to obfuscate, to add and to change the emphases, in a manner that would provide a basis for the defense arguments.” Below, I will refer to several of these inconsistencies and contradictions discussed by the trial court that are relevant to the present appeal.

12.       The nature of the Decedent’s threat to the Appellant. The District Court determined that the Appellant changed his version with respect to the nature of the threats that were made by the Decedent on the night of the fatal event. Whereas in his first statement, the Appellant claimed that the threats made by the Decedent amounted to being beaten if he did not pay the NIS 1,000 within a day or two, in his testimony in court, the Appellant said that the Decedent threatened to kill him. The District Court found that this was an attempt by the Appellant to raise the level of the threat made by the Decedent, for the purpose of improving his chances to ground his various defense arguments, and therefore the court preferred the earlier version in this regard.

13.       Sexual remarks in the course of the events. The trial court determined that the Decedent first raised the subject of the Decedent’ alleged sexual remarks on the night of the event only in the course of his testimony in the District Court. The District Court chose to reject the Appellant’s version on this matter and found, as a matter of fact, that such remarks were not made by the Decedent to the Appellant on that night. The court explained that between the third statement of the Appellant in which he disclosed the sodomy, and until he testified in court, there were several opportunities on which the Appellant could reasonably have been expected to mention the sexual remarks made to him, insofar as such remarks were made by the Decedent in the course of the events on which the information turned.

14.       The Appellant’s perception of the state of the Decedent after he had been strangled. In his first statement, the Appellant said that after the Decedent fell to the ground after being strangled: “He was breathing, he was trembling” (P/1, lines 171-172), and later the Appellant said that: “I had the feeling that he was dead, but I wasn’t sure” (P/1, line 189). Subsequently, the Appellant hit the Decedent on the head with a rock, and explained to the police in his first statement that the purpose of hitting him was “to kill him, so he should die” (P/1 lines 189-193). As opposed to this, in his testimony in court, the Appellant said that he already understood that the Decedent was dead when he fell to the ground after being strangled, and that hitting him with the rock was done purely out of rage. The court dismissed the later version of the Appellant on this matter, too, and determined that the Appellant was not sure that the Decedent was dead when he began hitting him with the rock. Similarly, the District Court adopted the pathology report whereby the Decedent died from being hit on the head with the rock, and not from strangulation.

15.       The psychological reaction of the Appellant prior to the killing. The District Court ruled that the Appellant suppressed his testimony with respect to his state of mind after the Decedent’s threats and his demands for money, and raised these “things at a later stage in an attempt to show panic and loss of self-control, which were likely to help him in grounding his defense claims”. Therefore, the lower court preferred the Appellant’s initial version, whereby he acted with calm calculation when he decided to strangle the Decedent, and ultimately to kill him.

16.       After discussing all the facts of the event in accordance with its findings, the trial court proceeded to examine the legal ramifications of what happened on that day. The District Court ruled that in the circumstances of the case, the actus reus of the crime of murder under sec. 300(a)(2) of the Penal Law was met, for the Appellant caused the death of the Decedent by strangling him and striking him with rocks. The District Court subsequently examined the mental element required for a conviction of the crime of murder, and decided that it, too, was met in the matter of the Appellant. In this context, the lower court determined, based on the admission of the Appellant, that he had decided to kill the Decedent, and that alongside the decision to kill, the element of preparation, necessary for the purpose of establishing the mental element of “premeditation”, was also present, this preparation being executed with the start of the prolonged choking, or at least in the course of it.

17.       With respect to fulfillment of the third condition in the framework of the mental element required for conviction of the crime of “premeditated” murder, i.e., absence of provocation, the lower court separated the discussion on this subject, as is the norm, and examined it according to two sub-tests that have been established in the case law: the test of subjective provocation and the test of objective provocation.

Regarding the subjective aspect, the lower court determined that, in view of the facts of the events, as determined by it, the only persecution that took place was focused on the demand for money and the threats on the part of the Decedent. At the same time, the District Court held that this persecution was insufficient to constitute “provocation” for the purpose of negating “premeditation” in the framework of the crime of murder, and it was also insufficient for the purpose of serving as an “additional act of provocation” under the doctrine of “cumulative provocation” (on which I will elaborate below). The District Court further determined that the Decedent’s demands for money and threats began when they were at the kiosk, and not immediately before the fatal event (as required for the purpose of normal provocation). Moreover, the District Court held that the Appellant acted calmly, and did not lose self-control in a way that prevented him from understanding the outcome of his actions. In view of the above, the lower court determined that, according to the subjective test, that Appellant was not provoked immediately prior to the act of killing.

As for the objective aspect, the trial court held that, from a normative point of view, the insulting remarks, and even the extortion, could not be accepted as the basis for a claim of provocation. The District Court thus dismissed the defense of provocation according to the objective test, as well.

18.       In view of all the above, the lower court held that, in the circumstances of the Appellant, the elements of the crime of murder were met in full, and it therefore convicted the Appellant of this crime.

19.       The lower court dismissed the additional two main defense arguments raised: “irresistible impulse”, and self-defense.

As for the first defense argument (irresistible impulse) – the Court ruled that counsel for the Appellant did not reiterate this argument in the framework of his summations, and as such, this defense was, in fact, abandoned (neither was it raised again in the framework of the appeal).

As for the argument of self-defense – the trial court determined that none of the six cumulative conditions required to prove this defense were met, and it therefore dismissed this argument as well. The lower court also addressed the possibility that this was a case of “putative self-defense”, but it dismissed this possibility, too, for  counsel for the Appellant tried to base this defense argument on parts of the Appellant’s version that had been rejected by the Court, as described above.

20.       After having determined that the elements of the crime of murder were present, and that the Appellant could not invoke the above defenses as claimed, the lower court determined, as stated, in view of the consent of the Respondent, that the act of murder was committed when the Appellant was in a state of severe emotional distress due to prior abuse at the hands of the Decedent, which justified imposing a mitigated sentence in accordance with sec. 300A(c) of the Penal Law.

 

The Sentence of the District Court

21.       On Dec. 22, 2013, the District Court passed sentence on the Appellant, in light of its ruling concerning a mitigated sentence under sec. 300A(c) of the Penal Law. In accordance with Amendment 113 to the Penal Law, the court addressed the circumstances of the case and the relevant considerations in determining the parameters of the penalty. Ultimately, the court set the parameters of the prison sentence at between 18 and 25 years. Within the said parameters, the District Court imposed on the Appellant a prison term of twenty years (less time served), and also sentenced him to a conditional sentence as stated in para. 1, above.

The Arguments of the Appellant

22.       The appeal before us is directed against the judgment of the court and against the sentence. Regarding the judgment, counsel for the Appellant challenges both the factual findings and the legal determinations of the District Court. Below are the Appellant’s main arguments.

23.       With respect to the factual findings: counsel for the Appellant argues that the lower court was mistaken in preferring the Appellant’s first version to what he said in his later statements, and in his testimony in court. The approach of counsel for the Appellant, which runs as a common thread through the appeal arguments, is that the Appellant’s original story, conveyed in the course of his first police interrogation, and the reconstruction of the killing, should not be assigned great weight. This is because it does not reflect the Appellant’s true thoughts and feelings from the night of the event, since at that stage the Appellant had not yet disclosed the sexual abuse perpetrated upon him by the Decedent. Consequently, counsel for the Appellant argues that this Court should intervene in the factual findings of the lower court, cited in paras. 12-15 above, and accept what the Appellant said beginning with his third statement (in which he decided to tell, for the first time, as stated, about being a victim of sexual crimes as well), and thereafter, including in his testimony in court, even if these are not consistent with his first version.

24.       Over and above his reservations about the factual findings of the District Court, and based on the Appellant’s version regarding those subjects, counsel for the Appellant raises three main legal arguments, which I shall set out below:

(a)        Self-defense: Counsel for the Appellant claims that the chain of events in this case indicates that the Appellant acted in self-defense. In this context, counsel for the Appellant contends that the circumstances of the present case are comparable to the circumstances in CrimC (Beit Shemesh) 1010/07 State of Israel v. Dromi [43], in which the defendant, who killed an intruder, was acquitted because he acted in defense of his fenced farm, under sec. 34J1 of the Penal Law. He contends that this comparison justified leniency regarding the requirements of the defense of self-defense, as per sec. 34J1, and exemption of the Appellant from all criminal responsibility.

(b)        Putative self-defense: Counsel for the Appellant argues, alternatively, that in view of the previous acquaintance between the Decedent and the Appellant, which included several incidents of sexual molestation, the elements required for self-defense should be examined as the Appellant imagined them to be at the time, according to the defense to criminal responsibility that has been recognized in the case law and termed: “putative self-defense”. Counsel for the Appellant argues that, in light of the events of the weeks preceding the night of the event, the Appellant thought that the Decedent was taking him behind the kiosk in order to molest him sexually once again (and even claims that, in the absence of evidence to the contrary, it is to be assumed that this was indeed the intention of the Decedent), and began to strangle the Decedent for fear of this happening. Counsel for the Appellant claims that the Appellant also perceived that the other elements of self-defense (which will be specified below) were present, and therefore, by virtue of the defense of putative self-defense, the Appellant should be cleared of all criminal responsibility.

(c) Provocation: If the claims of self-defense, or putative self-defense, are not accepted, counsel for the Appellant contends that the actions of the Appellant were the result of provocation, or at least, cumulative provocation, the happenings of the night of the event constituting the additional act of provocation required to establish cumulative provocation. In view of the said provocation, counsel for the Appellant argues that the Appellant should be acquitted of the crime of murder of which he was convicted, and convicted, instead, of the crime of manslaughter.

On the question of the subjective-provocation test, counsel for the Appellant explains that the demand for payment and the threats to the life of the Appellant by the Decedent (as stated, the District Court determined that such threats were not made on the night of the fatal event), compounded with the sexual remarks (the claim that they were made was also rejected, as stated, by the lower court), the Decedent taking the Appellant to the dark parking lot, and the Decedent’s exposing his penis to urinate,  should be seen as acts amounting to provocation, in the circumstances.

Alternatively, counsel for the Appellant argues that these acts constitute, at the very least, the “trigger” required to indicate the existence of cumulative provocation. According to him, in view of the long-standing relations between the Appellant and the Decedent, which included humiliation, extortion, threats and acts of sodomy, which as he said: “…. pushed [the Appellant] to the brink of madness whenever he met the Decedent,” the events of the night of the killing cannot be detached from the other acts of cruelty perpetrated by the Decedent against the Appellant. Rather, they should all be viewed as cumulative provocation.

As for the objective-provocation test, counsel for the Appellant argues that in this case, the Court must ask how a “reasonable victim of rape” would have acted had he been in the Appellant’s situation on the night of the event. In his view, a “reasonable victim of rape” who was taken to a dark parking lot by a person who had attacked him sexually in the past, when this attacker is threatening him, “fining” him and making sexual remarks, is liable to act in the manner in which the Appellant acted on the night in question.

25.       Over and above these arguments, counsel for the Appellant claims that an exceptionally harsh sentence was imposed in this case. In this context, it was argued that the Appellant’s penalty should be reduced, since – according to his counsel – the penalty deviates from the accepted sentencing policy in cases such as this of imposing a reduced sentence. Counsel for the Appellant adds that this Court was prepared to show significant leniency in regard to the sentences of defendants who deviated from the conditions of self-defense. This should be the case here as well, if it be decided that the other defense arguments are not accepted.

The Respondent’s Arguments

26.       The Respondent relies on both components of the judgment of the District Court. In its view, although it accepts the Appellant’s version with respect to his “history” with the Decedent, which included extortion and sexual assault, it is of the opinion that the elements of the crime of murder are still present here, and that the Appellant should not be exempted from criminal resonsibility due to self-defense or putative self-defense.

27.       The Respondent argues that the primary arguments of the appeal challenge the trial court’s findings as to the facts and credibility, in which an appeal instance does not tend to interfere. It argues that the lower court preferred the Appellant’s first version to the later ones, based upon an unmediated impression of the Appellant’s testimony, examined all of the evidence, and believed that the Appellant’s later version was not credible. As such, the Respondent argues that there is no reason to deviate from the factual findings of the District Court, as enumerated above.

28.       As for the argument of self-defense and putative self-defense, the Respondent contends that, in view of the factual findings of the trial court with respect to the nature of the threat, there was no imminent threat to the Appellant, and therefore, the Appellant’s argument in this regard should be dismissed.

The Respondent adds that even had the Appellant sincerely thought that he was facing imminent danger, a number of alternatives were available to him that made it possible to refrain from killing the Decedent, including three different opportunities to “break off contact” with him. In view of this, the Respondent argues that there is no reason to exempt the Appellant from criminal responsibility by reason of self-defense, or “putative self-defense”.

The Respondent further adds that, in its view, the present case should not be compared to State of Israel v. Dromi [43], since the two cases involve different exceptions to criminal liability, and in view of a significant difference in the circumstances.

29.       The Respondent also objects to the argument raised by the Appellant on the issue of provocation. Regarding the subjective test for provocation, the Respondent argues that the Decedent’s demand for money and his threats to the Appellant began a few minutes before the strangulation occurred, and the Appellant even responded to these without losing self-control by conducting a long dialogue, attempting to convince the Decedent to let him off. Consequently, according to the Respondent, the actions of the Appellant did not ensue following provocation on the part of the Decedent. Additionally, the threats to the Appellant by the Decedent, and his attempt to extort money from him (which, alone, were accepted by the District Court as having occurred on the night in question) cannot be regarded as acts that amount to the “trigger” required for the existence of cumulative provocation.

Regarding the objective test for provocation, the Respondent argues that according to the case law, subjective elements may not be considered in the framework of this test, and therefore, we should not consider how a “reasonable victim of rape” might have acted had he been in the Appellant’s shoes. Rather, we must invoke the criterion of the “reasonable person” who, according to the Respondent, would not have acted in the way that the Appellant acted under the circumstances. The Respondent further argues that even if we examine the Appellant’s reaction in accordance with the “reasonable rape victim”, there is no basis for the assumption that such a victim would have reacted in such a vicious and deadly manner, as did the Appellant.

In light of the above, the Respondent is of the opinion that there is no reason to intervene in the determination of the District Court regarding the absence of provocation.

30.       Finally, the Respondent objects to the appeal on the severity of the sentence. According to the Respondent, this was a vicious murder, which justifies a substantial prison term behind bars, and there is no justification for leniency beyond that which was already shown by the District Court, following the Respondent’s consent to a reduced sentence by virtue of sec. 300A(c) of the Penal Law.

 

Later Developments

31.       After the arguments in the hearings, counsel for both parties submitted additional material relating to comparative law, and counsel for the Appellant even found fit to add references and citations as recently as May 5, 2016.

It should be noted here that counsel for each of the parties did their very best, in a very professional manner, in representing the case for their side.

Now, having described the situation and the points of disagreement, and having reviewed the arguments of the parties, I will proceed to analyze the issues.

 

Deliberation and Decision

32.       After reviewing all the material in the file, hearing the oral arguments, and examining the comparative law, I have reached the conclusion that the appeal on the judgment should be allowed in part, such that the Appellant will be acquitted of the crime of murder and will be convicted, instead, of the crime of manslaughter, under sec. 298 of the Penal Law, and I will recommend to my colleagues that we do so. At this stage, I will already mention that, in my opinion, the Appellant cannot invoke the defenses to criminal liability of “self-defense” or “putative self-defense”. At the same time, in my opinion, a reasonable doubt arises, in the circumstances of the case, with respect to the component of “absence of provocation”, which constitutes part of the special mental element of the offense of “premeditated” murder, and therefore his conviction for murder should be substituted by conviction for the offense of manslaughter.

In light of this conclusion, I will propose that we reduce the prison sentence imposed upon the Appellant, and set it at 12 years of imprisonment (less time served), as explained in paras. 118-120 below.

The reasons for the said conclusion will be presented in detail below.

 

Factual Basis

33.       There is no dispute between the parties that the Appellant did, indeed, cause the death of the Decedent. The Appellant admitted that it was he who brought about the death of the Decedent on the night of the event, after strangling him and hitting him with rocks. Similarly, there is no dispute between the parties that, in the weeks preceding the night of the events, the Appellant experienced  sexual abuse, and was the victim of two acts of sodomy, and an act of extortion by the Decedent.

The Appellant’s main factual arguments relate to the circumstances that preceded the death of the Decedent, and to the Appellant’s state of mind prior to and during the commission of the offense. The Appellant argues, contrary to the determination of the lower court, that in this context, preference should be accorded to the later version, which was conveyed in his testimony in the courtroom, over the earlier version, given to the police at his first interrogation and in the reconstruction of the scene of the killing (which preceded the disclosure of the sexual molestation by the Decedent).

34.       As is well known, an appeals instance does not normally intervene in the factual findings of the lower court and its findings regarding credibility, in view of the ability of the trial court to form an impression of the witnesses in a direct and unmediated manner (see, e.g., CrimA 2285/09 Alalu v. State of Israel [1], para. 11; CrimA 900/11 Atallah v. State of Israel [2], para. 6; CrimA 7004/09 A. v. State of Israel [3], para. 15; CrimA 7899/13 A. v. State of Israel [4], para. 17). At the same time, the case law has recognized exceptions to the said “rule of non-intervention”. Thus, for example, there may be justification for intervention by the appeals court where the findings of the trial court rely on logical considerations, or where these findings are not based on direct impressions of the witnesses, for in such cases, the trial court does not enjoy an advantage over the appeals court. Moreover, it has been held that the appeals court will also deviate from the rule of non-intervention where it feels that there were fundamental contradictions in the testimony that were not adequately addressed by the trial court, or that there is a fundamental, obvious mistake in the assessment of the credibility of the testimony (see: CrimA 2480/09 Padlon v. State of Israel [5], para. 8; CrimA 420/09 A. v State of Israel [6], para. 67); CrimA 3283/13 A. v. State of Israel [7], para. 27).

35.       As stated above, in its decision, the District Court did not give credence to the Appellant’s testimony on several subjects, and preferred what he had said in his earlier police interrogations (see paras. 12-15 above). The lower court formed a direct impression of the Appellant in the framework of his testimony, and therefore, in accordance with the above “non-intervention rule”, I see no reason to intervene in the decision of the District Court to reject parts of this testimony. However, since the trial court chose to base part of its factual findings on written evidence (i.e., the statements made by the Appellant to the police), and on logical considerations, it does not have an inherent advantage over the appeals court, and therefore, I see no barrier, in principle, to reexamining these factual findings (cf.: CrimA 3636/12 Shweiki v. State of Israel [8], para. 18 of my opinion).

Notwithstanding the above, after examining the said factual findings, which were based primarily on the Appellant’s statements to the police, I see no reason to deviate from the factual findings of the trial court, except on the matter of the psychological reaction of the Appellant to the actions of the Decedent prior to the killing. I shall explain.

36.       I would first mention that I do not accept the argument of counsel for the Appellant that what the Appellant said prior to the disclosure of the sexual abuse should be ignored. The Appellant’s attempt to conceal the sexual acts perpetrated upon him by the Decedent is, indeed, liable to affect certain parts of his original version, but one cannot deduce from this that it ought to be dismissed entirely. Thus, for example, disclosure of the acts of sodomy cannot explain the change in the Appellant’s version regarding the nature of the threats made by the Decedent on the night of the incident (beating, or killing). Similarly, I do not believe that this disclosure necessarily affected the original version of the Appellant regarding the time at which he deduced that the Decedent was dead (after the strangulation, or only after hitting him with the rock). Hence, in my opinion, the trial court was correct in its determinations on these matters.

37.       I also accept the decision of the District Court to dismiss the Appellant’s claims, which were raised for the first time only in the course of his testimony, whereby the Decedent made sexual remarks to him on the night of the event. As explained by the District Court, between the third interrogation, in which the sexual abuse of the Appellant was disclosed for the first time, and his testimony, the Appellant had several opportunities to clarify his version, but he refrained from doing so, without providing a satisfactory explanation. Counsel for the Appellant claims that this is a matter of a suppressed memory, which came back to the Appellant only as the date of testifying approached, but in my opinion, this argument must be dismissed. This Court has acknowledged the possibility of recognizing suppressed memories that re-emerged. However, recognition and recourse to these memories will occur only in very rare cases, and with great caution (see: CrimA 5582/09 A. v. State of Israel [9], para. 125 per Justice Y. Amit; CrimA 8203/11 A. v. State of Israel [10], para. 9). It has also been decided in the case law that a claim of suppressed memory must be supported by external evidence, in light of the concern that the memory is false rather than suppressed (see: CrimA 2218/10 A. v. State of Israel [11], para. 101). In the case at hand, counsel for the Appellant’s claim of a suppressed memory was raised generally, with no evidence that might have supported such a claim. This would seem to suffice to dismiss the argument raised by counsel for the Appellant on this subject. Moreover, his claim is not logically tenable, for it is unreasonable that the Appellant would remember the acts of sodomy perpetrated upon him, and the sexual remarks that accompanied these acts, but suppress those sexual remarks addressed to him when there was no sexual abuse. In light of all this, I see no reason to interfere in the findings of the lower court whereby sexual remarks were not made to the Appellant on the night of the incident.

38.       Below I will more broadly address the determination of the District Court regarding the Appellant’s reasoning when he began the strangulation. At this stage, I would point out that my opinion on this matter, which differs from that of the lower court, is that the actions of the Appellant were done out of emotional turmoil that affected his reasoning.

39.       In summary, apart from the Appellant’s emotional reaction to the Decedent’s actions before the killing, I see no reason to intervene in the factual findings of the lower court. I accept, therefore, that the Appellant met the Decedent by chance at the kiosk. The two distanced themselves from Avi and Nathan in order to talk, and there, the Decedent threatened the Appellant that if he did not pay him NIS 1000 within a day or two, he would beat him. After a while, Avi approached the two of them, and the Appellant motioned him to go away. The Decedent then took the Appellant to the empty parking lot behind the kiosk, turned his back to the Appellant, unzipped his pants and exposed his penis in order to urinate, while continuing to threaten the Appellant. When the Decedent finished urinating and begin to do up his pants, the Appellant attacked him from behind and began strangling him, continuing to do so for approximately seven minutes. When this strangulation stopped, the Decedent fell to the ground, but he was still shaking and breathing. The Appellant, who understood that the Decedent was not yet dead, picked up a rock and struck the Decedent several times. The Appellant then dragged the Decedent to a place next to the garbage bin, picked up another rock, and hit the Decedent several more times. The Appellant then went home, and several hours later, he presented himself at the police station and confessed to the killing.

40.       Having addressed the factual questions required to decide on the appeal, I will proceed to examine the Appellant’s legal arguments, bearing in mind the above findings.

 

Exemption from Criminal Liability

41.       Counsel for the Appellant argues, as stated, that the Appellant should be exempted from criminal responsibility because he acted in “self-defense” when he killed the Decedent. At the same time, he argues that the requirements of self-defense should be relaxed, as was done in the Dromi case [43]. Alternatively, counsel for the Appellant argues that the Appellant should be exempted from criminal responsibility by virtue of “putative self-defense”. I shall discuss these in the following order: First, I will present the normative framework of “traditional” self-defense, and ask whether this defense is available to the Appellant in the present case. I will then address the comparison that the Appellant seeks to draw between this case and that of the Dromi case, and the possibility of leniency in relation to the elements of “traditional” self-defense in the circumstances. Finally, I will examine the Appellant’s argument in regard to the existence of “putative self-defense”.

 

Self-Defense

42.        Self-defense as a defense to criminal responsibility is regulated in sec. 34J of the Penal Law, which states as follows:

No person shall bear criminal responsibility for an act that was immediately necessary in order to repel an unlawful attack, which posed real danger to his own or another person’s life, freedom, bodily welfare or property; however, a person is not acting in self-defense when his own wrongful conduct caused the attack, the possibility of such a development having been foreseen by himself.

Also relevant here is sec. 34P, which states:

The provisions of sections 34J, 34K and 34 L shall not apply if – under the circumstances – the act was not a reasonable one for the prevention of the injury.

43.       We learn from the above statutory provisions of six cumulative elements that are necessary for the purpose of grounding a claim of self-defense – elements that have been recognized in the case law of this Court and in the legal literature (see: CrimA 20/04 Kleiner v. State of Israel [12], 90-92; CrimA 4191/05 Altgaus v. State of Israel [13], para. 13, per Justice E. Arbel; CrimA 4784/13  Nir Somekh v. State of Israel [14], para. 162), and they are as follows:

(a)        The actions of the defendant were for the purpose of repelling the unlawful attack.

(b)        There was a real danger of harm to “the life, liberty, bodily welfare or property” of the defendant, or of another.

(c)        The danger was imminent. There are two aspects to this condition: First, the defensive conduct was embarked upon only from the moment that it was imminently required to repel an attack. Second, the defensive conduct ceased from the moment that it was no longer required to repel the attack (see: Altgaus v. State of Israel [13], para. 13 per Justice Arbel,); CrimA 6157/03 Hoch v. State of Israel [15], para. 14); S.Z. Feller,  Criminal, Elements of Criminal Law,  vol. 2 (1987) 426-427 (Hebrew); Boaz Sangero, Self-Defense in Criminal Law (2000) 18 (Hebrew)  (hereinafter: Sangero)).

(d)       The defendant did not bring about the attack through his own unlawful conduct, “the possibility of such an attack having been foreseen by himself.”

(e)        The actions of the defendant were necessary in order to repel the attack. This condition includes “qualitative necessity”, i.e., that other alternatives were not available to the defendant, and “quantitative necessity”, i.e., that it was not possible to use less force (see: Altgaus v. State of Israel [13], para. 13 per Justice E. Arbel; Kleiner v. State of Israel [12], at p. 90; Sangero, at p. 178; Yoram Rabin and Yaniv Vaki, Criminal Law, vol. 2 (3rd ed., 2014), pp. 799-800 (Hebrew) (hereinafter: Rabin & Vaki, vol. 2)).

(f)        The harm anticipated from the attack and the harm anticipated from the defendant’s act of self-defense are proportionate (Altgaus v. State of Israel [13], para. 13 per Justice E. Arbel; Sangero, at p. 206; Aharon Enker, Duress and Necessity in Criminal Law, (1977), pp. 112-114 (Hebrew)).

In the Altgaus case [13], it was explained that, at times, no distinction is drawn between the condition of necessity and that of proportionality, because they were both derived by the Court from the reasonableness requirement appearing in sec. 34P of the Penal Law, cited above (ibid., para. 14, per Justice E. Arbel). At the same time, it was noted there that, sometimes, the distinction between the two may be of significance, for there may be a means that is necessary but not proportionate, and vice versa (see also: CrimA 6147/07 Avisidris v. State of Israel [16], paras. 32-33, per (then) Justice M. Naor; CrimA 8133/09 Mizrahi v. State of Israel [17], para. 9; Sangero, at p. 203).

44.       The burden of proof in self-defense, as for all other defenses to criminal responsibility, is set out in secs. 34E and F, and 34V(b) of the Penal Law.

Section 34E of the Penal Law provides as follows:

34E.     Unless legislation provides otherwise, any act shall be assumed to have been committed under conditions that do not include a restriction of criminal liability.

Section 34V(b) of the Penal Law provides as follows:

34V(b)    If reasonable doubt arose, whether there is a restriction on criminal liability, and if the doubt has not been removed, then the restriction shall apply.

The words of Justice M. Cheshin are apt here:

The “defenses” constitute a type of sleeping element in the penal system, that remain “asleep” until they are woken from their slumber, akin to: “Do not wake and do rouse them until you need them.”[1] This applies to all the “defenses” enumerated in Chapter Five-A, Article Two, of the Penal Law … however, if a claim of “defense” to criminal responsibility is raised, the provisions of the “defense” awaken  from their slumber, and in rising, change their surroundings and negate the criminality of the act. In this event, the “defense” reveals itself as an entity with direct influence – both concerning the presumption of innocence and concerning the question of whether the prosecution raised the burden of proof imposed on it (from the beginning). Thus, if a “defense” to criminal liability is claimed, and a reasonable doubt arises – and is not removed – as to whether that “defense” applied to the event or not, then the defense will apply (sec. 34V(b)). In other words: in that case the defendant will be presumed innocent, and the prosecution will not be deemed to have raised the burden of proof that it bears (from the beginning). Conclusion: The defendant will be acquitted (see: CrimA 4675/97 Rozov v. State of Israel [18], 369).

45.       It seems to me that, in light of the factual basis for the decision in the present appeal, as described in para. 39 above, the Appellant has not succeeded in establishing a reasonable doubt as to whether the fatal event presented the conditions required to base a claim of a defense to criminal responsibility due to “self-defense”. As stated, the Decedent threatened the Appellant that he would beat him if he did not pay him within a day or two. From the formulation of the alleged threat, it is clear that even if the Decedent had intended to carry out the threat, he was not expected to attack the Appellant that same evening (compare: Kleiner v. State of Israel [12], para. 11; Somekh v. State of Israel [14], para. 165). As for the possibility that the Decedent would commit another act of sodomy, it appears that such an assault, too, did not involve an element of imminence, for the Appellant admitted, as stated, that he attacked the Decedent when the latter began closing his pants, and therefore, it does not seem reasonable that he was about to attack him sexually at that time. In view of this, it is clear that the Appellant was not facing imminent danger to his body, either of being beaten or sexually assaulted. Hence, his actions were not immediately necessary to repel the attack. The absence of the elements of necessity and immediacy is sufficient to dismiss the possibility that the Appellant acted out of self-defense in the “classical” sense, and therefore I do not see the need to elaborate on the other elements of self-defense.

 

The Dromi Affair

46.       As stated, counsel for the Appellant argues that leniency should be exercised with regard to the requirements of self-defense in the present case, in which the Appellant was facing possible danger of bodily harm, as it was in the case of Dromi, in which there was danger of harm to property alone. In his view, the circumstances of the present case indicate that the Appellant acted out of self-defense according to the lenient requirements as aforesaid. As will now be explained, I am of the opinion that this argument, too, must be dismissed.

47.       The. Dromi case involved the owner of a farm who shot two intruders who broke into his fields during the night. One of the two intruders was killed and the other wounded. In the course of the proceedings in the case, the legislature introduced a legislative amendment and added a special provision – sec. 34J1 of the Penal Law (hereinafter: the exception of defense of a home). In view of the said statutory provision, the District Court decided, by majority opinion, to acquit the defendant. I will elaborate on this below.

48.       Section 34J1 of the Penal Law provides as follows:

34J1(a)   No person shall bear criminal liability for an act that was immediately required in order to repel a person who broke into or entered – with the intent to commit an offense – his or another person’s residential premises, business premises or fenced agricultural farm, or a person who attempts to break in or to enter as aforesaid.

(b)        The provision of subsection (a) shall not apply if –

(1)       under the circumstances of the case the act was obviously not reasonable for the purpose of repelling the person who breaks in or enters;

(2)       the person caused the break-in or the entry by his unacceptable conduct, foreseeing in advance the way matters would develop.

(c)        For the purposes of this section, “agricultural farm” includes grazing areas and areas used for the storage of farm equipment and vehicles on the agricultural farm.

From the language of this provision we learn that the section provides a defense to criminal responsibility for a person who acted in order to repel an intruder into residential or business premises, or his fenced agricultural farm, according leniency with respect to some of the requirements of regular self-defense (for elaboration see: State of Israel v. Dromi [43], para. 6, per Judge R. Barkai; Somekh v. State of Israel [14], para. 173; Rabin & Vaki, vol. 2, at pp. 830-840). The purpose of the said amendment was explained in State of Israel v. Dromi [43] as follows:

A review of the Explanatory Notes to the Law (Bills for Knesset Law 208, of 14 Adar 5768, Feb. 20, 2008, p. 196) and to the deliberations held in the Constitution, Law and Justice Committee in regard to the said proposal (Protocol 495 of the Committee session of March 11, 2008, and Protocol 561 of the Committee session of Junew 11, 2008) indicates that the legislature sought, by this new defense, to distinguish between the circumstances of self-defense outside of a person’s house or his yard, and circumstances of self-defense within a person’s premises, and in fact expanded the defense when a person is in his house, on his premises, in the sense that it sought to accord special treatment to a person’s residence and strengthened and expanded the right of a person to protect his life and his property in his home, which is his castle (para. 6 per Judge R. Barkai; emphasis added – H.M.).

My colleague, Justice D. Barak-Erez, discussed the emphasis on the defense of residential premises in one of the cases, saying as follows:

One may comment that the position of the District Court comports with the approach that emerges from U.S. case law (see: Miriam Gur-Arye and Gallia Daor, A Special Defense for Protecting Home, Farm and Business Premises: Following the Dromi Case, 13 Mishpat Umimshal (2010) 141, 151 (Hebrew) (hereinafter: Gur-Arye & Daor), and – without establishing a hard and fast rule – is even consistent with the appropriate, cautious approach to the interpretation of defense of homes. The reason for this does not lie in an approach that sanctifies exclusive property rights in the residential home itself … the emphasis is apparently different: in a space to which special permission to enter is not required, or such permission can be given by many, and even without prior coordination, the sense of danger and threat that can be attributed to another person’s very presence in that place is significantly weakened (see: CrimA 1964/14 Shimshilshvili v. State of Israel [19], para. 38).

From the above, it emerges that the legislature thought it proper to be lenient regarding the requirements for self-defense when a person’s home is involved, as opposed to self-defense that occurs outside his home. The basis for this distinction drawn by the legislature appears to derive, inter alia, from the assumption that normally, a person who breaks into the home of another endangers the people who are at home. Application of the lenient requirements of sec. 34J1 of the Penal Law to the present case is, therefore, contrary to the language of the section and its purpose, and therefore, I do not accept the argument of counsel for the Appellant on this matter.

49.       Over and above what is strictly necessary, I will point out that even if we were to be lenient in regard to the requirements of self-defense, and were to apply the requirements of sec. 34J1 of the Penal Law, mutatis mutandis, to the case at hand, this would not help the Appellant, for the element of immediacy and necessity, which, as stated, were not present in this case, are also included in the framework of the said section.

 

Putative Self-Defense

50.       Counsel for the Appellant argues, alternatively, that the circumstances of the case justify recognition of the special defense that has been recognized in the case law and termed: “putative self-defense”. This defense derives from a combination of sections 34J and 34P of the Penal Law, cited above, together with sec. 34R of the Law, which treats of misinterpretation of the situation. Section 34R states as follows:

34R.    (a)        If a person commits an act, while imagining a situation that does not exist, then he shall bear criminal responsibility only to the extent that he would have had to bear it, had the situation really been as he imagined it.

(b)       …

Combining the above sections shows, therefore, that a person who claims to have acted out of “putative self-defense” will bear criminal responsibility only to the extent that he would have borne it had the situation actually been as he had mistakenly imagined it to be (see: the Altgaus case [13], para. 16, per Justice E. Arbel; Rabin & Vaki, vol. 2, at pp. 841-842). In other words, the existence of the conditions of self-defense should be examined in view of the defendant’s mistake, as long as the mistake was genuine. Only such a mistake will enable an examination of recourse to “putative self-defense”. But note: the defendant’s mistake need not be reasonable, even though the reasonableness of the mistake will help in assessing how genuine it is (see: the Altgaus case [13], para. 16, per Justice E. Arbel, and the references cited there).

51.       From the general to the specific:  In considering all the circumstances in this case, and especially in view of the fact that the Decedent, on the night of the event, took the Appellant to a dark, isolated place, after having sexually molested him twice in the preceding weeks, the Appellant’s argument that he imagined that the Decedent was about to commit another act of sodomy upon him is not inconceivable, even though the Decedent had begun to do up his pants at that time. Therefore, I am prepared to assume that at the initial stage, which was the time when the strangling began, the Appellant genuinely thought that he was facing immediate danger of unlawful attack by the Decedent, such that he believed that he was exposed to real bodily harm, and that the act of strangling was necessary in order to prevent the attack. I am also of the opinion that, at that time, the Appellant did not bring about the attack by his own wrongful conduct. Parenthetically, I will further assume in the Appellant’s favor that it may have been possible to shorten the duration of the strangling, at the level of quantitative necessity, but in view of the Appellant’s statement in his first police interrogation whereby he did not release his hold for fear that the Decedent would kill him, I accept that in this element, too, there was a genuine mistake on the part of the Appellant.

Notwithstanding the above, it appears that, already at the first stage, the possibility of retreat was available to the Appellant before he began strangling the Decedent, when the Decedent was urinating with his back to him. Under cross-examination in the course of his testimony in the District Court, the Appellant was asked why he did not run away at that stage, and his response was: “If I had run away, I would have been nervous about where I would get the NIS 1000.” The Appellant’s response attests to the fact that he did not feel that he could not escape at that stage and avoid the immediate threat facing him, but that he thought that escaping would cause him problems  with the Decedent in the future. Hence, also in terms of the situation as the Appellant perceived it, the option of running away from the immediate threat was available to him, and therefore the “element of qualitative necessity”, which is required as part of the claim of self-defense as a defense to criminality, was not present, even in the eyes of the Appellant.

Moreover, the way in which events continued to unfold negates the possibility of grounding a claim of “putative self-defense”, as  I will explain below.

52.       As noted, in his first statement, the Appellant said that after the strangling, the Decedent fell to the ground, breathing and shaking, and at a certain stage he stopped moving. The Appellant explained that he understood from this that the Decedent was injured, but had not yet died. This is consistent with the pathology report, which determined that the Decedent was killed by the head injury caused by the rock, and not as a result of strangulation. Hence, from the moment at which the Appellant stopped strangling the Decedent (the strangling continued some seven minutes, according to the Appellant’s estimate), at the end of which the Decedent fell to the ground and began shaking, all immediate threat was removed, as the Appellant saw, for at that time it was clear that the Decedent was no longer capable of hurting him on that occasion. Thus, although the Appellant understood that the immediate threat had abated, he did not desist from performing acts of “defense”. Rather, at that stage, he picked up a rock and began hitting the Decedent on the head, until he brought about his death (cf: CrimA 8687/04 Khilef v. State of Israel [20], para. 11). As such, the Appellant, in his own eyes, carried out the said acts in the absence of real danger of unlawful attack on the part of the Decedent, and in any case it was not necessary to hit the Decedent with a rock in order to prevent such an attack.

53.       Regarding the possibility of recognizing the Appellant’s actions as self-defense, even though he continued hitting him after he fell to the ground and was neutralized, we permitted the parties to submit references from foreign legal systems after the hearing. From the material submitted to us by the parties, it appears that my above conclusion comports with comparative law. Thus, for example, the Respondent cited a judgment of the Supreme Court of North Carolina in the U.S., describing the case of a woman who killed her husband – who had abused her physically, verbally and psychologically over many years – while he was sleeping. The Supreme Court dismissed the defendant’s claim that she acted in self-defense, mainly because there was no immediate threat at the time of the killing. The following appeared in the judgment (hereinafter: the Norman case):

The right to kill in self-defense is based on the necessity, real or reasonably apparent, of killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands.  (see: State v. Norman [44]; emphasis original – H.M.).

And further:

The evidence in this case did not tend to show that the defendant reasonably believed that she was confronted by a threat of imminent death or great bodily harm. The evidence tended to show that no harm was “imminent” or about to happen to the defendant when she shot her husband (at p. 261).

54.       Counsel for the Appellant countered with an American case that also dealt with a battered wife, who killed her husband after she experienced, as the Court called it, “a night of domestic terror”, which included several hours of continuous physical beating, sexual abuse, and threats to her life and the lives of her children. In this case, the Supreme Court of the State of West Virginia decided to acquit the defendant of criminal responsibility, even though she killed her husband when it seemed that he was sleeping, or had passed out on the sofa, since it held that she acted in putative self-defense (see: State v. Harden [45] (hereinafter: the Harden case)). The Court there explained, inter alia, that the circumstances of the case point to the reasonable possibility that the defendant believed that although her husband was asleep on the sofa, she was facing imminent danger to her life and the life of her children (at pp. 812-813). The Court also ruled that a reasonable person, too, had he been in her situation, would have believed that an imminent threat existed (at p. 815).

55.       Upon reading the said judgment, we see that even if we were to apply the criteria adopted there to the case at hand, this would not lead to the conclusion that the Appellant should be exempted from criminal responsibility. As noted above, the Appellant’s own words indicate that he was not facing imminent danger from the Decedent from the moment that the late Yaron Eilon fell to the ground after being strangled, and that even the Appellant himself did not believe otherwise. In this, the circumstances here differ from those described in the Harden case [45], and are more similar to those in the Norman case [44].Therefore it cannot be said that the Appellant acted out of putative self-defense.

56.       To summarize this section: the circumstances of the present case do not show that the Appellant acted in self-defense, in the classical sense, inter alia, in view of the lack of imminence of the danger facing the Appellant, insofar as it even existed. This conclusion holds even were I prepared to be lenient with respect to the criteria for self-defense, and to equate them to those relating to defense of one’s home.

Neither does consideration of the special defense of “putative self-defense” lead to the conclusion that the Appellant should be exempted from criminal responsibility. Although I was prepared to assume that the Appellant imagined that he was about to experience further sexual abuse, and I further assumed, in his favor, that he did not release his stranglehold on the Decedent for fear that the Decedent would attack him, it appears that the elements of self-defense are not present in the circumstances of the case, in view of the actions of the Appellant after the Decedent had fallen to the ground. The significance of this is that even had the situation been as the Appellant perceived it to be at the time of the fatal event, a claim of self-defense is not available to him, and he is criminally responsible.

57.       After having decided on the matter of the defenses to criminal responsibility of self-defense and putative self-defense, I will now proceed to consider the arguments of the Appellant relating to the element of “absence of provocation” as part of the mental element of the crime of “premeditated” murder. I will begin the analysis with a short background to the homicide offenses in Israeli law, and the proposed reform that is currently under consideration.

 

The Law of Homicide in Israel

58.       The Penal Law includes, at present, three types of homicide offenses: causing death by negligence – an offense which is punishable by up to three years imprisonment (sec. 304 of the Penal Law); manslaughter, an offense that relates to cases of causing death with mens rea, and that carries a maximum penalty of 20 years imprisonment (sec. 298 of the Penal Law); and murder, an offense that carries a mandatory penalty of life imprisonment (sec. 300 of the Penal Law), and which is divided into several particular situations. Of these situations, relevant here is the situation of causing death with “premeditation” (sec. 300(a)(2) of the Penal Law). Alongside the offense of murder is a provision that allows for a reduced penalty in certain circumstances (sec. 300A of the Penal Law). In the framework of the present case, mention should be made of sec. 300A(c) of the Penal Law, which permits the imposition of a reduced sentence when “the defendant was in a state of severe mental distress, because of severe or continued tormenting of himself or of a member of his family by the person whose death the defendant caused.”

Besides these offenses, there is also the offense of attempted murder (sec. 305 of the Penal Law), and several particular offenses of causing death that are not relevant in our context.

59.       In 2006, a judgment was handed down in CrimFH 1042/04 Biton v. State of Israel [21] by a panel of seven justices. In the main opinion, President A. Barak reviewed the existing laws of homicide in the Penal Law, and particularly the offense of “premeditated” murder. At the end of the judgment, President Barak called upon the legislature to re-examine the existing laws of homicide, saying: “I hope that a comprehensive examination of the laws of homicide will be undertaken as soon as possible in Israel, and that the government and the Knesset will consider this complicated issue with appropriate speed” (para. 68). The other justices on the bench concurred with President Barak.

60.       Following the above comment, in 2007, the then Minister of Justice, Professor Daniel Friedman, appointed a committee chaired by Professor Mordechai Kremnitzer, which was charged with “examining the elements of the homicide offenses” (hereinafter: the Committee). The Committee discussed the need to amend the offenses of murder and manslaughter, and the creation of a different hierarchy between them. In August 2011, the Committee submitted its recommendations for a redrafting and redefinition of the chapter on the offenses of Causing Death in the Penal Law, in the framework of which the following (non-negligent) homicide offenses are defined: murder in aggravated circumstances (carrying a mandatory sentence of life imprisonment), murder (carrying a maximum sentence of life imprisonment), causing death in circumstances of reduced responsibility (with a maximum sentence of 20 years imprisonment),  reckless homicide (with a maximum sentence of 12 years imprisonment), and causing death upon request due to a severe medical condition (which carries a maximum prison sentence of five years). The recommendations of the Committee were presented in the Penal Law (Amendment no. 119)(Offenses of Causing Death) Bill, 5774-2004, and recently into the  Penal Law (Amendment no. 124)(Offenses of Causing Death) Bill, 5775-2015 (which is basically identical to the version proposed in Amendment no. 119, except for the non-inclusion of a special offense of causing death due to a severe medical condition) (hereinafter: Bills to Reform the Laws of Homicide). Because these proposals have not yet gained the status of a law, they do not apply to the present case. Nevertheless, I will address the recommendations of the Committee and the said amendments below, insofar as I find them to be relevant to our matter for the purpose of comparison.

61.       Having provided a brief background to the laws of homicide in Israeli law and to the proposed reforms to these laws, I will now proceed to examine the arguments of the Appellant regarding the offense of murder. As stated, counsel for the Appellant argues that if it is decided that the Appellant is not exempt from criminal responsibility due to the claim of self-defense, he should be convicted of the offense of manslaughter, and not of murder. According to him, the mental element required to ground the offense of “premeditated” murder was not present. The Appellant’s main argument in this context concerns the condition of absence of provocation. I shall address this below.

Murder or Manslaughter?

62.       The Appellant was convicted of “premeditated” murder, under sec. 300(a)(2) of the Penal law, which states as follows:

300(a)  If a person does one of the following, then he shall be accused of murder, and is liable to life imprisonment, and only to that penalty:

…

(2)        he caused the death of any person with premeditation.

63.       The actus reus of the offense of murder is causing a person’s death. The Appellant does not dispute that this element is present here.

64.       The mental element required in the framework of the offense of murder is “premeditation”, which is defined in sec. 301 of the Penal Law as follows:

301. (a)   For the purposes of sec. 300, a person who killed a person shall be deemed to have killed him with premeditation, if he resolved to kill him and killed him in cold blood without any provocation immediately before the act, under circumstances in which he was able to think and to understand the result of his actions, and after he prepared himself to kill him or prepared the instrument with which he killed him.

(b)   In respect of the decision and preparation to kill, it is immaterial whether he resolved to kill that person or any one – specified or unspecified – member of his family or of his race.

(c)        In order to prove premeditation, it is not necessary to show that the defendant was in a certain state of mind for any period of time before the offense was committed or that the instrument with which the offense was committed was prepared at a certain time before the act.

According to the above section, “premeditation” comprises three components: a decision to kill, preparation, and absence of provocation. The additional argument of the Appellant concerns, as stated, the component of absence of provocation. According to counsel for the Appellant, an examination of the entire set of circumstances of the night of the event and the period that preceded it leads to the conclusion that the actions of the Appellant were carried out as a reaction to provocation, or, at least, to “cumulative provocation”. I will now address this.

Absence of Provocation

65.       The absence of taunting (which is also called “absence of provocation”) is the central question in the framework of examining “premeditation”, and it carries the main “burden” for the purpose of the distinction between ordinary “intention” (which is not sufficient for the purpose of a conviction for murder, but only for manslaughter) and “premeditation”, which is required to ground the offense of murder under sec. 300(a)(2) of the Penal Law (see the Biton case [21], para. 20, per President A. Barak). The case law holds that a decision on the question of the existence of provocation requires an examination of two cumulative criteria: the subjective provocation test, and the objective provocation test, and only if it is found that there was provocation according to both these tests is it possible to rebut the existence of the element of “absence of provocation” in a manner that justifies downgrading the offense from murder to manslaughter (see, e.g., the Biton case [21], para. 20, per President A. Barak; CrimA 8107/10 Ezer v. State of Israel [22], para 26; see also: Yaakov Kedmi, On Criminal Law (Part 3) 1140 (2006) (Hebrew) (hereinafter: Kedmi).

66.       Although this is a negative element, the burden of proving the element of “absence of provocation” falls upon the prosecution, but it has been decided that a “lesser degree of proof” is required (see: CrimA 28/49 Zarka v. Attorney General [1950] IsrSC 4, 504, 532). In this context, in CrimA 6167/99 Ben Chelouche v. State of Israel [23] the Court also stated as follows:

The burden of proving the element of absence of provocation lies with the prosecution, but due to this matter being within the special knowledge of the defendant, if he does not present evidence as to the possible existence of provocation, and if there is no support in the evidence for the possible existence of provocation, the prosecution fulfils its obligation by bringing evidence of the causing of death (at p. 595; see also: Kedmi, at p. 1135).

The discussion of the relevant tests for the purpose of the element of “absence of provocation” will proceed in two stages: immediately below I will examine the subjective test, and in paras. 94-102, below, I will focus on the objective test, which is relevant mainly to the analysis that will be undertaken there.

 

The Subjective Test

67.       “Absence of provocation” has been defined in the case law as “a situation of crystallization of an intention to kill out of careful consideration, level-headedness,  composure and self-control on the part of the defendant (see: the Biton case [21], para. 25, per President A. Barak). The existence of provocation does not necessitate a state of mind that negates the intention to kill; rather, it assumes an awareness that death will be caused and an aim to cause it, but requires that the intention to kill was formed spontaneously, as a result of taunting on the part of the victim, and without the defendant having exercised discretion. Accordingly, insofar as it is determined that there was provocation in this case, the offense should be changed from murder to manslaughter, for even though there was the intention to kill, it was not “premeditation”.

68.       The subjective provocation test is anchored in sec. 301 of the Penal Law, which states, in the framework of the mental element of premeditation, that the defendant killed the victim “… in cold blood, without any provocation immediately before the act, under circumstances in which he was able to think and to understand the result of his actions...”.  From the language of the section, we see that provocation requires taunting, which led the defendant “to lose self-control, such that he committed the fatal act without thinking about the consequences of his action” (see CrimA 369/69 Benno v. State of Israel [24], at p. 577; see also, e.g., CrimA 418/77 Bardarian v. State of Israel, [25], at p. 11; the Biton case [21], para. 22, per President A. Barak). Justice Goldberg defined the test of subjective provocation as a situation in which:

The defendant was able to evaluate his acts and the fatal outcome, and he indeed desired that outcome, but in his turmoil, his mental restraints were weakened to the point where he did not morally  evaluate the fatal outcome, and did not elevate the value of the victim’s life to the level appropriate to it as a rational, composed person (see: CrimA 33984 Rabinowitz v. State of Israel [26], at p. 262 – emphasis added – H.M.; See also: CrimA 1354/03 Dakar v. State of Israel [27], at p. 95; the Biton case [21], para. 24, per President A. Barak).

69.       From the above, we learn that the absence of provocation was intended to distinguish between a cool-headed decision to kill the victim, and a decision to kill without weighing the moral consequences of the act of killing. This is the main emphasis in the distinction between “premeditation”, in which the perpetrator calmly considers the moral consequences of his actions, and spontaneous intention, in which there is, indeed, a decision to kill, but it is not accompanied by moral assessment of the ramifications of the actions.

70.       A similar distinction was also drawn in the literature following the decision in the Biton case [21]. On this subject, the scholars M. Kremnitzer and L. Levanon wrote as follows:

The second characteristic of the subjective dimension is that of absence of assessment. The opinion of President Barak in the Biton case places the dimension of absence of assessment in the center, and divides it into characteristics from which the opposite characteristics of premeditation are reflected well: absence of consideration and composure, thought about the consequences, moral assessment of the action and of its consequences.

The characteristic of absence of assessment is, indeed, the dominant characteristic of the subjective dimension in the framework of the conception of provocation as a distinguishing factor between premeditation and spontaneous intention. The importance of the characteristic of absence of assessment, including its integration into the doctrine of provocation in general, lies in its contribution to clarifying the distinction between premeditation and spontaneous intention: by way of juxtaposition to the lack of assessment in the general framework of the paradigm of provocation, one can easily discern that premeditation includes cognitive elements of paying attention – to however small a degree – to the moral significance of causing death; the internalization of the true essence of the act of killing, not on the level of a slogan or headline, and of the depth of its ramifications (see: Mordechai Kremnitzer and Liat Levanon, On the Element of Absence of  Provocation in the Definition of “Premeditation” in the Wake of CrimFH 1042/04 Biton v. State of Israel, David Weiner Volume – On Criminal Law and Ethics 547, 577-578 (Dror Arad Eilon, Yoram Rabin and Yaniv Vaki, eds., 2009) (hereinafter: Kremnitzer and Levanon)).

Note: The objective test and its application in this matter will be addressed, as noted, in paragraphs 94-102 below.

71.       The above applies primarily in the case of “regular provocation” (which is sometimes called “spontaneous provocation”). That does not seem to be the type of provocation in the case at hand, for the actions of the Decedent close to the time of the killing – which included “fining” the Appellant, threatening to beat him if he did not pay the “fine” within a day or two, and taking the Appellant behind the kiosk, at which time the Decedent unzipped his pants in order to urinate (while standing with his back to the Appellant) – do not amount, in their intensity, to taunting, as required in the framework of this element. At the same time, as stated, counsel for the Appellant argues that even if it be decided that the actions of the Decedent close to the time of the killing indeed did not amount to taunting for the purpose of “spontaneous provocation”,  in this case one must consider the element of  cumulative provocation ‒ a creation of the case law ‒ in view of the continued persecution of the Appellant by the Decedent, which included humiliation, extortion, threats and acts of sodomy. I will address these below.

Cumulative Provocation

72.       The case law has recognized the possibility of “cumulative provocation” in cases of continued, accumulating tormenting by the victim of the offense. On this subject, it was decided in the Eliabayev case [28]  as follows:

Situations are possible in which a person is subject to ongoing, accumulating provocation, causing an ever-increasing feeling of rage and frustration such that on the basis of these feelings, and following an additional act of provocation, a person commits an act of homicide. Even in these circumstances, the question that arises is whether the last act of provocation was of sufficient magnitude to be the sole cause of the defendant losing his self-control, following which he was led to commit the act. The preceding acts of provocation are examined only in relation to the degree that they affected the psychological state of the defendant leading up to the time of the last act. The question that arises is whether the prolonged process of provocation had a gradual effect on the formation of the idea of killing on the part of the defendant, for in that case it is not compatible with the requirement of spontaneity and suddenness of the reaction that is required for recognition of provocation that negates premeditation. As opposed to this, it is possible that the last act of provocation is of such magnitude and character that it, in itself, brings about a sudden reaction of loss of self-control on the part of the defendant, when the acts of provocation are liable to affect the severity of the last provocation. And thus, in certain situations, it is possible to regard the preceding stages of provocation as cumulative circumstantial events that are liable to create a background of psychological readiness for the provocative effect of the last act of taunting as long as that act, alone, led to the prohibited act out of loss of control and spontaneity (at pp. 475-476; emphasis added – H.M.; see also: Kedmi, at pp. 1152-1153).

In effect, this is an expansion of the requirement of the existence of taunting, which is anchored in sec. 301 of the Penal Law. According to the above doctrine, in appropriate circumstances, the element of taunting must be examined as part of a whole set, such that it includes previous acts of taunting that were not perpetrated close to the time of the killing. At the same time, in CrimA 686/80 Siman Tov v. State of Israel [29], at p. 268,  it was decided that recognition of the claim of “cumulative provocation” was subject to two cumulative conditions:

(a)        That the decision to kill had not already formed in the mind of the defendant beforehand;

(b)        That immediately prior to the act, there had been an additional provocation, which was of independent status and intensity (sometimes called the “trigger”).

In this context, in CrimA 7707/11  Laham v. State of Israel  [30] the appeal of the defendant, who had been convicted of murder for shooting and causing the death of the decedent was denied. The offense was committed against a backdrop of sexual abuse of the appellant’s sister by the decedent, and after the appellant heard people sitting in a café talking about similar subjects. This Court dismissed the appellant’s claim of provocation raised in that case, under those circumstances, in view of the fact that the sexual abuse had occurred many years prior to the appellant’s acts, and there had been no concrete provocation on the part of the decedent or any other person. My colleague Justice U. Shoham said as follows in that case:

Like the lower court, I too am of the opinion that the element of absence of provocation, which is required to prove the mental element of the crime of murder under sec. 300(a)(2) of the Penal Law, was satisfactorily proved. The Appellant recounted that on the day of the event, he was sitting in a café in the village, and he heard the people in the café talking about rape and about prostitution, and he said that “this bothered me psychologically, I left the place and started to wander around the village” (p. 311 of the transcript, lines 25-26). The Appellant also said that in the course of his wanderings in the village, he saw the Decedent getting out of his car and walking towards his home. Even if we proceed from the assumption that when he saw the Decedent, the Appellant’s anger was rekindled, and he felt rage towards him because of what had happened in the past, these acts, which happened many years before the shooting, cannot support a claim of provocation. The decision to take revenge on the Decedent formed in the appellant’s mind without it having been preceded by any act of taunting on the part of the Decedent or of anyone else, and the accumulation of rage and anger against the Decedent over the years cannot be regarded as fulfilling the requirement of subjective and objective provocation. Accordingly, the obvious conclusion is that there was no act of provocation that led the appellant to commit the shooting (para. 56; emphasis added – H.M.).

73.       To sum up the above, determining the existence of “cumulative provocation” that negates the mental element of “premeditation” necessary to the the crime of murder, is contingent upon the existence of cumulative, ongoing taunting on the part of the victim, upon an additional act of taunting having been committed (“trigger”) close to the time of the killing, and upon the entire set of provocations having caused the defendant to lose his self-control so that he could not think  and could not understand the severe moral consequences of his actions. The “trigger” must have independent status and force, but at the same time, its force is liable to be less than that required as a basis for taunting in a situation of “spontaneous provocation”. Similarly, the decision to kill must have formed in the defendant’s mind only subsequent to the “trigger”, and not beforehand.

 

Comparative Law

74.       At this stage, I will to examine the principles prevailing in English law on the present subject of cumulative provocation. In England, the subject is arranged in The Coroners and Justice Act 2009 (c. 25) (hereinafter: the new English Law), which changed the traditional defense of provocation in its previous formulation that had prevailed for generations in the Common Law (for background and development of the legislation in this context see: David Ormerod & Karl Laird, Smith and Hogan’s Criminal Law 583-586 (2015) (hereinafter: Ormerod & Laird)).

75.       The new English Law today includes a “partial defense” due to loss of self-control which is caused by a “qualifying trigger”. This “qualifying trigger” applies in relation to the crime of murder in that acceptance of the defense reduces the charge from the crime of murder to the crime of manslaughter. Ormerod and Laird discussed the relationship between self-defense and the “partial defense” due to loss of self-control, explaining as follows:

If D has lost his self-control, self-defense is not available, but LOSC [loss of self control] may be. If D has used excessive force, the complete defense of self-defense will fail, but D may still be able to rely on LOSC; the excessive amount of force being explicable by reference to the “loss of self control” (Ormerod & Laird, p. 516).

76.       Section 54 of the new English Law, as relevant to our matter, is formulated thus:

54.  Partial defense to murder: loss of control

(1)        Where a person (“D”) kills or is a party to the killing of another (“V”),  D is not to be convicted of murder if ‒

(a)        D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,

(b)       the loss of self-control had a qualifying trigger, and

(c)        a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D

…

(3)        In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint.

(4)       Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.

(5)        On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

(6)        …

(7)        A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.

77.       Contrary to the legal situation preceding it, the new English Law clearly states in sec. 54(2) that the requirement of loss of self-control need not comply with a requirement of immediacy:

For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.

78.       Section 55 of the new English Law defines the qualifying “trigger” for the existence of this partial defense, and in what is relevant to our subject it states:

55        Meaning of “qualifying trigger”

(1)        This section applies for the purposes of section 54.

(2)        A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.

(3)        This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.

(4)        This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which—

(a)        constituted circumstances of an extremely grave character, and

(b)        caused D to have a justifiable sense of being seriously wronged.

(5)        This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).

(6)        In determining whether a loss of self-control had a qualifying trigger—

(a)        D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;

(b)        a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;

…

79.       In the case of R v. Dawes [46], the Court of Appeal recognized the possible cumulative impact of incidents that preceded the crime, allowing for a time lapse between the defendant’s acts and the conduct of the victim (this fact is particularly apt in relation to the crime of violence within the family, where loss of self-control is liable to occur due to a cumulative effect). It decided as follows:

A reaction to circumstances of extreme gravity may be delayed. Different individuals in different situations do not react identically, nor respond immediately. Thus for the purposes of the new defence, the loss of control may follow from the cumulative impact of earlier events. For the purposes of this first ingredient, the response to what used to be described as “cumulative provocation” requires consideration in the same way as it does in relation to cases in which the loss of control is said to have arisen suddenly. Given the changed description of this defence, perhaps “cumulative impact” is the better phrase to describe this particular feature of the first requirement (para. 54).

English case law demanded that there be a causal connection between the loss of self-control and the trigger, and also that the existence of the trigger be examined according to an objective criterion (see: R v. Gurpinar & Kojo-Smith [47]). It was explained that in establishing whether the requirement of loss of self-control was indeed met, the nature of the conduct created by the trigger, the circumstances of the defendant, and the passage of time between the trigger and commission of the offence must be examined. The English literature clarified that the time that elapsed between the trigger and the commission of the offence still remained an important consideration, but it was no longer essential that the gap be short (see: Ormerod & Laird, at pp. 584-585). The demand for a partial defense due to loss of self-control is based on the fact that the defendant is a person with a reasonable level of restraint and tolerance (see: sec. 54(1)(c) of the new English Law). As such, the amount of time available to the defendant to think and to “cool down” between the trigger and committing the offence is likely to be significant (see: Ormerod & Laird, ibid.).

80.       The defendant in R v. Humphreys [48] – a judgment to which the legal situation preceding the enactment of the new English Law applied – was a 17-year-old prostitute whose partner, with whom she had been involved for only a short time prior to the offense, lived, inter alia, off her earnings, and had beaten her on several occasions. On the night of the event, the defendant slit her wrists deliberately for fear that when her partner returned, he would hit her and force her to have sex with him, having previously threatened to do so. When the partner returned to the apartment, he turned to the defendant and said to her that he wants to have sex with her, and prepared himself to do so. When the defendant refused, the partner laughed at her, and said to her that she was unable to commit suicide properly. At this stage, the defendant stabbed her partner to death. The Court of Appeal overturned the conviction of the defendant for the crime of murder, substituting a conviction for the crime of manslaughter, taking into consideration, inter alia, the state of mind of the defendant. The Court decided, inter alia, as follows:

This tempestuous relationship was a complex history with several distinct and cumulative strands of potentially provocative conduct building up until the final encounter. Over the long term there was continuing cruelty, represented by the beatings … immediately before the killing, quite apart from the wounding verbal taunt, there was his appearance in an underdressed state, posing a threat of sex which she did not want … Finally, of course, there is the taunt itself, which was put forward as the crucial trigger which caused the Appellant’s self-control to snap (pp. 1023-1024).

In this case, the partner’s violence constituted an initial trigger, and the threats that he made to the defendant, his demand to have sex with her, and his harsh, mocking reaction to the defendant’s desperation constituted an additional trigger, which in its cumulative impact complied with the  requirement of cumulative provocation (see ibid., at pp. 1023-1023, per Justice Hirst; see also: Tony Storey, Loss of Control: The Qualifying Triggers, Self-Induced Loss of Self Control and Cumulative Impact, 77 J. Crim. L. 189, 192-193 (2013)). Having looked at English law, I will proceed to apply the general principles of the case law to the matter at hand.

81.       From the general to the specific: In the present case, there is no basis for assuming that the Appellant decided to kill the Decedent before the additional taunting on the night of the event, and even the Respondent does not make such a claim. According to the facts of the event, as determined by the District Court, the meeting between the parties was accidental. From this we learn that the Appellant, apparently, did not seek out the Decedent with the aim of killing him, but just happened to meet him, and he decided to kill him just before he began strangling him, or while doing so.

82.       The District Court dismissed the Appellant’s claim as to the existence of “cumulative provocation”, and held in its verdict as follows:

One cannot dismiss the acts of cruelty and humiliation perpetrated by the Decedent on [the Appellant] for a prolonged period before the act of killing. Nevertheless, I did not find that immediately before the act of killing there had been an additional provocation of independent status and force, even in a lesser manner (para. 24).

It further held:

The cruelty of the Decedent towards the [Appellant] and the acts of sodomy that he described, led, with near certainty, to the growing feelings of rage and frustration of the [Appellant] and these affected the [Appellant’s] mood on the night of the events, but, as stated, the financial demands and the threats made by the Decedent as to what would happen if the Appellant did not bring the money cannot be regarded as acts of provocation of independent force and magnitude (para. 24).

From the above, it emerges that the District Court recognized that it could not rule out that there had been ongoing, cumulative provocation on the part of the Decedent in the particular case, which led to feelings of rage and frustration on the part of the Appellant, and affected his mood on the night of the events. At the same time, the District Court was of the opinion that the actions of the Decedent just prior to the act of killing did not constitute provocation of sufficient magnitude in order to create the required “trigger”.

My opinion on this matter is otherwise. As I see it, in view of the acts of cruelty by the Decedent towards the Appellant over a prolonged period preceding the night of the event, what happened on that night just prior to the act of killing indicates that there was provocation, which may not have been of sufficient severity to stand alone as the basis for “spontaneous provocation”, but which was sufficient for the purpose of “cumulative provocation”. I will now explain my reasons for this conclusion.

83.       As already described, according to the factual findings of the District Court, after the Decedent demanded that the Appellant pay him NIS 1,000, he took him to the dark parking lot behind the kiosk, threatened to beat him if he did not pay him that amount within a day or two, and then unzipped his pants and exposed his penis in order to urinate, standing with his back to the Appellant. Such a sequence of actions would not seem, of itself, to amount to “provocation” as a basis for “spontaneous provocation”. Nevertheless, it would appear that an examination of the entire set of acts of cruelty perpetrated by the Decedent towards the Appellant in the period prior to this killing, which included two acts of sodomy in the period preceding the night of the event, points to the possibility of recognizing, under the circumstances, the existence of “accumulated taunting” that is a sufficient basis for “cumulative provocation”. On this issue, my opinion is therefore different from the position adopted by the lower court, inasmuch as the Appellant’s chance meeting with the Decedent on the night of the event, his being taken by the Decedent to an isolated parking lot, where the Decedent demanded, with threats, that he pay him NIS 1,000, while at the same time he was unzipping his pants in order to urinate – in my opinion, all these would seem, in the particular circumstances, to constitute additional provocation close to the time of the killing, of sufficient magnitude to constitute the “trigger” for that cumulative provocation, even in view of the determination of the lower court that the said actions were not accompanied by sexual remarks made by the Decedent .

84.       Having determined that the Appellant was subject to cumulative provocation from the Decedent, and also that the required “trigger” occurred close to the time of the killing, or that at least a doubt exists in this regard, it remains to examine how the Appellant was affected by that “trigger”, and if this caused him to lose his self-control and commit the fatal acts without considering their moral consequences. I shall now discuss this.

85.       In his testimony, the Appellant described his psychological reaction to the above “trigger” as follows: “I saw him pulling up his pants. I saw him from behind. As he was about to turn around, the rage and all the anger, I strangled him” (p. 60 of the transcript, lines 2-3).  And in the course of cross-examination he said: “I strangled him when I was standing and I looked at him, I simply saw all that had happened, particularly the rape. I stand and he takes out his penis and urinates. As he was taking out his penis all kinds of things came to me, my head was spinning” (p. 66 of the transcript, lines 3-6; emphasis added – H.M.).

The above statements may indeed attest to spontaneous loss of self-control on the part of the Appellant, preventing him from understanding the ramifications of his actions. However, as we have said, the trial court chose not to accept what the Appellant said on this matter, and gave precedence to what he said in his first statement. Based mainly on that first statement, the trial court concluded that the Appellant “acted in a calculated manner and understood the consequences of his actions in real time.” As pointed out above, my conclusion in this context is different from that of the District Court, despite and irrespective of what the Appellant said in the framework of his testimony, which was dismissed by the trial court. I will begin by saying that in my opinion, the Appellant did, indeed, form a decision to kill the Decedent, but a reasonable doubt arises as to whether the Appellant was acting in a state of composure, or whether he acted out of a loss of self-control as a result of the accumulation of acts of physical, sexual, verbal and psychological cruelty inflicted on him by the Decedent, and of the actions of the Decedent close to the time of the killing, which prevented him from considering the moral consequences of his actions. Below I will explain the reasons for my position.

86.       As noted above, the Appellant told about the sexual abuse by the Decedent only in his third police statement. As I wrote, this does not mean that one may absolutely refrain from using what he said in the preceding statements, but one must be cautious in considering parts of those statements that are liable to be affected by the non-disclosure of the relevant sexual background. Among those, we should include what was said about the Appellant’s psychological reaction to the “trigger”, for how could the Appellant explain the loss of self-control that derived from his being taken (without resisting) to an isolated parking lot and seeing the Decedent open his pants and expose his penis, without disclosing the that he had been sexually abused by the Decedent in the preceding weeks?

87.       In view of the above, one must be cautious in relation to what the Appellant said concerning his psychological reaction to the “trigger”, and one must try to learn about this reaction, insofar as possible, from everything that the Appellant said, from the sequence of events, and from external evidence.

88.       In my view, the sequence of events in the present case gives rise to a reasonable doubt as to whether the Appellant’s actions were carried out in “cold blood”. As already described, after the strangulation, once the Decedent fell to the ground, the Appellant hit him with a rock and, according to the pathologist’s report, brought about his death. The Appellant said in his first statement that at this stage he understood that the Decedent was dead, and he dragged him. He describes it thus:

Q.        Why did you drag him towards the garbage bin? What was your purpose in dragging him?

A.        He could be seen easily and so I took him towards the garbage bin because the bin hid it a little, so I took him towards the bin.

Q.        Why did you want to hide him?

A.        It was easy to see so … afterwards I already understood that he was dead, so would I leave a body that can be seen easily?

This also emerges from what the Appellant said during the reconstruction at the scene of the killing:

Master Sergeant Shekalim: He was dead. And what did you do at that moment?

Suspect: I dragged him by the feet.

In the reconstruction, the Appellant also described how, after he had finished dragging the Decedent towards the garbage bins, and although he understood that the Decedent was no longer alive, he hit him several more times with the rock:

Master Sergeant Shekalim: … Where did you drag him to exactly?

Suspect: To here. He lay here. Here. Here he lay.

Master Sergeant Shekalim: He lay here?

Suspect: Yes. Give me a moment. He lay here. Here – a brick just like this one, and I hit him several times.

The above statements of the Appellant are supported by photographs from the crime scene in which a curbstone stained with blood can be seen in the area in which, apparently, the strangulation occurred, and another three rocks (which, according to the opinion of the expert on behalf of the Criminal Identification Division, constituted one rock before the attack on the Decedent) next to the garbage bin towards which the Appellant dragged the Decedent.

89.       This sequence of events indicates that the Appellant did indeed intend, at the time of the strangulation, to kill the Decedent. However, the real possibility presents itself that this was a sudden decision, which was not taken calmly, but rather out of an inner turmoil that made him continue hitting the Decedent with the rock even after he understood that he was already dead.

90.       The possibility that the Appellant acted out of a sudden loss of self-control receives support from the pathology report, which stated that on the body of the Decedent “there was a tear in the groin and the penis which had almost certainly been caused after death.” The Appellant was asked about the said finding in the course of his fifth police interrogation, and he responded thus:

Q.        Did you, before the death or thereafter, abuse the [Decedent] in that you intentionally caused a wound to his penis or his groin?

A.        Not intentionally.

…

Q.        Could it be that because you were drunk at the time of the murder, you don’t remember … that you hurt [the Decedent] in the area of his genitals deliberately as revenge for his having sexually abused you weeks before the murder?

A.        I don’t know what to tell you about that, that day was a holiday, Lag Ba’Omer, so I drank here and there and apparently I drank more than I should, so if you say that his genitals were injured, then after I strangled him and he died, then it could be that the rock also got to his genitals because at that time I had all kinds of thoughts and fears (P/8, lines 28-37).

91.       A combination of the pathology report and the above does not constitute evidence of the Appellant causing injury to the Decedent’s genitals in revenge for having been sexually abused by him. However, it may add to the doubt that arises concerning the Respondent’s claim that the Appellant acted calmly and calculatedly. So, too, the nature of the Appellant, who was described as a calm, introverted person who does not normally act violently, lends support to the possibility that his actions were carried out when he was in a state of emotional turmoil, and they were not considered carefully.

92.       From the above, it emerges that although the Appellant was able to physically assess his actions and their fatal outcome, and even wanted this outcome, the possibility exists – and it is not negligible – that the situation he faced, which was similar to a certain extent to the situations that preceded the previous acts of sodomy he experienced, caused a state of turmoil within him in which his psychological constraints were weakened, to the extent that he did not morally weigh up and assess the fatal outcome of his actions.

93.       Interim summary: It appears that in the present case, a reasonable doubt arises with respect to whether there was an absence of provocation according to the subjective test, under the conditions of “cumulative provocation” discussed in para. 72 above. I will now address the other test for deciding on the question of the absence of provocation, which is the objective test.

 

The Objective Test

94.       As stated, the case law has ruled that provocation also requires compliance with the objective test. Over the years, recourse to this test has been criticized, both by judges and by scholars (see: Yoram Rabin and Yaniv Vaki, Criminal Law, vol. 1, 441-443 and the references there (3rd ed., 2014) (hereinafter: Rabin & Vaki, vol. 1)). In the Biton case [21], this Court considered at length the question of whether recourse to the objective test, as one of the components of the element of “premeditation” in the offense of murder, is justified, and it decided that despite the difficulties that arise from introducing an objective criterion as part of the definition of “premeditation”, the criterion should remain in place until such time as the legislature decides to change it (para. 65, per President A. Barak). Indeed, it should be mentioned that in the framework of the Bill to Reform the Homicide Laws, a significant change was made on the subject, in that the element of provocation in its entirety was removed from the definition of the mental element of the offense of murder, and it appears, instead, as a circumstance justifying the downgrading of liability from murder to “killing in circumstances of reduced liability” (see: sec. 301B(a)(1) of the Bill to Reform of the Homicide Laws).

95.       In the framework of the objective test of provocation, one must examine whether an “ordinary person”, had he been in the situation of the defendant, would have been liable to lose his self-control and act in the way that the defendant acted. This criterion is designed to constitute an “ethical constraint intended to impose norms of conduct” (see: CrimA 322/87 Dror v. State of Israel [31], at p. 724), and its purpose was defined at length in the Benno case [24] by President S. Agranat as follows:

It is important to understand that the meaning of the objective test is not that the court must ask itself the question of whether most of the people in the State, had they been in the defendant’s position, would have acted, under the influence of provocation, in the fatal manner in which the defendant acted, for in truth, it must be assumed that most would overcome the effect of the provocation and refrain from a fatal reaction. The question that the court must ask itself, according to the said test, is only whether the provocation directed at the defendant was so serious, in the circumstances of the case, that it must be concluded that most people would have great difficulty not succumbing to its influence,  and would therefore be liable to act in the fatal manner in which the defendant acted (at p. 580; emphasis added – H.M.)

96.       In the framework of the objective test, competing values and principles are balanced. President A. Barak described this balance well:

On the one hand, it is not prepared to recognize the “frailty of human nature” as sufficient reason to negate responsibility for murder in every case of intentional killing in which the provocation led to a spontaneous, sudden reaction; it is not prepared to distinguish between different types of people and thus violate the principle of equality; it is based on the need of members of society to maintain the restraints essential for society. It is not prepared to consider only the loss of control as a result of the provocation, and thus “to ignore any attempt to impose normative conduct and to apply the principle of equality before the law” (Justice M. Shamgar in the Siman Tov case [29], p. 261). On the other hand, it is prepared to take into consideration those special situations of “frailty of human nature” which do not involve a clear anti-social position and which are the result of loss of control following severe provocation that civilized people, too, are liable to be unable to withstand, and to go wrong in their dealing with it (the Biton case  [21], para. 34 per President A. Barak; emphasis original – H.M.).

97.       Counsel for the Appellant argues that the objective test should be “subjectivized” in this case, in the sense that the standard of the “reasonable person” should be replaced by “the reasonable rape victim.” Claims for recognition of subjective features in the framework  of the test for absence of provocation have been rejected in the past by this Court on a number of occasions. Thus, for example, Justice Berenson refused to take into consideration the country of origin, ethnic group or race of the defendant for the purpose of the test for absence of provocation (see: CrimA 46/54 Attorney General v. Segal [32], at p. 434 (hereinafter: the Segal case). Similarly, in CrimA 6580/96 Chicola v. State of Israel [33], Justice M. Cheshin ruled that the term “average Ethiopian” was unacceptable, and that there could be no relaxation of the requirements of the objective test in relation to such a group (for a review of the case law on the question of the subjectivization of the objective test, see: Rabin & Vaki, vol. 1, at pp. 443-447)).

98.       In the Biton case [21], President A. Barak dealt at length with the considerations relating to the subjectivization of the objective test, including a review of comparative law, and concluded that subjective particulars of the defendant ought to be taken into consideration in the framework of this test. However, President Barak expressed concern that departure from the pure format of the objective test is liable to lead to a slippery slope, and thought that the job of determining the “end point” of subjective considerations that may be introduced in the framework of the objective test should also be left to the legislature (para. 68 of his opinion). The other justices on the panel concurred in President Barak’s opinion on this point.

99.       In accordance with the ruling in the Biton case [21],  it appears that “subjectivization” of the objective test for provocation should be avoided, and there should be no departure, at this stage, from the standard of the “reasonable person.” At the same time, I believe that the present case does not require recourse to the standard of the “reasonable victim of a sex crime”, for in my view, the sexual abuse undergone by the Appellant falls within the bounds of the objective test. I will explain.

100.     As stated, the objective test for provocation examines “whether an ordinary person, if he were subject to the situation of the concrete defendant, would be liable to lose his self-control and react in a fatal way as did the defendant” (the Eliabayev case [28], at p. 467, emphasis added – H.M.). From the definition of the said test we learn that, from the point of view of the reaction of “an ordinary person”, certain concrete circumstances must be introduced in the framework of the “situation of the defendant”. The question is whether the sexual abuse that the Appellant experienced falls within the bounds of those concrete circumstances that may be introduced in the framework of the objective test, or whether doing so would be “prohibited” subjectivization according to the decision in the Biton case [21].  As I will now explain, my view is that, in the circumstances of the present case, the prior acts that the Decedent perpetrated upon the Appellant must also be included within the objective test, and such inclusion would not constitute prohibited subjectivization.

101.     As in other cases, here too, “the story does not begin ‘in the middle’” (see: CrimA 132/10 Tevachau v. State of Israel  [34], para. 8, per Justice Hendel).  The acquaintance between the Appellant and the Decedent did not date from the night of the event. Several years earlier, the Decedent began to torment the Appellant by calling him derisive names, threatening him, and taking his money. The persecution reached a peak in the weeks preceding the night of the event, when the Decedent perpetrated severe sexual offenses upon the Appellant on two separate occasions. Clearly the relationship as described between the parties cannot be discounted in the framework of the objective test, just as one cannot ignore the conduct of the Decedent in the moments preceding the killing. Here, too, we are concerned with an ongoing relationship that directly affected the level of provocation of the Appellant relative to the Decedent on the night of the event, which constitutes part of the situation of the Appellant at the time of committing the act of killing. Hence, we must include, in the circumstances of the case, the history between the Appellant and the Decedent in the framework of the objective test for provocation in its classical format.

Things would be different, for example, had it been a matter of another person being killed, one who was not connected to the sexual offenses committed against the Appellant. In those circumstances, any consideration of the Appellant having been the victim of sexual offenses would have appeared as “prohibited” subjectivization, since it would take into account a circumstance that is external to the relationship between the defendant and the person who was attacked.

102.     My above conclusion also derives from recognition of circumstances that justify invoking the doctrine of “cumulative provocation” in the framework of the subjective provocation test. Clearly, insofar as events that preceded the date of the killing are taken into account in the framework of the subjective test, they must also be considered in the framework of objective provocation – otherwise, the doctrine of cumulative provocation would be totally devoid of content, since it would never be possible to meet the test of objective provocation, all in accordance with the circumstances.

Take, for example, a case in which a woman causes the death of her husband after years of prolonged physical abuse, when close to the time of the killing, an additional act of provocation was committed by the husband in the form of verbal threats that he was going to beat her. On its face, the incident described justifies a charge of manslaughter and not of murder, for the circumstances are those of cumulative provocation, and it might be ruled that there was provocation according to the subjective test, when all the actions of the husband are examined. At the same time, this would clearly not pass the test of objective provocation if the history between the wife and the decedent were not included, for it is doubtful whether the threats made by the decedent close to the time of the killing, detached from the acts of abuse in the past, would be sufficient to permit acknowledging that the “ordinary person” would have acted as the wife acted.

103.     From the general to the specific: In the present case, my opinion is that a normative examination justifies recognition of cumulative provocation in the framework of the objective test as well. An ordinary person, who happens to meet a person who has sexually abused him, is taken by him to a dark, isolated place where there is basis for assuming that he is about to undergo further sexual abuse, and then, when he sees that the abuser is unzipping his pants and exposing his penis (even though he does not actually commit a sex act on him or try to do so), he is indeed liable to succumb to the “frailty of human nature”, lose his self-control, and react in a spontaneous manner, as the Appellant reacted. In the circumstances as described, it is possible that the reasonable person would have lost his self-control, failed to understand the moral consequences of his actions, and would not have elevated the value of the life of the abuser to the appropriate level by virtue of the principle of the sanctity of life. Therefore, I am of the opinion that provocation should be recognized in the present case under the objective  test of provocation as well, by virtue of the traditional standard of the “ordinary person”.

104.     This should not be construed as saying that that the Appellant’s behavior was reasonable, or that most people in the country would have acted as did the Appellant. The Appellant made a decision, albeit spontaneously, to kill the Decedent, and he did so. Therefore, he cannot be exempted from criminal responsibility, but must bear the appropriate penalty for his deeds., In his opinion in the Segal case [32], Justice M. Silberg wrote as follows in this regard:

A person who reacts with an act of murder to real provocation is not entitled to any “cleansing of guilt” due to provocation on the part of the victim. And rightly so! For there is no provocation in the world that can justify an act of murder, and there is no murder that would be a reasonable act, even if the provocation that caused it is liable to affect the reasonable person. For the sanctity of life is an absolute moral obligation … all this diminution from murder to manslaughter is only a concession that the law makes to the said frailty of human nature (at p. 497).

Recognition of provocation under the objective test in the present case is, therefore, intended to avoid branding the Appellant with the mark of Cain of a murderer for reacting as many others in his situation would have been liable to do in the same circumstances (see: CrimA 3071/92 Azoualus v. State of Israel [35], at p. 580).

105.     My conclusion is also consistent with the anticipated changes in the framework of the Bill for the Reform of the Laws of Homicide. Section 301B of the Bill provides, inter alia, that in a situation in which a person kills another following provocation, he will be charged with the offense of “causing death in circumstances of reduced responsibility”, and not of murder, and his penalty will be a maximum of twenty years imprisonment. An identical provision was proposed in the framework of that section for a person who killed under certain circumstances, including when he was in a state of deep psychological distress, following severe, ongoing  abuse on the part of the decedent. The Explanatory Notes to the section said that the reduced responsibility was designed to prevent branding a person who killed in the special circumstances described in the section as a “murderer”, as opposed to the present sec. 300A, which only allows for a reduction of the penalty in those circumstances (at p. 870) .

106.     In view of the above, having decided that there was provocation according to the objective test, and that a reasonable doubt exists as to whether or not there was subjective provocation in the circumstances of the case, I have no option but to decide that the Appellant indeed intended to kill the Decedent, but it was not a matter of “premeditation”. Accordingly, I propose to my colleagues that the Appellant be acquitted of the charge of murder, and that instead, that he be convicted of the charge of manslaughter (an offense under sec. 298 of the Penal Law).

 

The Penalty

107.     As stated, if my opinion is accepted, the Appellant will be convicted of the offense of manslaughter under sec. 298 of the Penal Law. The said section allows for the imposition of a maximum penalty of 20 years imprisonment. At the same time, this is a maximum sentence, and a shorter period of imprisonment can be imposed, in light of the principles of Amendment 113 to the Penal Law.

108.     Amendment 113 to the Penal Law establishes a three-stage test for determining the sentence of a person who has been convicted. At the first stage, the court must decide whether this was a single event, or several events. At the second stage, the court must decide the range of the sentence, in view of the guiding principle that there must be an appropriate relationship between the gravity of the deed under the circumstances and the defendant’s culpability, and the type and level of punishment imposed upon him (sec. 40B of the Penal Law). Finally, at the third stage, the court must examine whether, in the specific case, there are circumstances that justify departing from the range of punishment – for reasons of rehabilitation, or the protection of public peace. If there are no circumstances justifying such a departure, a sentence within the range of punishment set at the second stage will be imposed, taking into account considerations of deterrence of the individual and the public, as well as circumstances that are not connected to the commission of the crime (see: CrimA 8641/12 Saad  v. State of Israel [36]; CrimA 4741/13 State of Israel v. Naamneh  [37]).

109.     Our case involves an isloated act and a conviction for one offense. I will therefore proceed immediately to the second stage, at which the range of punishment is determined. For that purpose, several parameters that are listed in sec. 40C of the Penal Law must be considered. They are: the accepted penal policy, the protected interest that was harmed by the commission of the offense, the extent to which it was harmed, and the circumstances surrounding the commission of the offense.

110.     Regarding the consideration of the accepted penal policy, the case law has stated:

In relation to the crime of manslaughter, there is a broad spectrum of penalties, in accordance with the variety of situations and circumstances, and therefore the appropriate penalty is derived from the particular circumstances of each case. As such, it is not possible to determine the penalty by way of arithmetical comparison (see: CrimA 7000/10 Alfidel v. State of Israel [38]).

111.     In view of the aforesaid, counsel for each of the parties referred to different outcomes in cases that have come before us. In the sentencing arguments, the case of CrimA 6353/94 Bouhbut v. State of Israel [39] was cited. This case concerned a wife who killed her husband “in light of violence, abuse and terror perpetrated [on her] by the decedent over the course of the 24 years of their marriage.” After she was charged with and convicted of the offense of manslaughter, the Supreme Court, by majority opinion, sentenced her to 3 years imprisonment. There is a certain similarity between the circumstances of the present case and those in the case of Mrs. Carmela Bouhbut, for in both the abuser was killed by the victim of the abuse. However, there are several clear differences between the cases that require different sentences. Inter alia, these include the length of the period of abuse; the fact that the police were brought in, and the difficulty faced by Carmela Bouhbut, for this was the husband with whom she was living.

Mention should also be made of CrimA 4419/95 Hadad v. State of Israel [40], in which the appellant was convicted of manslaughter after he shot his father to death with the weapon of his soldier-brother. This followed his father’s acts of physical and verbal abuse against him, and other members of the family over many years.  The District Court sentenced him to ten years imprisonment, and his appeal against the severity of the sentence was denied by the Supreme Court.

Also relevant to our case is CrimA 7992/09 A. v. State of Israel [41].  In that case, the District Court convicted the appellant, who was a minor at the time the offense was committed, inter alia, of the offense of manslaughter, after he fatally stabbed the decedent, who had tried to molest him sexually when he slept at his house. Inter alia, the District Court sentenced the appellant to eight years imprisonment. The Supreme Court accepted the appeal of the appellant against the sentence, and set his penalty at six-and-a-half years of imprisonment. However, the two cases ought to be distinguished. In the latter case, it was ruled that this was a “case that was exceptional and special in its circumstances”, and that there was nothing wrong with the appellant’s decision to defend himself, but that his reaction was excessive to the point of it becoming unreasonable. The circumstances of the perpetrator in the latter case are also different: the appellant there was a minor, aged 16 at the time of the commission of the crimes, and he confessed to the charge against him.

Finally, in his final supplementary brief, submitted on May 4, 2016), counsel for the Appellant cited another case: CrimA 6283/09 Levy v. State of Israel  [42]. In that case, the appellant was convicted of manslaughter as a result of assaulting the decedent and causing him a serious head wound. The decedent was rushed unconscious to the hospital, and two weeks later, was pronounced dead. The verdict found that the appellant had been sexually assaulted by the decedent on several occasions when he was a child, and before he attacked the decedent, the appellant spotted the him as he was about to molest another minor. In that case, the court also determined that 20 minutes elapsed between the appellant seeing the decedent trying to sexually assault the said minor and the time when he returned and attacked the decedent a second time , this time without seeing anyone else who was in any danger. The District Court sentenced him, inter alia, to seven years imprisonment, and his appeal against the severity of the sentence was denied by the Supreme Court, which mentioned that at the second stage of the events, the attack was an act of revenge, where the appellant anticipated the fatal outcome of his actions.

Here, too, there is a certain resemblance between the Levy case [42] and the circumstances of the present case. However, it is difficult to draw a full analogy between the cases. In Levy, as opposed to our case, the appellant was initially charged with the offence of aggravated assault causing bodily harm. Only after the death of the decedent was the charge changed to manslaughter, of which the appellant was ultimately convicted. Moreover, in the Levy case, the offense was committed with less violence, and the fatal outcome there was not immediate. This Court also determined that the sentence that was imposed upon the appellant in that case “is not at all severe,” so it is difficult to view it as a guide for general penal policy in similar cases.

112.     The harm to a protected societal interest in the present case is extremely serious. On this subject, it is appropriate to quote from the judgment in the Hadad case [40]: “The principle of sanctity of life applies equally to every person as a person. The blood of a violent, despicable criminal is no less red than the blood of others” (at p. 764). This consideration therefore justifies setting a strict range of penalties for offenses of the type of which the Appellant was convicted.  In the Hadad case, the Court further stated:

It is the sanctity of life that motivated the legislature to establish a penalty of mandatory life imprisonment for the crime of murder, and this is what underlies establishing a penalty of twenty years imprisonment – which is the period set by the law for life imprisonment that is not mandatory – for the crime of manslaughter. Preservation of the sanctity of life, including imprinting this sanctity on every person’s consciousness, is first among the purposes of punishment when a life has been taken, and the court must bear this in mind in pronouncing sentence for the crimes of murder and manslaughter. It is no mere coincidence that the commandment, “Thou shalt not kill” is the first of the commandments expressing the basic norms for life in a civilized society, for there is nothing more terrible act than that … (at p. 765).

113.     In this context, I would add that the sense of justice and public confidence in the legal system are liable to suffer if too great a disparity should develop between the penalty for the offense of premeditated murder and the penalty for crimes of manslaughter that are committed in aggravating circumstances (see: Andrew Ashworth, Sentencing and Criminal Justice, 130 (6th ed., 2015) (hereinafter: Ashworth)). The English Court of Appeal referred to this in one particular case, saying as follows:

…vast disproportion between sentences for murder and the sentences for offences of manslaughter which can sometimes come very close to murder would be inimical to the administration of justice (R. v. Wood [49], par. 22).

In addition, the sentence for the offense of manslaughter must continue to reflect moral censure which singles out the taking of human life, and distinguishes these types of offenses from other violent offenses that do not involve causing death (compare: Ashworth, at p. 277).

114.     Sentencing in cases such as these is, therefore, a hard task. From a comparative perspective, the English sentencing guidelines that deal with manslaughter due to provocation explain that in his sentencing, the judge must weigh up, inter alia, the following variables, and strike a balance among them (see: Sentencing Guidelines Manual, Manslaughter by Reason of Provocation (2005) (hereinafter: The English Guidelines)):

First, the degree, nature and duration of the provocation. In this framework, the judge must consider whether the provocation is particularly extreme, whether the victim threatened only the defendant, or also his children, or someone close to him, abuse of the defendant by the victim in the past and its nature, the mental state of the defendant and its effect on the perception of the provocation. An important factor is the nature of the provocative behavior, its duration, and its cumulative impact over time, if such exists. When examining the nature of the provocation, the judge must consider whether the victim was actually physically violent towards the defendant, or whether he confined himself to verbal threats, and whether the acts of the defendant were motivated by fear, or by frustration or anger and the desire for revenge ‒ these elements constituting mitigating and aggravating circumstances, as the case may be.

Second, the extent, force and nature of the loss of self-control on the part of the defendant. In this framework, the judge must consider, inter alia, the amount of time that passed between the provocation (or the last act) and the  commission of the offense, whether the provocation built up over time, whether the defendant used a weapon and which type of weapon, and whether the weapon was prepared in advance. Another factor for consideration is whether the defendant took advantage of the fact that the victim was not prepared for, or that he slept at the time of the commission of the offense, whether the victim and the defendant were in a relationship at the time that the provocation took place, and the nature of the power balance between them.

Third, the actions of the defendant after commission of the offense and the motives. Did the defendant help the victim, or was he present at the scene after committing the crime, and as opposed to this, did the defendant try to destroy incriminating evidence, or mutilate the corpse?

The English Guidelines set three sentencing ranges for cases of manslaughter by reason of provocation, in accordance with the degree of provocation. The starting sentence is set for cases in which the provocation occurred over a short period prior to the commission of the offense. The Guidelines state that the judge must relate to the starting sentence in accordance with the degree of provocation, its duration, and taking into account the aggravating and mitigating circumstances. The starting sentence set for a low degree of provocation is 12 years imprisonment, and the range is from ten years to life-imprisonment. The starting sentence set for a substantial degree of provocation is 8 years, and the range is from 4 to 9 years imprisonment, and the starting sentence set for a high degree of provocation is three years, and the range is up to 4 years imprisonment.

The circumstances that are connected to the commission of the offense in English law, and particularly the considerations of absence of pre-planning, the past history of the Appellant and the Decedent and the nature and degree of the provocation, are also relevant in our case.

115.     Beyond an examination of the protected interest that has been harmed, one must also take into account the circumstances connected to the commission of the offense (see: sec. 40C(a) and sec. 40I of the Penal Law). The Appellant committed a vicious act of killing, which led to the grave harm of taking the life of the Decedent. Nevertheless, the Appellant acted with no earlier preparation, and as noted by the District Court, it may be assumed that had the Appellant not run into the Decedent by chance on the night of the fatal event, the crime might not have been committed. Similarly, another mitigating factor is the history between the Appellant and the Decedent that included violence, threats, extortion and sexual abuse, which led to the Appellant’s state of mental distress, and ultimately, to the commission of the offense. This last consideration led the District Court, with the consent of the Respondent, to reduce the sentence of the Appellant under sec. 300A(3) of the Penal Law after he was convicted of murder, and it seems that it should also be accorded significant weight when we decide on his sentence after convicting him of the offense of manslaughter.

116.     As for the Appellant’s ability to refrain from the act ‒ the District Court held that this was an aggravating consideration since the Appellant could have “broken off contact” with the Decedent on three different occasions on the night of the fatal event, but refrained from doing so. The Appellant could also have contacted the police before the night of the fatal event, in light of the criminal persecution by the Decedent. These considerations are legitimate in my eyes in the framework of sentencing, but they should be accorded only minor weight under the circumstances, in view of the Appellant’s submissive character and the natural difficulty of the victims of sex crimes in seeking help.

117.     As for the Appellant’s ability to understand the wrongful nature of his conduct, it is this element that served me in my decision on the question of provocation, and I therefore do not think that it should be taken into consideration here as well.

118.     After weighing all the circumstances and above considerations, I am of the opinion that the appropriate range of sentencing in the circumstances of the case is between 10 and 15 years imprisonment. In the absence of considerations of rehabilitation and protection of society in our case (secs. 40C(b), 40D and 40E of the Penal Law), I see no reason to depart from the said sentencing range, and therefore, in the framework of the third stage, the Appellant’s sentence should be determined within the sentencing range.

119.     On this matter, I am satisfied that the District Court carefully considered the circumstances that are not connected to the commission of the offense, such as the absence of a criminal record, the Appellant’s cooperation with the legal authorities, his confession to the deed, his positive character, his medical condition and his life circumstances. The District Court concluded that, in view of the above considerations, the penalty of the Appellant should fall within the sentencing range – and I concur in this conclusion (compare the starting sentence fixed according to the English Guidelines for a low degree of provocation). Accordingly, I believe that the penalty imposed upon the Appellant should be set at imprisonment for a period of 12 years, from which the period of his detention will be deducted, and this – in addition to the conditional sentence imposed by the District Court.

120.     In view of all the above, I propose to my colleagues that we grant the Appellant’s appeal in the sense that we acquit him of the offense of murder, and convict him of the offense of manslaughter under sec. 298 of the Penal Law. I also propose that we reduce the prison sentence imposed upon the Appellant, setting it at 12 years imprisonment, from which the period of detention will be deducted, with no change to the conditional sentence imposed upon the Appellant by the District Court.

121.     Following the above, I read the opinions of my colleagues Justice U. Shoham and Justice D. Barak-Erez, and I concur in their incisive comments.

 

Justice U. Shoham:

I concur in the comprehensive, thorough opinion of my colleague Justice H. Melcer, and in  his conclusion concerning the penalty. I, too, am of the opinion that the Appellant cannot invoke one of the defenses to criminal responsibility, namely self-defense, defense of one’s home, and putative self-defense, all as extensively elucidated by my colleague.

As for the elements of the crime of premeditated murder, I agree that “cumulative provocation” has been proven in the present case, and it may be said that, in the circumstances of the case, the requirement of subjective and objective provocation has been met. Regarding subjective provocation, this was a case involving a long period of cruelty on the part of the Decedent towards the Appellant, which included a array of incidents of violence, threats of violence, including threats to the Appellant’s life, financial extortion, and sexual abuse which included two acts of sodomy. In these circumstances, the Appellant being drawn to the alley and the Decedent exposing his penis (even if for the purpose of urinating), when beforehand the Decedent had tried to extort NIS 1000 from the Appellant – all these had the effect of a type of “trigger” that caused the Appellant to lose control and kill the Decedent. In this, the present case is different from that of CrimA 7707/14 Laham v. State of Israel [30], which was cited by my colleague in para. 72 of his opinion. There, the Appellant sought to take revenge on the Decedent for the rape of his sister several years earlier, and therefore the fact that he spotted him when he was walking in the direction of his family’s home cannot provide a basis for the claim of provocation.

As for objective provocation, I concur with my colleague that this provocation must be considered in accordance with the criterion of the ordinary person, but without ignoring the history that predated the act of killing. This applies, of course, in a case of “cumulative provocation” such as our case, for otherwise it would not be possible to recognize this type of provocation. Thus, the requirement of objective provocation must meet the criterion of the “ordinary person”, given the history and the common past of the killer and the victim, insofar as they are relevant to the event described in the information. According to this criterion, the Appellant also met the requirement of objective provocation, and therefore, he should be convicted of manslaughter and not of premeditated murder.

In addition, the penalty proposed by my colleague, which includes 12 years imprisonment, is appropriate and balanced in the circumstances of the case, and I concur in that as well.

 

Justice D. Barak-Erez:

1.         I concur in the comprehensive opinion of my colleague Justice H. Melcer.

2.         This is one of those cases in which the law cannot grasp the full complexity of life and of human suffering. Furthermore, this is a case that requires a balance between considerations of individual distress and those of general social justice, including preservation of the sanctity of a person’s life – even that of a sinner – and concern about providing legitimacy for taking the law into one’s own hands and revenge.

3.         Yonatan Hailu Yamar, the Appellant, fell victim to sexual abuse, and also suffered from a life of illness and hardship, which made it difficult for him to accept help in “real time” by turning to the authorities or other support circles. At the same time, Yonatan Hailu Yamar also took the life of another person, not in circumstances of self-defense, albeit under the influence of distress and suffering.

4.         I agree with my colleague Justice Melcer that, in the circumstances of the case, no factual basis was laid for the claim of self-defense, not even for a claim of putative self-defense. As long as the person who is attacked has the possibility of retreating, that possibility is to be preferred. In the present case, unlike the situation in some cases of violence that take place within the family, the alternative of leaving the scene was possible and obvious.

5.         Even when we are concerned with victims of a crimes like Yonatan Hailu Yamar, if we are a life-affirming society we cannot grant legitimacy to acts of violence by victims of crimes, and especially acts of violence that have fatal consequences, in the framework of the defense of self-defense, unless it is self-defense in the simple, immediate sense. Self-defense is the justification that recognizes the absolute legitimacy of an action taken in order to save one’s life and soul. Sometimes, it may extend to those who mistakenly, though reasonably, thought that they were in danger. However, a fatal act that clearly was not necessary for the preservation of life cannot be condoned. Indeed, sometimes we cannot be “too particular” with a person who was assaulted with respect to the precise measure of the use of force, and even more so with respect to those who are physically weaker than their assailant (see: Daphne Barak-Erez, The Reasonable Woman, 6 Plilim 115 (1998) (Hebrew)). However, this approach of “not being too particular” certainly cannot provide a complete exception to criminal responsibility in the case of use of force against a person who is helpless, however great his original guilt.

6.         Once we arrived at the conclusion that the Appellant should be convicted,  our discussion focused on the question of the offense of which the Appellant ought to be convicted, and how harsh his sentence should be. Under the present law, there are two paths that may lead to a reduction in the sentence of one who took the life of another against a background of continuous abuse ‒ accepting the claim of provocation, or accepting a claim of reduced penalty under sec. 300A of the Penal Law, which applies, inter alia, “when the defendant was in a state of severe mental distress, because of severe or continued tormenting of himself or of a member of his family by the person whose death the defendant caused.” Alongside the similarity between the two paths, in the sense that both of them lead to a lighter sentence for the defendant, there is a significant difference in relation to criminal liability. Acceptance of the argument of provocation leads to a reduction in the conviction from murder to manslaughter, and consequently, also allows the court to be lenient in sentencing the defendant in the framework of the discretion it is given in determining the sentence for the crime of manslaughter. As oppose to this, an argument for reduced penalty under sec. 300A of the Penal Law allows for leniency in the penalty, but the conviction remains a conviction for the offense of murder.

7.         The District Court based its judgment on sec. 300A of the Penal Law. My colleague Justice Melcer, on the other hand, ruled that, in the circumstances of the case, the claim of provocation raised by the Appellant should be accepted, and the Court should therefore be satisfied with his conviction of the offense of manslaughter, rather than the offense of murder. This determination has legal, moral and social implications, and I therefore would like to discuss it, even if on the practical level it would have apparently been possible to reach the same penal outcome within the framework of sec. 300A of the Penal Law.

8.         My colleague Justice Melcer explains that, in the circumstances of the case, the claim of provocation raised by the Appellant should be accepted in the framework of the development of the doctrine of “cumulative provocation”, which has been recognized in the case law of this Court. This is not a trivial determination. Indeed, on the level of principle, this claim of cumulative provocation should be recognized to the extent that our legal system recognizes the principle of provocation in the framework of the present structure of the offense of murder. However, implementing the claim of provocation always involves a concern that it will be understood as indirectly legitimizing the taking of life due to inflamed passions, since the court is called upon to decide, inter alia, on the question of whether the “reasonable person” would have failed by taking the life of the decedent in the same circumstances.

9.         The enactment of sec. 300A of the Penal Law postdated the groundbreaking judgment in the matter of Carmela Bouhbut (CrimA 6353/94 Bouhbut v. State of Israel [39]), which clearly brought to the forefront the problem of the victim of continued abuse who takes the life of his abuser. Apparently, the section was designed to provide a response to cases of this type. However, the choice of the solution of only a reduced penalty, under which a person who suffered from abuse and as a result took the life of his abuser would be labeled a “murderer”, left unanswered the question of the circumstances in which it is nevertheless appropriate to talk of a person who “killed” and not “murdered” on the basis of the claim of provocation, with all that that involves. It bears mention, in this context, that the bill that engendered the amendment to the Law was originally directed at reducing the responsibility from murder to manslaughter, as opposed to the formulation of the law as it was ultimately passed (see: Penal Law (Amendment no. 41) (Reduced  Liability) Bill, 5755-1995; Penal Law (Amendment no. 44), 5755-1995).

10.       The starting point for the response to the question lies in the fact that sec. 300A of the Penal Law focuses only on the distress of the perpetrator of the offense (against the backdrop of ongoing abuse on the part of the decedent). It does not relate to any additional act on the part of the decedent that acted as a “catalyst” or an “arousal” to his being killed. As opposed to this, the claim of cumulative provocation involves the combination of an act that occurred close to the time of the fatal event, with a background of ongoing abuse. In this sense, the parallel between the situations is not absolute. In order for the claim of cumulative provocation to be accepted, one must also examine – after the continued abuse has been proven – whether the behavior close to the time of the causing of death was sufficiently serious in order to serve as the basis for this claim, against the backdrop of the past. The decision on this matter will necessarily be contextual and case-specific.

11.       My colleague Justice Melcer is of the opinion that, in the set of special circumstances of the case, in which prior to the attack on the Decedent, he threatened the Appellant and humiliated him – and all this against the backdrop of two incidents of sexual assault in the preceding weeks – there is reason to accept the claim of cumulative provocation.  After much thought, I concurred in this conclusion. However, I wish to stress that I did so in view of the circumstances and the proven facts of this case. The fact that a person is the victim of ongoing abuse should not serve, per se, as a basis for acceptance of the claim of provocation. In other cases in which the elements of provocation are not present, victims who suffered from continuous abuse and killed the perpetrator may be shown leniency in the framework of sec. 300A of the Penal Law, which is based on the assumption that there was indeed a “murder”, but at the same time, it expresses a position of understanding of the distress of the victim who became a perpetrator, in the format of a reduced penalty.

12.       Neither does taking into consideration the distress of the victim who became a perpetrator, in the framework of sec. 300A, necessitate a discussion of the question of “reasonableness”, as in the context of the claim of provocation, with all the difficulties involved and the complexity arising from the differences between people and their different personal circumstances (see and compare: CrimFH 1042/04 Biton v. State of Israel [21], at pp. 713-718, 720-723).  I would add that I agree that the standard of the “reasonable person” has to be applied contextually, as explained in my above-cited article. Nevertheless, like my colleague, I believe that we would do well to refrain from defining a standard of the “reasonable rape victim”, as counsel for the Appellant sought to do. I do not think that we should decide who is a “reasonable rape victim”, and neither should we set “standards” for a victim’s conduct. Concretization of the reasonableness – yes; rigid categorization that creates “molds” and “models” for behavior in the format of the “reasonable rape victim” – no.

13.       It may be added that the proposed reform of the homicide offenses (in the last-published version – Penal Law (Amendment no. 124) (Offenses of Causing Death) Bill, 5775- 2015) – is formulated in such a way that causing death in circumstances of provocation and causing death against a background of abuse (to which sec. 300A of the Penal Law applies today) will both be regarded, in equal degree, as causing death in circumstances of reduced responsibility. If this proposal is accepted, there will no longer be any practical significance to a discussion of the claim of cumulative provocation in circumstances of ongoing abuse. According to what was explained above, this aspect of the reform, if it should be approved, is anticipated to facilitate the adjudication of the subject, and even more importantly, it will correctly reflect the consideration accorded to crime victims who suffered abuse, without going into questions of the level of reaction in the framework of the laws of provocation.

14.       In applying the principles that were laid down in the case law for determining the sentence of a person who was convicted of  manslaughter in circumstances of this type, we had to tread the narrow path between according full weight to the personal circumstances and the deep distress of the Appellant on one hand, and the principle of preservation of human life and total negation of taking the law into one’s own hands, on the other. In my opinion, despite the difficulty involved in imposing a penalty on the Appellant that is not light, my colleague’s judgment achieved the right balance between these considerations.

15.       On a broader view, I will point out that, in the course of the hearings in this Court, it was repeatedly argued that the Appellant was alone in his distress, he did not turn to the authorities for help after he was abused, and he received no protection from them. Against this background, and beyond the decision in the present case, it is appropriate to add that the reality in which crime victims find themselves in a difficult position with respect to complaining to the enforcement authorities is distressing. Often, this results from the emotional barriers involved in filing a complaint and dealing with it. Sometimes, it may also derive from fears of those who belong to weaker sectors of the population in turning to the enforcement authorities and placing their trust in them. This is a barrier that the state authorities must fight and must not accept. The educational system must address it. Police authorities must address it and “extend a helping hand” to the communities within which they operate. Neither should the victim be judged on the fact that it was hard for him to ask for help. Nevertheless, this alone cannot legitimize every act of violence on his part. Needless to say, this is also true for all victims of violence – man or woman, and whether the violence be sexual or otherwise.

Decided in accordance with the opinion of Justice H. Melcer.

23 Iyar 5776 (31 May 2016).

 

LCrimA 7669/15

 

 

Applicant:                               Ra’ed Salah Mahajna

 

v.

 

 Respondent:                          State of Israel

 

 

Attorneys for the Applicant:  Avigdor Feldman, Adv., Omar Khamaisi, Adv., Khaled Azbarga, Adv., Ariel Piechotka, Adv.

Attorneys for the Respondent: Dafna Finkelstein, Adv., Shlomi Abramson, Adv.

 

 

                                                              

 

 

 

The Supreme Court

 

 

Application for leave to appeal the judgment of the Jerusalem District Court of November 10, 2015, in CrimA 30980-04-14 delivered by Judges A. Romanoff, D. Mintz and E. Nachlieli-Khayat

 

16  Shvat 5776 (January 26, 2016)

 

Before Deputy President E. Rubenstein, Justice S. Joubran, and Justice A. Baron

 

 

J U D G M E N T

 

Deputy President E. Rubinstein:

 

1.         This case concerns the interpretation of the offenses of inciting racism and inciting violence. It is an application for leave to appeal the judgment of the Jerusalem District Court (Judges Romanoff, Mintz and Nachlieli- Khayat) in CrimA 30980-04-14 and CrimA 31172-04-14, delivered on November 10, 2014, which granted the Respondent's appeal of the judgment of the Jerusalem Magistrates Court (Judge Lomp) in CrimC 5425/08, delivered on March 4, 2014. The application for leave to appeal is also directed at the judgment of the Jerusalem District Court (Judges Carmel, Mossek and Renner) in Criminal Sentencing Appeal 15799-05-15 and in Criminal Sentencing Appeal 16604-05-15, delivered on October 27, 2015, which denied the Respondent's appeal and the Applicant's appeal as to the leniency of the sentence and the severity of the sentence, respectively, in the judgment of the Jerusalem Magistrates Court (Judge Lomp) issued on March 26, 2015, which sentenced the Applicant to 11 months imprisonment and an eight-month suspended sentence. The application for leave to appeal focuses on the conviction of the Applicant, born in 1958, who is the leader of the Northern Faction of the Islamic Movement in Israel, of the offense of inciting racism, pursuant to sec. 144B(a) of the Penal Law, 5737-1977 (hereinafter: the offense of inciting racism), and of the offense of inciting violence or terror, pursuant to sec. 144D2(a) of the Penal Law (hereinafter: the offense of inciting violence).

 

Background

 

2.         In February 2007, Israeli authorities carried out archeological work in the area of the Mughrabi Ascent, at the entrance to the Temple Mount (the Mughrabi Ascent is a dirt berm that leads to the Mughrabi Gate, a gate to the Temple Mount complex, which is located on the south side of the Western Wall), prior to construction work on the berm. These actions were met by riots among the Arab public that falsely claimed that the Israeli authorities were attempting to sabotage the holy sites.

 

3.         As alleged in the indictment, on Friday, February 16, 2007, at around 10:00 AM, the Applicant arrived in Jerusalem, along with hundreds of supporters from the Northern region. Due to police instructions which restricted the worshipers' entrance to the Temple Mount, and in light of a restraining order issued in the framework of MApp 2181/07, which barred the Applicant from entering or approaching within 150 meters of the Old City for 60 days, the Applicant and his supporters congregated in the Wadi al-Joz neighborhood to hear a sermon delivered by the Applicant, and for Friday prayers. A makeshift stage was set up from which the Applicant, using loudspeakers, spoke to approximately one thousand people who had congregated, and to a number of media outlets. It is undisputed that among other things, the Applicant said the following:

 

Now we are in this blessed, pure place, a place of blessing and purity, if not for the disturbances and obstructions that have befallen us by the Israeli occupation, which will be removed, please God, just as other like it were removed in the past.

 

Following the Rafah camp crime, you are being told that the Israeli establishment wants to build a temple that shall serve as a house of worship to God. How impertinent and dishonest, it is inconceivable that one who wants to build a house for God would build a house for God while our blood is still on its clothes, our blood is still on its doors and our blood is in its food, and our blood is in its drink, and our blood moves from one terrorist general to another terrorist general.

 

Thus we continue on our path and fear none but God, praised his name. We fear none but God. This is why I say that those who think that they have a bleeding history, they have generals of killing and of massacres. They who think that by inciting against us on Channel One, and on Channel Two, those who thought that they were inciting against us on Channel Ten or on the Army Radio, we  fear none but God. The most beautiful moments in our destiny are when we will meet God as martyrs [shahids] in the area of the Al Aqsa mosque.

 

This is why I say this clearly and without hesitation: You who incite against us, do not be lured by the ranks on your shoulders. Those ranks and stars placed on your shoulders were made of the skulls of our martyrs. These are ranks of shame and not ranks of splendor. These are ranks of disgrace and not ranks of honor. You surprise me. Those of you who kill more of us, get promoted to higher ranks.

 

While we are here, preparing for prayer in the area of the blessed Al Aqsa mosque. Here is where all of the clouds of deprivation shall be removed from the skies of holy Jerusalem. On that day, all of the streets of holy Jerusalem will be cleansed of the blood of the innocents whose blood and souls were taken by the soldiers of the Israeli occupation, who are occupying the blessed Al Aqsa mosque. Indeed, that is when the Jerusalem almond trees will renew their blossom and the leaves of the olive trees will be green again, and dignity shall be returned to the Church of the Holy Sepulchre, and dignity shall be returned to all of the mosques and churches. Furthermore, we are not malicious and we shall not be malicious, and we shall also preserve the dignity of the synagogues of the Jews. We are not a nation that is based on values of jealousy. We are not a nation that is based on values of revenge. We have never allowed ourselves, and listen well, we have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children. And those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough. Good God, is that religion? Is that what God wants? God will yet deal with you for what you do…"

 

We are not alone in this struggle. It is possible that they will come to me and tell me you are inciting. They want to destroy our Al Aqsa, and they are coming and telling me you are inciting. So, my brothers, I am telling you, and I am saying that we are not alone in this struggle. I want to tell every sane person. I want to say this to every sane person, that the battle that the forces of the Israeli occupation started against holy Jerusalem and against the blessed Al Aqsa mosque, is not over yet. Indeed, the sights of this campaign officially started in 1948 CE. Since that year, the Israeli establishment continues in its war against holy Jerusalem and in the blessed Al Aqsa mosque. During the years that have passed there was a bloody scene there, in 1967 CE. There was a battle that the Israeli occupation establishment, which is occupying holy Jerusalem and the blessed Al Aqsa mosque, is still continuing. It is still continuing the battle. The battle is still continuing... but we are emphasizing that, God willing, we are not alone in this battle. We are asking each Muslim and Arab in the Islamic and Arab present, be it a judge or a scientist or a party or a public institution or factions or nations, we aspire from them now (sic.– E.R.), it is now their duty to assist the Palestinian nation. It is now their duty to instigate an Islamic Arab Intifada from ocean to ocean, in support of holy Jerusalem and the blessed Al Aqsa' mosque (emphasis added; the parts that were emphasized are those on which the charges focused, the first in the matter of racism and the second in the matter of vinolence).

 

As alleged, the Applicant's sermon was interrupted from time to time by the audience, that called out "God is great" and "In blood and fire we shall redeem you, Al Aqsa". As alleged, at the end of the sermon and the prayers, the audience present began to riot and hurl rocks at the police forces that were nearby. During the riots, three Border Policemen were injured.

 

4.         Following the above, the Applicant, as noted, was charged with the offense of inciting racism and the offense of inciting violence.

 

The Magistrates Court's Judgment

 

5.         The Respondent sought to establish the Applicant's conviction of the offense of inciting racism on the Applicant's following words, alleging that these words referred to the famous blood libels that led to antisemitism throughout history: "We have never allowed ourselves, and listen well, we have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children. And those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough. Good God. Is that religion? Is that what God wants? God will yet deal with you for what you do…". The Magistrates Court did not accept the State's position, ruling that the Applicant's words regarding the blood libels are not sufficiently clear, and that there is confusion between two different terms, and between different religions – and this is what happened when the Applicant stated that children's blood is mixed with holy bread, and not with Passover matzah. It was noted that the Applicant's explanations and the lack of clarity of his words left doubt whether he was aware of the nature of the act and of the possibility that his words would lead to inciting racism. The Applicant was acquitted of committing this offense.

 

6.         However, the Magistrates Court did convict the Applicant of the offense of inciting violence. It ruled that his words: "It is now your duty to instigate an Islamic Arab intifada from ocean to ocean", constituted a call for a violent uprising. It was noted that given the general context of the Applicant's sermon, the repeated use of the word "blood" and the words "we will meet God as martyrs [shahids] in the area of the Al Aqsa mosque", the call for an Intifada cannot be understood other than as a violent civil uprising. The "circumstances of time and place" were emphasized in this context: these were tense times, the streets of Jerusalem were roiled and stormy, the Applicant is a well-known, influential figure in the Arab public and he spoke before an angry, frustrated crowd that had, under the circumstances, been prevented from entering the Temple Mount for Friday prayers. It was finally explained that in order to fulfill the elements of the offense it is not necessary that the incitement actually lead to violence, and it is sufficient that there be a real possibility that the publication will lead to an act of violence being committed. However, the court examined the causal connection between the incitement and the actual violence as an aggravating circumstance, and after reviewing the testimony of the policemen who were on the scene and the defense testimony, it ruled that there was no causal connection between the Applicant's sermon and the riot that occurred shortly thereafter.

 

The Original Sentence (original – since a more severe sentence was subsequently imposed on appeal)

 

7.         The court discussed the social value embedded in the offense of inciting violence – maintaining public safety and protecting against its potential endangerment – as well as the prevailing punitive policy. The court further expressed its opinion regarding the circumstances related to committing the offense and the extent of the Applicant's guilt. It was noted that the Applicant is a respected public figure, that his speech was delivered to a large audience and was broadcasted by the media. It was also emphasized that the Applicant spoke in the framework of Friday prayers before a "charged" audience that had come from afar, and that had been prevented from entering the Al Aqsa mosque to pray. The court added that this case is at the more severe end of the scale compared to other incitement cases decided by the Israeli courts, in light of the speaker's prominent status, his audience, the circumstances in which the speech was delivered, the severity of the expressions and the infinite potential damage  they posed. On the other hand, the court took into consideration the fact that no direct damage was caused by the Applicant's speech.

 

8.         In light of the above, the range of punishment was set at 3-18 months of imprisonment. In determining the punishment from within that range, the court considered the Applicant's criminal record, which includes security offenses, considerations of deterrence, and the fact that the Applicant did not take responsibility for his actions, while also considering the fact that – at the time – he had not committed additional offenses since perpetrating the offenses that are the subject of the Application. It was also noted that the conduct of the trial and the Applicant's multiple absences led to a prolonging of the proceedings, and that the Applicant's personal circumstances, other than his age and status, had not been presented to the court. The Applicant was thus sentenced to eight months of custodial imprisonment and an eight-month suspended sentence for a period of three years.

 

The District Court's Judgment

 

9.         Both the Respondent and the Applicant filed appeals on the judgment. The District Court (Judges Romanoff, Mintz and Nachlieli-Khayat) granted the Respondent's appeal, ruling that the Applicant should also be convicted of the offense of inciting racism. It was noted that the Applicant's speech was not delivered in a void, but rather in the clear context of the protest that arose among parts of the Muslim public following works that were performed by Israeli authorities in the area of the Mughrabi Ascent. The court noted that this protest did not arise in a vacuum but rather was an outgrowth of the conflict that has existed in our region for many years, and that "this is not a detached, intellectual, theological discussion, but rather a statement in which the ‘blood motif’ is repeatedly emphasized, in a clear context concerning an identifiable entity…". The court added that "resurrecting a blood libel accusing Jews of murdering children in order to use their blood to bake special food for their holidays is not legitimate, even where there are deep disputes, profound differences, anger and hatred… it is intended to intensify hate, deepen the chasm, increase the gaps and trigger conflicts.". In response to the defense’s argument that the Applicant's use of the expression "holy bread", which in Christianity is known as "sacramental bread", and not the expression "Passover matzah", testifies that he did not direct his words at the Jewish public, the court explained that what emerges from the Applicant's words is that he wanted to state that the bread referred to is special bread that is eaten on a holiday, and that the sermon he delivered did not address the relationship between Islam and Christianity, but rather the relationship between Muslims and Jews. The court thus ruled that given what was said, its context, the Applicant's status, and the identity of his audience, there can be no doubt that what was said was intended to incite racism.

 

10.       The court was divided as to convicting the Applicant of the offense of inciting violence. Judge Romanoff was of the opinion that the Applicant should be acquitted of this offense. In his opinion, one could not dismiss the Applicant's explanation that his words did not incite to violent action or acts of terror, but rather constituted a call for a general, not necessarily violent, recruitment to protect against what appeared to him to be a violation of a holy site. It was emphasized that, in his sermon, the Applicant transcended the limits of time and place, and therefore one cannot dismiss his explanation that he was asking all Muslims to do their part, to the best of their abilities and expertise, to protect the Al Aqsa mosque. Judges Mintz and Nachlieli-Khayat, on the other hand, were of the opinion that the Applicant's words could not be understood in any manner other than as a call for violence. This was particularly the case when, a number of sentences earlier, in the context of protecting the Al Aqsa mosque, the Applicant praised martyrs. It was further noted that even if the call for an intifada was directed to the entire Muslim world, this does not mitigate the severity of what was said, since it is clear that to the extent the Applicant's words were directed to an audience in Israel, they constituted a call for violence, nor does it dismiss a similar call to those who are elsewhere. It was explained that the circumstances – primarily the Applicant's identity, the atmosphere among the Arab public at the time, the scope of the publication and the group that was exposed thereto, the location of the sermon, and the fact that it was a Friday sermon -- also support the conclusion that this was an act of encouraging, supporting and identifying with acts of violence. It was further noted with respect to the literal meaning of the term "intifada", that the Applicant's explanations that all he wanted was to call for an awakening and protest, but not for violence, cannot be reconciled with the content of the sermon, the repeated use of the word "blood" and the context.

 

The Magistrate Court's Supplemental Sentence

 

11.       Following the Applicant’s conviction of the offense of inciting racism, the case was remanded to the Magistrates Court for sentencing. The court noted that in addition to the protected values regarding maintaining public safety and protecting against its potential violation, the offense of inciting racism also comprises an additional objective of protecting human dignity. The court again emphasized that the Applicant is a respected, well-known public figure, and that his words were spoken at a time when the atmosphere on the streets of Jerusalem was tense. The court also elaborated on the severity of the expressions, while also taking note of the fact that no direct damage was actually caused by the Applicant's actions. The updated range of punishment was set at 5-20 months of imprisonment "in order to express society's revulsion at racist statements and calls for violence, and due to the need to condemn those who employ such rhetoric…". The mitigating and aggravating considerations listed by the court in the original sentencing – as well as a conviction, after the original sentencing, of assaulting a policemen in order to prevent him from performing his duty while he was conducting a security check of the Applicant's wife, which did not receive significant consideration since it had a "personal background" – led the Magistrates Court to sentence the Applicant to eleven months imprisonment, as well as an eight-month suspended sentence for three years.

 

The Appeal on the Supplemental Sentence

 

12.       The Respondent filed an appeal with the District Court on the leniency of the sentence, and the Applicant filed an appeal on its severity. The appeals were denied. The court explained that the Applicant did not take responsibility for his actions, did not admit to them, and did not express remorse. The court (Judges Carmel, Mossek and Renner) emphasized the severity of the offenses and the aggravating circumstances of their commission. It noted that the Applicant, under a pretense of a lesson on religion, abused his status, knowing that it grants him influence among his audience, in order to deliver his messages, and that it was not a short, spontaneous statement, but rather a planned and organized sermon in the presence of a large public that had not been allowed to enter the Temple Mount. The argument that both of the offenses of which the Applicant was convicted stem from one event, are overlapping, if not identical, was also rejected. The court explained that each offense relates to a different, significant and separate part of the sermon. Finally, with respect to the argument that this was the first time that a custodial sentence was imposed for offenses that are merely expressions, the court noted that "there is no comparison between the status, influence, prestige, public weight and significance attributed to the words of the Appellant before a large audience, and those defendants who, although they said severe words of incitement, did not have influential public significance or weight, and certainly not such a broad and significant influence as that of the Appellant" (emphases removed – E.R.). The court also considered the Applicant's criminal record, as well as the fact that from the time the offenses were committed and until the date of sentencing, approximately eight years had passed during which he had not been involved in criminal activity (other than the said conviction of assaulting a policeman after the original sentence had been issued). The court noted that the severe offenses and the circumstances in which they were committed require substantial punishment that realizes the deterrence interest. The court concluded that, in light of the above, it would be inappropriate to intervene in the severity of the punishment. The Respondent's appeal as to the leniency of the sentence was also denied. The court also took notice of the many delays in the proceedings, which were attributable to the Applicant, as well as the fact that the Applicant did not repeat his actions.

 

Application for Leave to Appeal

 

13.       According to the Applicant, the application raises serious questions, among them the questions of where to draw the the line between freedom of expression and incitement, and what is the appropriate range of punishment for such offenses. As to the offense of inciting racism, the Applicant argues that his statements were not explicit, and in light of his impressive rhetorical ability, had he intended to incite racism, it is doubtful whether he would have crafted his words in such a manner. It was emphasized that there was no mention of the Jewish people or the State of Israel in his words. As to the offense of inciting violence, it was argued that in offenses of expression, the importance of examining the version of the accused party is acknowledged, yet, in the case at hand, little weight was attributed to his explanations. It was noted that the term "intifada" means awakening, and that the Applicant's intention was that of a global awakening of awareness and protest, but not of violent action. The universal aspect of the call was also emphasized. It was further argued that the use of the word "martyrs" [shahids] was not made in the context to which the majority judges referred, and that it referred to innocent people who were victims and lost their lives due to the conflict. It was explained that the use of the blood motif was merely metaphoric, and that neither it nor the other expressions used can  imbue the Applicant's words with the power to incite. As for the sentence imposed, it was argued that the penalty imposed on the Applicant set new precedent  in its severity, and that this will be the first time in Israel that a person will serve an extended prison term for offenses that entirely consist of expression. The Applicant cited a number of cases that support his argument, in which the accused were convicted of offenses of incitement, and emphasized that such cases also involved known, influential figures, as in the case at hand (for example, LCrimA 9066/08 Ben Gvir v. State of Israel (2008) (hereinafter: the Ben Gvir case); CrimA (Jerusalem) 4856/09  State of Israel v. Federman (2010) (hereinafter: the Federman case)). It was further argued that the offenses of which the Applicant was convicted overlap.

 

14.       Justice Joubran referred the application for leave to appeal for hearing by a three-judge panel, and the Applicant’s sentence was ordered in abeyance until the rendering of a decision upon the application for leave to appeal (decision of Nov. 29, 2015).

 

The Respondent's Arguments

 

15.       The Respondent argues that leave to appeal should not be granted since the application concerns the way that current case-law rules were applied in the matter of a specific applicant. Furthermore, the Applicant's primary arguments are directed at findings of fact of the lower courts, and the interpretation of the information filed against the Applicant, and for this reason, as well, the application raises no issue that justifies granting leave. On the merits, it was argued with respect to the offense of inciting racism, that the Applicant's words fulfill the criteria of the near-certainty test of causing a risk. The Applicant's conscious choice to intentionally mention one of the most blatant symbols of hatred of Jews in such a charged situation, and intentionally tie it to a call to protect the Al Aqsa mosque, leads to the conclusion that the purpose of his words was to incite racism. As to the offense of inciting violence, it was argued that one cannot accept the Applicant's argument that his call for an intifada was a call for a global, non-violent, awakening, and that the assumption that the audience understood the speech in an abstract manner, and not literally, stretches the imagination. Furthermore, the context, taken together with statements relating to terrorism and murder committed by the Israeli government, while highlighting the "Al Aqsa", creates, under the circumstances, incitement to violence. It was further noted that the combination of the content along with the circumstances fulfill the offense's probability element that there be a real possibility that the words will lead to violence or terrorism. This is, inter alia, in light of the speaker's prominent status, the audience, the scope of the publicity, the public atmosphere, and the location and subject of the sermon.

 

16.       As to the sentence, it was argued that the Applicant's punishment directly derives from the extraordinary combination of aggravating circumstances in which his actions were committed, and from the blatant violation of the protected values for which the incitement offenses were enacted. It was further argued that the claim of selective enforcement is unbefitting, since the Applicant's matter was treated severely due to his status and the other circumstances of the matter. It was further noted that this is not a precedent-setting punishment, and even if it were, it would not constitute grounds for granting leave to appeal. The Applicant's sentence is measured and precise given the circumstances, and the punishment imposed is very far from the maximum punishment prescribed for each of the offenses of which he was convicted.

 

As to the argument that the offenses, in their essence, overlap and justify one penalty, it was noted that each offense relates to a different part of the sermon and violates a different protected value.

 

The Hearing before the Court

 

17.       In the hearing on January 26, 2016, the Applicant's attorney referred to HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General (2015) (hereinafter:  the Torat Hamelech case), and emphasized that in that matter it was ruled that in order to  maintain a conviction for inciting racism, the  racist statements must be clear, unequivocal and easily understood by those hearing them, which is not so in the case at bar. It was emphasized that the blood-libel narrative is not known to everyone, and that we must ask ourselves whether we are dealing only with a racist opinion or with inciting racism. It is to be noted that, as argued, the law does not prohibit maintaining a racist opinion, but rather prohibits racist practices. As to the offense of inciting violence, it was argued that, in the matter at hand, there was no real possibility of violence. Furthermore, the meaning of the term "intifada" – as noted – is the transfer from a state of passiveness to a state of awakening. Additionally, it was argued that the Applicant's call was addressed to the entire Arab nation and to a non-specific public, and therefore, it is certainly not a call that could lead to a real possibility of violence. As to the matter of punishment, it was noted that the Applicant was judged more severely than a Jewish person accused of committing similar offenses.

 

18.       The attorneys for the Respondent replied that the test in the offenses of inciting racism and inciting violence is always an integrated  test of content and circumstances. They explained that we are concerned with a respected leader who, just the day before, was prohibited from entering the Temple Mount, who stood before a frustrated audience that was not permitted, under the circumstances, to enter the Al Aqsa mosque for Friday prayers, and who delivered a carefully planned sermon. His words fired the unrest and included motifs of blood, war, and battles. He called for praising martyrs, and at the end of the sermon, he made a clear call for an intifada. If that were not enough, the Applicant himself stated, in real time, that he knows that he is inciting. As for the Torat Hamelech case, it was argued that that case addressed a religious text as opposed to a political one, and that in the case at hand there is no value that the text wishes to protect, and that understanding the text and drawing proper conclusions do not demand extraordinary sophistication from the reader. As to the punishment, it was argued that it is not unduly severe and that we are currently witnessing the devastating force of incitement more than ever. Therefore, the court's clear voice should be heard not only on a punitive level, but also as a deterrent, both for the masses and for individuals.

 

Discussion and Decision

 

19.       In light of the  questions of interpretation raised by the case, and especially the broad implications of the matter, we have decided to grant leave to appeal and to hear the application as though an appeal was filed pursuant to the leave granted. I shall recommend to my colleagues that we not grant the appeal on the decision, and that we grant the appeal, in part, in regard to the sentence, as shall be explained.

 

The Offense of Inciting Racism

 

20.       The offense of inciting racism is to be found in sec. 144B of the Penal Law:

 

(a) If a person publishes anything in order to incite racism, he is liable to five years imprisonment.

(b) For the purposes of this section, it does not matter whether the publication did cause racism, and whether or not it is true.

 

Racism is defined in Section 144A of the law:

 

In this Article, “racism" – persecution, humiliation, degradation, a display of enmity, hostility or violence, or causing violence against a public or parts of the population, all because of their color, racial affiliation or national ethnic origin.

 

An extensive discussion of the elements of the offense of inciting racism was presented in CrimA 2831/95 Rabbi Ido Elba v. State of Israel, IsrSC 50 (5), 221 (1996) (hereinafter: the Elba case). The case was heard by a bench of seven justices, and the majority was divided on a number of matters (see Y. Nehushtan "Finding the Ratio Decidendi in Cases of Plurality Decision," 50 (2) HaPraklit 631, 638(5770)). In the Torat Hamelech case, it was explained that in the Elba case the Court was required to first address the question whether the "anything" published pursuant to the language of Section 144B must be inherently racist in order for the offense to materialize. Second, there was a disagreement regarding the need for a near certainty of actual incitement in order for the offense to materialize. According to President Barak's opinion, near certainty is necessary; according to Justice  Mazza, it is not necessary. A third disagreement that arose in the Elba case related to the “foreseeability rule” [dolus indirectus] under sec. 20(b) of the Penal Law – whether the rule applies only to result crimes, or also to conduct crimes that comprise an element of purpose. In the Torat Hamelech case, we did not find those questions relevant to the matter (it should be noted that Justice Joubran, dissenting, discussed the matter of the “foreseeability rule” at length, due to the importance he attributed to applying the rule in offenses of inciting racism), and it appears that these questions are not germane to this application either, since the racist nature of the words or the degree of certainty that the Applicant's words would indeed incite are not at issue, but rather proving the element of a purpose of inciting. There is also no need to rule on the matter of the “foreseeability rule”, in light of the Applicant's clear intention, which emerges from his words, as shall be explained below.

 

21.       I will first briefly address the historical aspect of the "blood libel" narrative. Unfortunately, since the dawn of history, since the days of Haman in the Book of Esther (3:8), Jews have been, and continue to be, the subject of racial persecution all over the world, culminating in the Holocaust of our people in Europe (see my articles: "The State of Israel, the Memory of the Holocaust and the Battle against Antisemitism," in my book Paths of Government and Law: Issues in Israeli Public Law  (5736) 463 (Hebrew); and "Remember what Amalek did unto Thee," ibid., 471 (Hebrew); "On Antisemitism, and the Place and Role of the State of Israel in the War against Antisemitism," 31 Mesua 55-65  (5763) (Hebrew); as well as the pamphlet On Antisemitism (Israel Information Center, 5748) (Hebrew)). The various stories regarding Jews that were disseminated around the world and throughout history are too numerous to count. The best known and prominent is the story of using the blood of Christian children in order to bake Passover matzah. This led to all of the libelous stories about Jews being named "blood libels", an expression that, even today, is used when a person wishes to express strong offense at an accusation. The essence of the matter, obviously without a pretense of exhausting or presenting it as historical research, is presented below.

 

22.       The libel began in England. In 1144, the Jews were accused of killing a Christian child who was thereafter acclaimed as St. William of Norwich. A converted Jew named Theobald of Cambridge testified before the monk Thomas of Monmouth, who had examined the case, that the Jews of Europe conspired to draw a lot each year to determine where a Christian boy would be sacrificed for Passover. Not even one Jew was tried for the accusation, and no one was punished for the murder, but the convert's testimony was perceived as convincing by the masses, and it became the basis for libels in other cities in the decades that followed, which were used to transform those "murdered by the Jews" into saints, to increase the number of churchgoers, and to increase the churches' revenues. The libels moved from England to Germany, to France, and so on, and from the seventeenth century, also to Eastern Europe – Poland and Lithuania -- to Russia, to Muslim countries, and of course, to Nazi propaganda, and was a tool in the hands of antisemites; also see Prof. I. Gutman, “Antisemitism,” The Holocaust Encyclopedia, vol. 1, 98, 104-105 (5750) (Hebrew).  As Prof. Gutman writes, even when a blood libeler such as August Rolling in Prague withdraws "as happens in the cases of libel, the sensational rumor is stronger than the truth that denies it"; see , “Blood Libel,” HaEncyclopea HaIvrit, vol. 26 (5734), 857 (Hebrew) written in part by Prof. Y. Slutsky. Prof. Slutsky also contributed the article on the "Blood Libel" in Encyclopedia Judaica, vol. 4, 1120 (1972); Prof. S. Simonson, "Blood Libel," 17 (2) Etmol 100 (1991) (Matach Technological Educational Center website). This may have been the beginning, but it was not the end, and blood libels spread across Europe and eventually also to Muslim countries. A blood libel that occurred in Damascus in 1840, following the disappearance of a Christian priest and his Muslim servant, achieved special notoriety. Central figures in the Jewish community in Damascus were accused of abducting and murdering the two in order to use their blood to bake matzah. In an investigation that was conducted by the Governor of Syria, and that was exacerbated by the French Consul, the persons investigated were jailed and tortured, and one of them admitted to the act. Bloody riots broke out in Damascus, which only eventually ended thanks to the intervention of politicians and Jewish public figures from Western Europe. Indeed, blood libels did not cease even in modern times. Even in the last century, Jewish communities were horrified by blood libels in various countries – the Tisza-Eslar blood libel in Hungary and the Mendel Beilis trial in Russia (see in this regard, Dr. M. Kutik, The Beilis Trial: A Blood Libel in the Twentieth Century (5739) (Hebrew)); the Beilis trial was so shocking to Russian Jewry that in a greeting sent by a yeshiva student (N.Z Getzel) to his friend Y.E. Botschko, in honor of the latter's wedding, the writer dates the letter as in the "year of the Menachem Beilis Trial", which, in Hebrew gematriya (numerology), adds up to 5674 (the end of 1913); a letter dated 10^th of Cheshvan 5764, in H. Shalem, From Novardok Through Montreux to Jerusalem, about the life of Rabbi Y.E. Botschko, page 33 (5776) (Hebrew)). The blood libel in Nazi Nuremberg also merits mention, and in the early 1950's the Jewish world was shaken by information from the former Soviet Union regarding the dissemination of blood libels.

 

23.       Renowned author Ahad Ha'am (Asher Zvi Ginsberg) (19^th-20^th centuries), addressed the blood libels in his article "Some Consolation," HaMelitz 14 Tishrei 5653 (1892), reproduced in Complete Writings of Ahad Ha’am (5719) (Hebrew), writing that it "is the solitary case among all cases in which the acceptance [the general acceptance with respect to the characteristics of the Jewish people – E.R] does not make us also doubt… it is completely based on an absolute lie… Every Jew who has been brought up among Jews knows unambiguously that throughout the entire Jewish people there is not even a single individual who eats human blood for heavenly purposes" (p. 71, emphasis original). According to him there is “some consolation” in the lesson that the renewal of the blood libel allows the Jews not to surrender to the allegations and to the "general consensus" regarding the characteristics of Judaism "…and the blood libel shall prove. Here, you see, the Jews are right and perfectly innocent. A Jew and blood – could there be two things more completely opposite? ..."

 

24.       My former teacher General (res.) Prof. Yehoshafat Harkabi, in his important book The Arab Position in the Israeli-Arab Conflict (5728) (Hebrew), addressed the matter of the blood libel and describes (p. 250) – among seven reviewed books – a book published under official Egyptian auspices in 1962, titled Talmudic Human Sacrifices, a reprint of a book from 1890, which speaks of "… an indictment … relying on clear-cut evidence … that this nation allows bloodshed and makes this a religious obligation which was prescribed by the Talmud …". That same book addressed the Damascus Libel of 1890 (preceded by the more famous libel of 1840), regarding a young man "who was slaughtered by the Jews in Damascus and whose blood was sucked to be mixed in the Passover matzah dough". Harkabi presents additional books that were published in Egypt during the 1950's and 1960's, and one of which states (1964 – official publication): "The God of the Jews does not suffice with animal sacrifices, but rather it is necessary to appease him with human sacrifices. Thus the Jewish custom of slaughtering children and sucking their blood to mix it in the Passover matzah" (ibid., p. 252). Harkabi ends on an optimistic note (254): "The blood libel as presented in these seven books is terrifying, but the blood libel is not common in the literature regarding the conflict, and it should not be assumed that it was assimilated by the Arab public. It is also possible that it is foreign to the Arabs’ basic attitude towards the Jews, since in the Muslim countries the Jews were not accused of atrocities such as blood libels, poisoning wells and dispersing plagues, as in Christian Europe, and therefore, perhaps one can hope that these ideas will not be accepted. The value of this story is as a symptom, as to what lengths hatred towards Israel can go"; see also note 31 on p. 455 on the historical dimension; and additionally, in another place the Jews are described in Arab literature regarding the conflict, inter alia, as "blood suckers" (p. 315).

 

25.       Some researchers have theorized that the blood libels developed in light of the Christians' erroneous understanding of Jewish customs. Thus, contrary to the customary approach, it has been suggested that the blood libels flourished during the period of the Crusades, based on the Jews' choice to commit suicide and kill their children and their loved ones "for the sake of sanctifying God" so that they would not be forced to convert to Christianity. An event in which dozens of Jews died "for the sake of sanctifying God" occurred in York, England, on March 16, 1190 (I. Yuval "Vengeance and Damnation, Blood and Defamation: From Jewish Martyrdom to Blood Libel Accusation," 58 Zion 33 (5753) (Hebrew)). According to Prof. Yuval, the Christians interpreted the parents' sacrifice of their children for the sake of sanctifying God as lust for murder that was also directed towards Christian children. There were also writings about the connection between the customs of the Purim holiday, and particularly the hanging or burning of Haman and the drawing of lots, and the stories of blood libels (these led to serious controversy; see E. Fleischer's incisive critique "Christian-Jewish Relations in the Middle Ages – Distorted," 59 Zion 267 (5754) (Hebrew), and Yuval's response ibid., and in Yuval's book Two Nations in Your Womb: Jews and Christians – Mutual Perceptions (5760); G. Mentgen "The Creation of the Fiction of the Blood Libel," 59 Zion 343  (5754) (Hebrew); Cecil Roth "The Feast of Purim and the Origins of the Blood Accusation: 8.04 Speculum 520-526 (1933).)

 

26.       In this context, it is difficult not to mention a later incarnation of blood libels – the Protocols of the Elders of Zion. This publication included alleged discussions from confidential meetings held by the elders of the Jewish people during the First Zionist Congress in 1897 conspiring to constitute a world Jewish kingdom that would control the gentiles. The version that was common around the world was written by a Russian priest, Sergei Nilus, and first appeared in 1905 in his book "The Great within the Small". After the Russian revolution and Germany's defeat in the First World War, this essay was distributed widely and translated into many languages (see the article by S. Laskov, "Who Wrote the Protocols of the Elders of Zion," in 18 (6) Et Mol: Iton Letoldot Eretz Yisrael Ve'am Yisrael  110 (1993) (Hebrew)). See also N. Cohn, Warrant for Genocide, The History of the "Protocols of the Elders of Zion" (1971) (Hebrew); see also Judge H. Ben-Itto's important book The Lie that Wouldn't Die: The Protocols of the Elders of Zion (5758) (Hebrew) (English edition: 2005); my essay "'The Protocols of the Elders of Zion' in the Arab-Israeli Conflict in the Land of Israel in the 1920's," 25 Hamizrach Hachadash 37-42 (5737) (Hebrew), reprinted in 3 Biruach Mizrachit 54-58 (Israel Oriental Society, 2006); and Harkabi, ibid., 212-219).

 

27.       Returning to the case at hand: There is little doubt as to the  racist views of the Applicant himself, and upon reading the entire sermon that is the subject of the case, it cannot be viewed as other than racist. However, as was noted in the Torat Hamelech case (para. 32), and as the Applicant's attorney repeatedly emphasized, the question is not the racism of the speaker, but whether the elements of the offense were fulfilled. Before us is a text that the Applicant tried to paint in subdued colors, and that the Respondent tried to paint in vibrant colors, and we must examine its contents and circumstances as a whole. In the case before us, I am of the opinion, like the District Court, that an examination of the statement, and particularly the part upon which the Respondent grounds its arguments, indicates that it is directed at the State of Israel and the Jewish public per se, and that it is extremely difficult to perceive it as directed at another public – Crusaders, Bosnians, Chechens – as the Applicant argues. It appears to me that the matters are as clear as the noon-day sun, and the Applicant's intention comes through loud and clear. A straightforward reading of the part to which the Respondent referred, along with the Applicant's other statements in the sermon, does not leave room for doubt that the intention was not criticism or aspirations regarding the "Israeli occupation" in Jerusalem. In one breath, the sermon includes statements regarding the Israeli establishment, according to which "our blood is in its food, our blood is in its drink, and our blood moves from one terrorist general to another terrorist general". This was the preface, and then it continues with a description of the blood of children mixing in the dough of the holy bread, stated as an antithesis to the behavior of the Muslim public which will preserve the "honor of the synagogues of the Jews". The reference to the kneading of the dough of the holy bread was mentioned in the same breath, as stated by the District Court, with the "children of Europe", in a sermon that in its entirety referred to the relationship between Muslims and Jews. To this one must add the circumstances of the sermon, and not ignore common sense. "We (the Muslims whom the Applicant leads – E.R.) have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children (we don't – but who does? Here is the answer – E.R.) "and those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough (meaning – there are European children whose blood was used to knead the holy bread – E.R.). And now come the rhetorical questions, "Good God. Is that religion? Is that what God wants?" The Applicant is a well-known figure in the Arab world and in Israel. He is one of the religious leaders of the Muslims in Israel. He was tried for security offenses and harming security forces, and was imprisoned therefor. His speech was delivered before a large, angry, emotional crowd near the Temple Mount. It is clear that the sermon was organized and planned, and that the public atmosphere was explosive in light of a claim of harming the Al Aqsa mosque. There is no need for sophistry to understand the essence of the matter. Furthermore, it is clear that one cannot view what was said in a manner that is detached from the broad context – the Israeli-Palestinian conflict, in general, and the Temple Mount conflict, in particular. As the Respondent well stated, the Applicant's choice to mention one of the most blatant symbols of hatred of Jews, in that charged situation, and to tie it to the call to protect the Al Aqsa mosque, leads to the inevitable conclusion that the purpose of his words was to incite racism. I listened carefully to the words of the learned defense counsel, who in his interpretation attempted to present the story differently. Unfortunately, however, a proper look at what was said, in the entire context, does not support that attempt.

 

28.       As to the argument that the Applicant did not intend to refer to the famous blood libels, and that this is evidenced by the fact that he referred to the "holy bread" which is attributed to Christianity, and not to Passover matzah – we should clarify that the holy bread is part of the Christian Eucharistic ceremony called the "liturgy" (the meaning of the word "liturgy" in Greek" is "public worship"). In this ceremony, the priest breaks the bread and pours the wine, symbolizing the body and blood of Jesus, and according to Christian tradition, while their appearance does not change, their substance changes in a process referred to as transubstantiation. The ceremony mentions the last supper of Jesus and his disciples, those who spread his Gospel. In Arabic, the holy bread of the Christian ceremony is called خبز القربان or القربان (Khubz al-Qurban or Al-Qurban) – the bread of the sacrifice, while the Applicant employed the term الخبز المقدس (Al Khubz al-Muqaddas) – the holy bread. This distinction reinforces, but does not in and of itself determine, the position that the Applicant did not refer to the Christian holy bread, but rather to special bread eaten on a Jewish holiday. As mentioned, the Applicant stated, while contrasting to Jews, that "We have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children". We learn from these words, as well, that his intention was to compare the Ramadan holiday to another holiday (the Passover holiday), and not to a routinely occurring ceremony (the Liturgy ceremony). Ultimately, there is nothing else left to be said, and it is clear to me that anyone who showers a riled up audience with strong words to the effect that the Jews knead dough with children's blood – and this doesn't require much sophistication – is simply inciting racism.

 

29.       As noted, the Applicant relies on the Torat Hamelech case, which addressed a petition against the Attorney General's decision not to lay charges, inter alia, for inciting racism and inciting violence against the authors of the Torat Hamelech book due to insufficient evidence;. It would not be superfluous to note that the Torat Hamelech case concerned administrative review of the Attorney General's decision. The Court's role in such a case, and the scope of its intervention, are materially different than those in criminal law, after an information was filed and evidentiary proceedings were held.

 

30.       Moreover, in the Torat Hamelech case the reader of the essay which was the subject of that case must apply punctilious Talmudic logic to a religious-halachic text in order to understand its intention. It is not clear whether the book specifically incites against the Arab public; whether the violent norms described therein apply exclusively to the State and the security forces, or to private people as well; or whether or not it constitutes a "halachic examination" that is relevant primarily to times of war. In the case at hand, there is no need to be an especially "learned scholar" to understand what the Applicant meant. The issues were placed "on the table", and do not require discussion. It should be added that in the Torat Hamelech case, my colleague Justice Joubran was of the minority opinion that in light of the reality of our times and the social climate upon which he elaborated, it is necessary to lower the bar for filing charges in regard to the offense of inciting racism, which, in his opinion, was too high. In his view, the excessively high bar that the Attorney General set was expressed in a number of points in his decision in that case, including narrowly interpreting the element of the purpose element in the offense of inciting racism, and the lack of reference to the “foreseeability rule”; analyzing content in a manner that was lenient with the authors; and a faulty comparison to the Elba case. Examining the Applicant's words in accordance with the criteria upon which my colleague Justice Joubran elaborated in the Torat Hamelech case would, a fortiori, indicate that the Applicant's words, which, as mentioned, do not require deep interpretation as was necessary in regard to the "Torat Hamelech" halakhic text, amount to incitement.

 

31.       In summary, we do not grant the appeal on the conviction of the offense of inciting racism.

 

The Offense of Inciting Violence

 

32.       I am of the opinion that it is also inappropriate to grant the appeal with respect to the conviction for inciting violence. This offense is grounded in Section 144D2 of the Penal Law:

 

(a) If a person publishes a call to commit an act of violence or terror, or praise, words of approval, encouragement, support or identification with an act of violence or terror (in this section: an inciting publication) and if – because of the inciting publication's contents and the circumstances under which it was made public there is a real possibility that it will result in acts of violence or terror, he is liable to five years imprisonment.

(b) In this section, "act of violence or terror" – an offense that causes a person bodily injury or places a person in danger of death or of severe injury.

(c) The publication of a true and fair report about the publication prohibited under subsections (a) and (b) does not constitute an offense under this section.

 

As noted, the Respondent wished to ground the Applicant's conviction of this offense on his words: "It is now your duty to instigate an Islamic Arab intifada from ocean to ocean".

 

According to the Applicant, the term "intifada" means awakening, and his entire intention was a global awakening of awareness and protest, but not of violent acts. It is very difficult to accept this argument. This term, which has become as customary and common as if it has been here forever, referred, in day-to-day discourse at the relevant time, to two periods of uprisings that were characterized by acts of terror – 1987-1991 and 2000-2005. The first period was particularly, but not only, characterized by rock throwing; the second period was particularly, but not only, characterized by suicide bombers and numerous casualties. This term became a "generic name" for a violent Palestinian uprising. To clarify, see the definition of the term "Intifada" in the Even Shoshan Dictionary (Updated and Revised for the Millennium) (2007)): "The name of the uprising of the Arab population in the areas of Judea, Samaria and the Gaza Strip, against the Israeli control thereof". It is easy to understand that this is how the term is perceived by all, and perhaps a fortiori, by those listening to the words of the well-known Applicant from whom there is no reason to understand them other than literally. It is inappropriate to be disingenuous and to use "classical dictionary" terminology, i.e., intifada in the basic dictionary sense of "awakening". Furthermore, the argument that the sermon was aimed at a universal and not a particular audience does not change the state of affairs. Nor does it transform the Applicant's words into a theoretical, abstract approach, lacking any practical content in Israel or abroad.

 

33.       Indeed the Applicant's learned counsel claimed that mentioning a "judge or a scientist" as the audience of the call indicates that it was not violent by its nature. This argument is captivating, but given the meaning of the term that has already been established and is deemed a matter of judicial notice, it is difficult to accept.

 

34.       In LCrimA 2533/10 State of Israel et. al. v. Michael Ben Horin (2011) (hereinafter: the Ben Horin case), upon which the parties and the lower courts elaborated, it was ruled that the offense of inciting violence is conditioned upon the fact that the publication, by its contents and circumstances, shall, with a probability of a real possibility, cause an act of violence to be committed. It was explained that it is necessary for there to be a linkage between the publication and the actual outcome in accordance with the real possibility criterion "not more than that but not less than that" (para. 6, per Hendel J.), and that the Court must examine the case in its entirety, without determining primary criteria in advance. It was ruled that, inter alia, consideration shall be given to the identity of the publisher and to the public atmosphere, to the type of violence at hand, to the scope of the group exposed to such violence, to the scope of the publication and its target audience, to the context, the location and the media of the publication: "One must ask, inter alia, who said, what was said, where it was said, in what manner it was said, to whom it was said and in what framework it was said" (para. 7). The Combating Terrorism Bill, 5775-2015 (Government Bills 5775, 1067), is interesting in this context, as it draws a distinction between "calling to commit an act of terror", for which it is not necessary that the call result in an act of terror being committed in order for the elements of the offense to be fulfilled, as opposed to the alternative of "publishing words of praise, identification, support, approval or encouragement, with respect to an act of terror", which includes a probability criterion, which is different than the existing one ("reasonable possibility… of committing an act of terror or committing an offense of violence") (sec. 27). It was noted in the Explanatory Notes of the bill that the "proposed probability criterion strikes a proper balance between the need to prevent an infringement of the values protected by the prohibition, and the protection of the principle of freedom of expression, as opposed to the real possibility criterion, which is difficult to assess and prove, and therefore, does not allow sufficient protection of the values that are protected by the prohibition, considering the anticipated damage from the mere inciting publication" (p. 1096); regarding the matter of the legislative chain of events that led to the current draft of the law, see also the Torat Hamelech case, paras 75-77.

 

35.       As noted, the Applicant is a well-known, influential figure among the Arab public, who delivered a speech to an angry crowd, near the Temple Mount at Friday prayers, the Muslim's holy prayers, during a period in which the streets of Jerusalem, and particularly in the areas populated by Arabs, were roiled. As was also explained by the lower courts, the general context of the sermon delivered by the Applicant, the repeated use of the word "blood" and his words "we will meet God as martyrs in the area of the Al Aqsa mosque", make it difficult to err as to the meaning of his words. It appears to me that it is evident to any reasonable person that we are not dealing with a theoretical discussion, but rather with a practical call. And in order to remove any doubt, the Applicant's words in real time testify as to his intentions: "It is possible that they will come to me and tell me you are inciting. They want to destroy our Al Aqsa and they are coming and telling me you are inciting. So, my brothers, I am telling you, and I am saying that we are not alone in this struggle." The combination of the content of the words and the circumstances indeed fulfills the requirement of a real possibility that the Applicant's words would lead to violence, sufficient to ground the elements of the offense. The conviction of the offense of inciting violence is upheld.

 

36.       Last, but not of least importance, I would note that we are cognizant of the status of freedom of expression in our system, the importance of its reinforcement, and the restraint required in applying criminal law in such contexts. However, as has also been emphasized on more than one occasion, freedom of expression does not stand alone (LCA 10520/03 Ben Gvir v. Dankner (2006); and see my dissenting opinion in CFH 2121/12 Anonymous v. Dr. Ilana Dayan, (2014), paras. 27-40), and there are exceptions that are worthy of criminal investigation. In the Torat Hamelech case, I referred (para. 58) to the caution of the Attorney Generals in exercising their authority to approve an information in the matter of inciting racism and inciting violence. I shall stress that in making such a decision there is even some room for consideration of the possibility that filing an information actually affords exposure and publicity to deviant, hateful expressions, and thus somewhat rewards the person wishing to incite. I am of the opinion that the case at bar clearly crossed the limits of legitimate, even if harsh and outrageous, freedom of expression. The Applicant's words went far too far.

 

37.       Having said that, it is important to emphasize loudly and clearly, one cannot but be outraged by expressions of hatred that are directed towards any person or public whose only sin is their religious affiliation, their national origin, race or color, and we must all, and certainly the courts, take a stand against such expressions of hate, and must unequivocally denounce them. This is the long and short of the matter. Our ruling does not derogate in any manner from the obligation to act for equality for Arabs in Israel (and see my article "On Equality for Arabs in Israel," in my book Paths of Government and Law: Issues in Israeli Public Law, 276 (5763) (Hebrew)), since "I have had the opportunity on more than one occasion to repeat such words regarding equality for Arabs… out of deep conviction – that it can be different – in a state that not only by its definition is Jewish and democratic, and  whose the Declaration of Independence speaks of equality, but which has a historical ethos of the persecution of our people throughout its history as victims of racism, we are commanded to treat minorities equally" (the Torat Hamelech case, para. 37), and nothing more need be said.

 

38.       In conclusion:  the appeal of the decision is denied.

 

The Sentence

 

39.       As to the punishment, both parties addressed the forces pulling in each direction – the extraordinary severity of the words that were spoken by the Applicant, on the one hand, and the fact that he was not convicted of other offenses, as well as the prevailing punitive policy, on the other hand. The normative issue in the case at hand concerns the severity of the act, and it is here that I agree with the position of the Respondent, in principle. I am of the opinion that the range of punishment that the Magistrates Court proposed is appropriate, considering the interests and values concerned. As for the punishment itself, the case law varies; see the Ben Gvir case, which imposed community service and a suspended sentence for offenses of inciting racism and supporting a terrorist organization, and the Federman case, which imposed community service and a suspended sentence for offenses of inciting racism, inciting violence and criminal attempt; as opposed to CrimC (Jerusalem) 44725-12-14 State of Israel v. Shalabi (2015) which imposed a nine-month custodial sentence, as well as a suspended sentence for offenses of inciting violence and supporting a terrorist organization, and CrimC (Jerusalem) 44930-21-14 State of Israel v. Aabdin (2015), which, inter alia, imposed a ten-month custodial sentence and a suspended sentence for offenses of inciting violence and supporting a terrorist organization. However, no single case is similar to another. Indeed, in the Federman and Ben Gvir cases, in 2008 and 2010, respectively, actual imprisonment was not imposed, as it was in other cases (see for example CrimA 71624/04 Paniri v. The State of Israel (2007), in which the defendants were convicted of offenses of defacing real estate and inciting racism), but given the increasingly widespread expressions of ideologically-based violence and hatred, the case-law trend has been increasingly strict, both to deter and as an expression of deep contempt for and revulsion at such statements and actions (see the recent decision in CrimA 5794/15 State of Israel v. Tuito (January 31, 2016), in which the punishment of the perpetrators of the arson of the Bilingual School in Jerusalem was increased). Additionally, the Applicant's attorney argued that the cases he cited, like the case at hand, concerned influential personages, and as noted, custodial sentences were not imposed. However, the cases would not appear comparable. In the case at bar we are faced with a person who is a very influential religious and spiritual leader, as opposed to the figures the Applicant's attorney mentioned who are not clergymen, and whose influence extends only to limited publics.

 

40.       Lastly, I am not persuaded by the argument that since we are addressing two offenses that relate to the same act, and in light of their nature, it was inappropriate to increase the Applicant's punishment following his conviction for the offense of inciting racism. Section 186 of the Criminal Procedure (Consolidated Version) Law, 5742-1982, prescribes: "The court may convict a defendant for each of the offenses for which his guilt is supported by the facts proven before it, but it will not punish him more than once for the same act." In CrimA 9826/05 Jamal Mahajna v. State of Israel (2008), this Court addressed the interpretation of the phrase "the same act" and the criteria therefor, stating that "the factual-typological test analyzes the entire set of facts composing the criminal event, and examines whether the defendant's criminal conduct constitutes a single, indivisible physical act, or a series of acts that can be divided and distinguished. The substantive-moral test examines the nature of the harm the specific offense caused, the nature of the interests protected by the offense, the importance of the value that was infringed, and the nature of the moral considerations that underlie the protection of the victim of the offense. In the said framework, considerations of deterrence are also taken into consideration, which concern granting due weight to the severity of the offense in the framework of punishing the offender, in order to send a deterrent message to potential criminals" (para. 18, per Beinisch P.). It is only natural that there is a partial overlap of the protected values that underlie each of the offenses that are the subject of the application, such as protecting public safety – and this is true with respect to many other offenses that are not related to expression and incitement – however each of them comprises additional protected values. Moreover, and of no less importance, as has already been noted, we are addressing different and separate parts of the Applicant's sermon, each of which, in and of itself, fulfills the elements of the relevant offense.

 

41.       Nevertheless, and not without some hesitation, I am of the opinion that a degree of leniency would be in order. The lower courts gave appropriate thought to the various considerations and concrete circumstances, however in light of the fact that in the nine years that have passed since the event, the Applicant has not committed additional, similar offenses, and in light of the punitive policy that prevailed at the time, it would appear just to show some leniency. The Applicant's sentence shall, thus, be set at nine months of imprisonment, and the suspended sentence shall remain unchanged.

 

42.       Conclusion and summary: I propose that we deny the appeal of the District Court judgment, and uphold that decision. As for the sentence, I propose that the Applicant's sentence be reduced as stated in paragraph 41. The Applicant shall report to the Nitsan Detention Center on May 8, 2016 by 10:00, to begin serving his sentence. The terms of release shall remain unchanged until that time.

 

Deputy President

 

Justice S. Joubran:

 

I have read the opinion of my colleague Deputy President E. Rubinstein, and while I concur with the conclusion that the Applicant's conviction of the offense of inciting racism should be upheld, I am not of the opinion that it was appropriate to convict him of the offense of inciting violence. Were my opinion heard, I would recommend acquitting the Applicant of that offense, and accordingly reducing his punishment such that he would serve his sentence by way of community service.

 

The District Court unanimously convicted the Applicant of the offense of inciting racism, and convicted him of the offense of inciting violence by a majority opinion of Judges D. Mintz and E. Nachlieli-Khayat, with Judge A. Romanoff dissenting. My opinion is as that of the dissenting Judge Romanoff, as I shall explain below.

 

As noted in my colleague's opinion, the Applicant’s conviction on the offense of inciting violence is based on the following words in the sermon he delivered in Jerusalem:

 

We are asking each Muslim and Arab in the Islamic and Arab present, be it a judge or a scientist or a party or a public institution or factions or nations, we aspire from them now, it is now their duty to assist the Palestinian nation. It is now their duty instigate an Islamic Arab intifada from ocean to ocean, in support of holy Jerusalem and the blessed Al Aqsa mosque.

 

As opposed to the offense of inciting racism, in order to convict of the offense of inciting violence it is not sufficient to say things of an inciting content. Rather, one must examine whether the content and the circumstances of the publication present a real possibility of resulting in terror or a violent act (HCJ 2684/12 The 12^th of Cheshvan, The Movement for the Strengthening of Tolerance in Religious Education v. Attorney General, para. 9 of my opinion (December 9, 2015); LCrimA 2533/10 State of Israel v. Ben Horin (December 26, 2011)).

 

The Applicant argues that he did not mean to arouse a violent intifada, and during his interrogation by the police, he explained his intentions as follows:

 

I said that we covet all of the elements of the Arab and Islamic heritage – its leaders, clergymen, media, parties and family and non-family institutions and nations to instigate an intifada that supports holy Jerusalem and the blessed Al Aqsa mosque. And the meaning is completely clear – it is an invitation to devote our best efforts in order to preserve their duty to protect holy Jerusalem and the blessed Al Aqsa mosque. And this is the leaders' role, which is expressed in a political role, and this is also the same role of clergymen to make people fond of the Al Aqsa mosque. And this also relates to the media that need to emphasize the problem in Jerusalem and at the blessed Al Aqsa mosque. This is also expressed in the parties and the family institutions and the nations that need to emphasize and apply pressure on their leaders to take a political initiative to support holy Jerusalem and the blessed Al Aqsa mosque (ibid., lines 86-95; emphasis added – S.J.).

 

In his testimony before the Magistrates Court, the Applicant testified as follows:

 

I am not exaggerating that the specific word intifada is an international word, and the Jews also use this word. Shulamit Aloni also used this word, and it is also in all languages.

[…]

Its origin is awakening. Intifada means that a person was sleeping and suddenly awoke, and its meaning is that I want to do something, meaning that I am giving all I have to this thing, and therefore now they say an economic or political or educational intifada, today the whole world uses this word. While I say we are calling the governor, the scientist, the parties, the media or the nation to do an intifada, before that I say to them, before I spoke about intifada, I say they should help. After that I say that there will be an intifada. I am calling on them to help the Palestinian people as much as they can, certainly, while I am speaking these words, I certainly, I am not waiting for the governor to do an intifada or how the media will do an intifada, I certainly mean a cultural, political and media intifada" (protocol of the hearing, pp. 26-17; emphasis added – S.J.).

 

I reread both the Applicant's words and the opinion of my colleague the Deputy President over and over again, and I still have doubt whether the content and circumstances of the words amount to a real possibility of leading to an act of violence.

 

My colleague is of the opinion that the combination of the words' content and circumstances fulfills the requirement of a real possibility that the Applicant's words would lead to violence (see para. 35 of his opinion). However, my opinion is different. Indeed the term "intifada" (انتفاضة) generally refers to violent action, but I am of the opinion that in the context in which the words were spoken – upon which I shall immediately elaborate – we cannot dismiss the Applicant's explanation that it was not incitement to violent action, but rather a call for a general, not necessarily violent, recruitment to protect what appeared to the Applicant as a violation of a holy site.

 

We should bear in mind that the sermon that was delivered by the Applicant was made against the background of a claim raised among some of the Muslim public regarding the Israeli authorities' intention to harm one of the holy sites of the Muslim religion – the Al Aqsa mosque. This is evident from the Applicant's repeated emphasis in his sermon that the matter at hand is not a local matter that relates only to local residents, but rather a matter that concerns  all the members of the Islamic faith per se.

 

This background must be considered in the framework of examining the circumstances of the publication, in order to reach a conclusion regarding the real possibility of matters leading to violence. In my opinion, there is signal importance to the universality of the audience addressed in the sermon in understanding the meaning of all of the words stated above. It is my opinion that the fact that the Applicant was not speaking to a specific, energized, political audience, but rather to a general audience all around the world, reduces the specificity of the call, and consequently reduces the possibility that such a call would, as a real possibility, lead to committing an act of violence. By a gross analogy – just as the universality of the common calls for "world peace" reduce the probable  influence of the call on bringing peace, I am also of the opinion that general calls for a "world intifada" do not have a real potential of resulting in violence.

 

Under these circumstances, I doubt whether the Applicant's sermon could create such "real possibility" of the commission of a violent act, as required by the law,  and therefore, it is my view, as noted at the outset, that the Applicant should be acquitted of the offense of inciting violence.

 

As for the punishment, since I believe that the Applicant should be acquitted of the offense of inciting violence, and since a considerable period of time has elapsed since the event which is the subject of this case, during which time he did not commit additional, similar offenses, I recommend to my colleagues that the Applicant's punishment be set at six months of imprisonment to be served by community service.

 

                                                                                                JUSTICE

 

Justice A. Baron:

 

1.The principle of freedom of expression is one of the cornerstones of a democratic regime. Infringing freedom of expression "is like harming the soul of democracy" (CrimA 255/68 State of Israel v. Moshe IsrSC 22 (2) 427, 435 (1968)). In the words of Justice N. Hendel, "The test of freedom of expression is not when its content is on the straight and narrow, but rather when it is on the margins of its margins. As has been held: Freedom of expression is not only the freedom to express or to hear things that are acceptable by all. Freedom of expression is also the freedom to express dangerous, infuriating and deviant opinions that disgust the public and that it hates' (HCJ 399/85 Kahane v. Managing Board of the Israeli Broadcasting Authority, IsrSC 41(3) 255) " (LCrimA 2533/10 State of Israel v. Ben Horin, para. 5 (December 26, 2011); hereinafter: the Ben Horin case). However, as any other constitutional right in Israeli law, the right to freedom of expression is not absolute, and it may retreat before other important interests and principles. The criminal prohibitions of inciting racism and violence were meant to protect the existence of the State of Israel as a Jewish and democratic state, human dignity and equality among people, social order and public safety (see: the opinion of President A. Barak in CrimA 2831/95 Elba v. State of Israel IsrSC 50 (5) 221, 285-286 (1996); hereinafter: the Elba case). Indeed, these offenses naturally infringe freedom of expression to a certain degree. However, there is no doubt that such infringement serves a proper purpose. The proportionality of the infringement depends upon the interpretation given to the offenses of inciting racism and violence.

 

In all that regards Ra’ed Salah's sermon, the essentials of which were cited by my colleague Deputy President E. Rubinstein, I am of the opinion that there is no difficulty drawing the line between words that are protected by the principle of freedom of expression and statements that amount to a call for racism, violence and even terror, and which constitute a real danger to public safety and are therefore prohibited. The speaker's words shout. The speech was charged and provocative, it was delivered during tense times and in a tempestuous atmosphere as a result of the prohibition of prayers at the Al Aqsa mosque, and the speaker explicitly calls for violent action against the State of Israel and the Jewish people. Therefore, I concur in the opinion of my colleague the Deputy President that the appeal on the ruling should be denied and that the District Court's judgment should be upheld.

 

2.The Applicant, Sheikh Ra’ed Salah, is a public and religious leader, a person of standing among Muslim Israeli Arabs. He served in the past as the mayor of Umm-Al-Fahm (1989-2001), and since his retirement from that position, has served as the head of the Northern Faction of the Islamic Movement in Israel – the same faction that was recently designated by the Government as an "unlawful association" (Decision of the Political-Security Cabinet of November 17, 2015). The event being addressed occurred in 2007, and the background was archeological digs that the State was conducting near the Temple Mount, in preparation for restoring the bridge at the Mughrabi Gate in the Old City of Jerusalem. Severe accusations against the State of Israel began to be heard on the Arab street – that it is intentionally destroying archeological findings from various Islamic periods that were found in the area of the dig. Concurrently, prayers at the Al Aqsa mosque were also prohibited. At that point in time, the relationship between Israeli Arabs and the Israeli establishment were particularly charged, and even explosive. This is the setting of the event that is the subject of the appeal, in which Ra’ed Salah was a main actor.

 

On Friday, February 16, 2007, Ra’ed Salah stood on a stage that was set up in the Wadi al-Joz neighborhood in Jerusalem, and delivered a speech. In front of him was a large audience of approximately 1,000 people, including hundreds of Ra’ed Salah's supporters who had arrived from the Northern region, as well as many media outlets. As mentioned, the crowds gathered there after they were prohibited entry to the Al Aqsa Mosque for the purpose of Friday prayers and a sermon by Ra’ed Salah. The sermon that he delivered was tempestuous, full of expressions of hatred towards Israel and the Jewish people, and its clear message was that they should be expelled from Jerusalem and from the Al Aqsa mosque. In his speech, Ra’ed Salah repeatedly presented the State of Israel as conducting a bloody battle against the Palestinian people over holy Jerusalem and the Al Aqsa mosque. The speech repeatedly used the words "blood" and "martyrs", and inter alia, Ra’ed Salah accused the Israeli establishment of wanting to build the Temple in Jerusalem "while our blood (the blood of the Palestinian people - A.B.) is still on its clothes, our blood is still on its doors and our blood is in its food, and our blood in its drink and our blood moves from one terrorist general to another terrorist general". It was also stated that the ranks of such Israeli "generals" "were made of the skulls of our martyrs". Ra’ed Salah repeatedly emphasized that the battle for Jerusalem is a bloody battle that is still continuing, and that "We (the Palestinian people – A.B) do not fear other than God. The most beautiful moments in our destiny are when we will meet God as martyrs  in the area of the Al Aqsa mosque". Ra’ed Salah was charged with the offenses of inciting racism and violence for these two specific expressions in the sermon, which I shall now address.

 

3.While describing the day after Jerusalem shall be freed from the yoke of the Jewish occupation, Ra’ed Salah explains to his listeners that the Palestinian people will not take revenge on the Jews, since Palestinians are not child murderers like the Jews, as is told in the famous blood libel:

 

We are not malicious and we shall not be malicious, and we shall also preserve the dignity of the synagogues of the Jews. We are not a nation that is based on values of revenge. We have never allowed ourselves, and listen well, we have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children. And those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough. Good God, is that religion? Is that what God wants? God will yet deal with you for what you do…

 

For these words, Ra’ed Salah was charged and convicted of inciting racism. Further on in his sermon, Ra’ed Salah called upon his listeners to instigate an intifada to free Jerusalem and the Al Aqsa mosque.

 

We are asking each Muslim and Arab in the Islamic and Arab present, be it a judge or a scientist or a party or a public institution or factions or nations, we aspire from them now, it is now their duty to assist the Palestinian nation. It is now their duty to instigate an Islamic Arab Intifada from ocean to ocean, in support of holy Jerusalem and the blessed Al Aqsa' mosque.

 

For this call for an intifada, Ra’ed Salah was charged and convicted of inciting violence.

 

4.Section 144B(a) of the Penal Law, which addresses the prohibition of inciting racism, instructs that "If a person publishes anything in order to incite racism, he is liable to five years imprisonment". This is a conduct crime: the "publication" is the actus reus; the "anything" is the circumstance; and "in order to incite" is the mens rea. A number of questions have arisen in case law regarding the manner of proving these elements, and inter alia, there is a view that the "anything" that is published must comprise a racist message which could, with near certainty, harm public safety (see: the Elba case, pp. 290-291, per Barak P.; and HCJ 2684/12 The 12^th of Cheshvan the Movement for the Strengthening of Tolerance in Religious Education v. Attorney General, para. 9, per S. Joubran J. (December 9, 2015); hereinafter: the Torat Hamelech case). In the Torat Hamelech case, my colleagues Justice E. Rubinstein and Justice S. Joubran disagreed on the question whether one can use the “foreseeability rule” to prove the "purpose" in the offense of inciting racism. However, the case at hand does require that we rule on these weighty questions, since the fulfillment of the actus reus, mens rea ("purpose") and even the probability test ("near certainty") is entirely clear from the sermon itself and the circumstances in which it was delivered.

 

Section 144D2(a) of the Penal Law, which addresses the prohibition of inciting violence or terror, provides that "If a person publishes a call to commit an act of violence or terror, or praise, words of approval, encouragement, support or identification with an act of violence (in this section: an inciting publication) and if – because of the inciting publication's contents and the circumstances under which it was made public there is a real possibility that it will result in acts of violence or terror, he is liable to five years imprisonment." The level of proof prescribed for this offense, which is also a conduct crime, is lower than the level of proof for the offense of inciting racism. While the offense of inciting racism requires a special mental element of "purpose", the mental element required for the offense of inciting violence is only awareness. The bar of the probability element in the offense of inciting violence ("real possibility") was also explicitly set lower than the probability criterion set by case law for the offense of inciting racism ("near certainty") (see: the Torat Hamelech case, paras. 75-76, per Rubinstein J. (December 9, 2015)). The elements of the offense of inciting violence are also entirely met by Ra’ed Salah's sermon, as I shall explain:

 

The incitement offenses are based on expressions –  on words. As such, the fulfillment of the elements of the offenses – including the meaning of the words, the extent of the attendant damage, and the intention of the speaker – are deduced from the content of the inciting publication and the entirety of the circumstances:

 

Of course, the identity of the publication, the publisher and the public atmosphere are important facts, as noted, but they do not stand alone. Additional considerations should also be considered, such as the type of violence concerned, the scope of the group exposed to such violence, the scope of the publication and its target audience, the context, the location and the media used for the publication. One must ask, inter alia – who said, what was said, where it was said, in what manner it was said, to whom it was said and in what framework it was said" (the Ben Horin case, para. 7).

 

It should be noted that this was stated in the context of the offense of inciting violence, however it applies, mutatis mutandis, to the offense of inciting racism (see: the Torat Hamelech case, para. 77).

 

5.Ra’ed Salah argued before us that his words should not be interpreted literally – but rather the sermon should be "read sensitively", and his calls should be heard through a "constitutional ear". In brief, according to Ra’ed Salah, when he called for an intifada he meant the literal meaning of the word – i.e., an awakening, and the message he wished to deliver was a call for a global awakening in the Arab world, for awareness, for protest, and by no means for violent action. With respect to the mentioning of the blood libel in his sermon – Ra’ed Salah denies that his intention was the libel that Jews use the blood of Christian children to prepare Passover matzah. According to him, it was a general reference to crimes committed in the name of religion all over the world, including Crusades in the past, and crimes in Bosnia and Kosovo, for example, in the present. Given the above, according to Ra’ed Salah, the sermon that he delivered is protected by the constitutional protection that is granted to political expression, as part of freedom of expression, even if only by the benefit of doubt.

 

As has already been stated, the words of incitement in Raed Salah's sermon shout out from the page. They cannot be misunderstood. He is indeed attempting now to present the words he spoke as being ambiguous, as such that can be interpreted in a softer manner than that which is attributed to the sermon. However this is nothing more than impossible sophistry and retrospective justification. The meaning of the text is examined as it is heard in real time, by the inflamed audience – and not in "laboratory conditions" and while turning to dictionary definitions. I would reiterate that the same sermon with which we are dealing was heard against the background of a tempestuous, impassioned public atmosphere, which was created when the Al Aqsa mosque was closed to worshipers. Ra’ed Salah, who has a reputation of denying the legitimacy of the State of Israel, added fuel to the fire with his speech. He delivered a sermon full of expressions of hatred and violence against the Jewish people, woven with repeated motifs of "blood" and "martyrs". The well-known blood libel, which is mentioned in Ra’ed Salah's sermon, is a symbol of hatred of Jews. Tying it with the call for an intifada clarifies that the speaker is not calling for an "awakening" as he retroactively claimed – but rather for a violent uprising. It is not superfluous to state in this context that Ra’ed Salah's sermon was delivered by him after he had already been warned by the Orr Commission (Commission of Inquiry into the Clashes Between Security Forces and Israeli Citizens in October 2000), due to his responsibility for the riots that broke out. The Commission, inter alia, found as follows:

 

As the head of the Northern branch of the Islamic Movement, the Mayor of Umm al-Fahm and a public personage, he was responsible during the period preceding the events of October 2000, including the years 1998-2000, for transmitting repeated messages encouraging the use of violence and threatening violence as a means of achieving objectives of the Arab sector in the State of Israel. These messages referred also to the purpose that was defined as freeing the Al Aqsa mosque. Additionally, he held mass meetings and employed tempestuous propaganda methods to arouse an inflamed public atmosphere around this sensitive issue. By all that is stated above, he made a substantial contribution to inflaming the atmosphere and to the violent, widespread outbreak that occurred in the Arab sector at the beginning of October 2000.

 

Moreover, at the time Ra’ed Salah delivered the sermon, there was a restraining order prohibiting him from being in the Old City of Jerusalem or within 150 meters therefrom – after having led an unlawful gathering of approximately 30 people at Dung Gate in Jerusalem, also related to the performance of works at the Mughrabi Gate. Ra’ed Salah was charged with having assaulted one of the policemen that had been stationed there to block the rioters from moving towards the area of the works, having spat at his face, and having muttered to him "you are racists and murderers, you have no honor". For these actions, he was convicted of offenses of participating in a riot and assaulting a police officer in order to prevent him from performing his duty, and was sentenced to imprisonment and monetary damages to the policeman.

 

6.Hence, the contents of the sermon and the entirety of the circumstances surrounding the situation in which it was delivered, clearly testify to the existence of the actus reus and the mens rea required for the offenses of inciting racism and inciting violence. Using words carries great, and even, at times, destructive, power; therefore it has been said: "Death and life are in the power of the tongue" {Proverbs 18:21]. Leaders and public figures have a heightened duty in this regard, and particularly in the charged climate of the Israeli-Palestinian conflict. The words of my colleague Justice S. Joubran are particularly apt:

 

Ill winds of racism and hatred of the other which are blowing in our country are leading to more frequent, racist and religious-based violent outbursts. Racist expressions are expressed not only on street corners, or by speakers who represent "extreme margins", but also by public figures and politicians who are considered part of the mainstream of Israeli society (Yuval Karniel ”Racism, Media and Defamation – Can a Racist be Called is a 'Nazi'?" 11 Hamishpat 409, 434 (5767) (hereinafter: Karniel) (Hebrew)). In the current climate – in which inciting racism and violence has become a common sight – there is a clear need for the authorities responsible for the enforcement and implementation of the law to stand strong and assist in eradicating the phenomenon.

…

I am of the opinion that in this reality in which words of incitement written with a sharp pen lead, on more than one occasion, to lethal use of a sharp knife, we are obligated to consider cases such as the one before us with greater diligence, including charging and convicting in appropriate cases. (the Torat Hamelech case, paras. 12-13).

 

7.Now to the sentence. As is well known, it is not customary for an appeal instance to intervene in sentencing, except in extraordinary cases of significant deviation from proper punitive policy or a material error in the sentence. This is all the more relevant when we are concerned with a third incarnation of proceedings. I would not have intervened in the sentence imposed upon Ra’ed Salah for the offenses of which he was convicted – even though it was at the high end in comparison to other cases addressed in the case law. However, in the disagreement between my colleagues, I find it appropriate to join the position of the Deputy President that the custodial sentence be reduced from 11 to 9 months.

 

                                                                                                JUSTICE

 

Decided by a majority of opinions as stated in the judgment of Deputy President, E. Rubinstein.

 

Given today, the 10^th of Nissan 5776 (April 18, 2016).

 

 

Deputy President                                Justice                                     Justice

 

 

[Emblem]

 

In the Supreme Court as a Court of Criminal Appeals

 

CrimA 99/14

CrimA 1829/14

CrimA 1899/14

 

Before:                                    The Honorable Justice E. Rubinstein

                                    The Honorable Justice U. Vogelman

                                    The Honorable Justice D. Barak-Erez

           

 

The Appellant in CrimA 99/14, and Respondent in CrimA 1829/14 and CrimA 1899/14:	The State of Israel
The Appellant in CrimA 1829/14	Golan Madar
The Appellants in CrimA 1899/14:	1.Ofer Investments Ltd. 2.Ofer Development and Investments Ltd.

 

                                                     v.

 

 

The Respondent in CrimA 99/14

Melisron, Ltd.

 

                                    Appeals on the verdict and sentencing handed down by the Tel-Aviv District Court on November 19, 2013 in CrimC 23842-11-11 by Judge K. Kabub

 

Date of session:                               1st Av, 5774 (July 28, 2014)

 

 

On behalf of the Appellant in CrimA 99/14, and Respondent in CrimA 1829/14 and CrimA 1899/14:	Adv. A Bachar, Adv. A Tabenkin
On behalf of the Appellant in CrimA 1829/14:	Adv. G. Adereth, Adv. O. Adereth, Adv. J. Chen, Adv. M. Rosen-Ozer, Adv. E. Ben-Moshe, Adv. Y. Shefek, Adv. R. Hotam
On behalf of the Appellants in CrimA 1899/14 and the Respondent in CrimA 99/14:	Adv. P. Rubin, Adv. E. Harel, Adv. H. Shimon

 

 

 

 

Judgment

Justice E. Rubinstein

1.Before us are three appeals on the judgment of the Tel Aviv District Court (Judge K. Kabub) in CrimC 23842-11-11 (verdict dated November 19, 2013; sentence dated January 26, 2014). The case revolves around offenses in securities, and there are two primary issues before us: first, whether one should be convicted of the offense of manipulation under section 54(a)(2) of the Securities Law, 5728-1968 (hereinafter: “the Law” or “the Securities Law”), where it was found that the motivation for committing the offenses was mixed – a fraudulent intent alongside a legitimate financial intent; and second, under what circumstances should a corporation be held criminally responsible for criminal offenses committed by an officer who is considered to be an organ of the corporation.

The Indictment

2.On November 3, 2010, the indictment in our matter was filed with the Tel Aviv District Court against the following defendants:

The First Defendant, Avraham Levi (hereinafter: “Levi”), who served in the time period relevant to the indictment as the CEO of Ofer Investments, Ltd. (hereinafter: “Ofer Investments”), acting CEO of Ofer Development and Investments Ltd. (hereinafter: “Ofer Investments”; both companies together will be hereinafter referred to as “Ofer”), interim CEO of Melisron Ltd. (hereinafter: “Melisron”) and director of Melisron. Additionally, Levi held approx. 3% of Melisron’s shares. As part of his position, Levi was an authorized signatory in all three corporations’ accounts and managed their financial affairs alongside the Second Defendant.

The Second Defendant – the Appellant in CrimA 1829/14 – Golan Madar (hereinafter: “Madar”), served in the relevant time period as the financial manager of Ofer Investments, as well as managed the financial affairs of Ofer Development and Melisron together with Levi. Like Levi, Madar was also an authorized signatory for Ofer Investments, Ofer Development and Melisron, and he was present in Melisron’s Board of Directors’ meetings as part of his position as a financial manager for the Ofer Group. 

The Third Defendant, Eliyahu Haelyon (Hereinafter: “Haelyon”), was a financial consultant who traded in bonds and securities in the trading room of Poalim Sahar Ltd. at the relevant time period.

The Fourth Defendant – Appellant 1 in CrimA 1899/14 – Ofer Investments, is a private company in the fields of real estate, banking, hotels and others. In the relevant time period, Ofer Investments was positioned at the top of the Ofer Group pyramid, which included, among others, Ofer Industry Properties (Nazareth) Ltd., Ofer Properties and Shipping 1980 Ltd. and Ofer Development.

The Fifth Defendant – Appellant 2 in CrimA 1899/14 – Ofer Development, is a private holding company that, during the relevant time period, was entirely but indirectly owned by Ofer Investments: 81.9% of its shares were owned by Ofer Sahaf Ltd., which was fully owned by Ofer Investments. The rest of its shares were owned by Ofer Industry Properties Nazareth Ltd., which was also entirely owned by Ofer Investments.

The Sixth Defendant – The Respondent in CrimA 99/14 – Melisron, is a public company which in the relevant period operated commercial spaces and offices for rent. At the time, 71% of Melisron’s shares were owned by Ofer Investments.

It should be noted here, that at the end of the day, Levi and Melisron were acquitted from the offenses alleged in the indictment, whereas Madar, Haelyon, Ofer Investments and Ofer Development were convicted of all the offenses for which they were charged, as will be detailed below. It should be further noted that Levi and Haelyon are not parties to the appeals before us, and I will therefore elaborate about them only when it is necessary to address the disputes in the matter before us.

3. According to the indictment, in February 2008, Melisron issued bonds at a nominal value of approx. NIS 200 million in a private offering (hereinafter: “Series D Bonds”). Melisron raised approx NIS 200 million for these bonds. In May 2009, Melisron issued a shelf proposal in which the public was offered series D bonds as part of a series expansion. As a result, buy orders were received for bonds at a nominal value of NIS 140 million, in the total amount of NIS 145 million (hereinafter: “the First Expansion”). On November 4, 2009, at a board of directors’ meeting, Levi recommended to the board, on behalf of Melisron’s management, to raise funds by issuing additional bonds. At the end of the meeting, the board decided to issue additional bonds by way of issuing a new series or expanding an existing series.

4.Later in November 2009, Levi and Madar worked together to advance the issuance that was decided upon at the November 9 board meeting. For this purpose, the two selected Clal Finance Underwriting Ltd. as the arranger of the offering (hereinafter: “the Arranger”) and decided to further expand series D bonds. Together with the Arranger, Levi and Madar decided on the date for the issuing, the minimum price and the number of bonds to be issued. Afterwards, Levi and Madar coordinated the issuance with Ofer Group’s institutional investors and legal counsels, who drafted Melisron’s shelf  proposal.

5.On November 25, 2009 Melisron notified the public about the option of a second expansion of series D bonds in December 2009. This occurred through a uniform offering of a tender regarding the price of a unit, which generally takes place in two phases: in the first phase, a preliminary tender is held for confidential investors, as defined in regulation 1 of the Securities Regulations (Offer of Securities to the Public) - 2007 (hereinafter: “the institutional investors tender”.) In the second phase, the securities are offered to the public (hereinafter: “the public tender”). In this method, the price of the security that is set in the institutional investors tender is used as the minimum price in the public tender phase, and the final price is set in the public tender phase. The offers by the investors in the institutional investors tender are influenced by the price of the security in the stock market – the higher the price of the security in the market, the higher the price set by the institutional investors at the tender, and the more funds that can be raised for the company’s securities.

6.According to the indictment, Levi and Madar agreed amongst themselves to use Ofer Group accounts to purchase series D bonds in the period leading up to the institutional investors tender. This was designed to raise the price of series D bonds or to prevent its decline (hereinafter: “the Influence Plan”). As a result, the offers at the institutional investors tender, and in turn the minimum price of series D bonds in the public tender, were expected to be higher.

7.In order to execute the influence plan, Levi and Madar used Ofer Investment’s securities account in Poalim Sahar (hereinafter: “the securities account”). The securities account was managed by Levi and Madar, and they were the ones who gave the buy and sell orders.

8.On November 25, 2009, as part of the execution of the influence plan, Levi and Madar ordered the transfer of NIS 20 million from Ofer Investments’ account in HaPoalim Bank to the securities account. Afterwards, in the days prior to the institutional investors tender, and specifically between November 26, 2009 and December 1, 2009, Madar gave instructions to Haelyon, with Levi’s consent, to make trade transactions that would raise the price of series D bonds before the institutional investors tender or would prevent its decline, through purchases of the bonds. On the last day of trade, Madar even specified a target and asked Haelyon to bring series D bonds to a price of 117 Agorot each. This was, allegedly, with Levi’s knowledge and consent (who as mentioned above, was ultimately acquitted). Additionally, Madar set the time frame in which Haelyon was asked to make transactions in series D bonds, and limited this period to the days prior to the institutional investors tender. This too – as alleged – was with Levi’s knowledge and consent. Additionally, it was alleged, with Levi’s knowledge and consent, Madar made it clear to Haelyon that he was authorized to use the entire sum in the securities account – about NIS 20 million – and that should there be a need for an additional amount, Madar would provide it. Accordingly, in consultation with Haelyon, on December 1, 2009, and before the institutional investors tender, Madar and Levi transferred an additional sum of NIS 10 million into the securities account, and instructed Haelyon to also use that in order to raise series D bonds’ price or prevent its decline.

9.It was also alleged that following Levi and Madar’s instructions, Haelyon made transactions using Ofer Investments’ securities account in Poalim Sahar in order to raise the series D bonds’ price or prevent its decline. Allegedly, Levi, Madar and Haelyon all acted while exploiting the continuous trading, whereby every buy or sell order in the trade influences the fluctuations in the security’s price. As the issuance date approached, Levi and Madar increased the pressure on Haelyon so that their fraudulent activity in the series D bonds became, as alleged, more intense.

10.Among others, it was alleged that the following methods were employed:

Cancelling Layers: giving a sell order in a higher price than the highest sell order and for an amount greater than the overall amount offered at the three best layers of the sell orders. Such a buy order means a safe transaction where the three best sells are “cancelled” as to expose the highest sell prices. At times, the cancellation leaves a “trail” of buy orders at a high price that enters the first level of buy orders and raises it. Such a purchase signals to the stock market that there is a buyer who is willing to buy large amounts at high prices, and that the buyer does not “haggle” over the price.

The trail method: giving a buy order for an amount greater than the nominal value of NIS 1 (or a similar minimal amount) of the amount of the first sell order and for the price of the second level of the sell orders. This way, the price is set according to the second level – that of the higher price – though most of the transaction was made at the lower price. This raises the price to the price of the second level through a “cheaper” purchase, which is made mostly at the price of the first level.

11.As a result of the described activity, between November 26, 2009 and December 1, 2009 (hereinafter: “the Manipulation Period”), the price of series D bonds climbed from 115.72 Agorot on the first trade date, to a price of 116.9 Agorot on the fourth trade day. During this period, Ofer Development, funded by Ofer Investments, purchased series D bonds in a total amount of approx. NIS 23.9 million. Ofer Development constituted between 62-97% of the purchase volume of series D bonds during those four days of trading.

As will be clarified below, both in the District Court and in the appeal, there has been no real dispute between the parties as to use of the above methods and their outcomes. The dispute relates to the purpose that motivated these methods, and on this – further below.

12.On December 1, 2009 the institutional investors tender took place, and it closed at a price of 116 Agorot. Accordingly, the minimum price in the public tender was also 116 Agorot. The following day, Melisron published a shelf proposal, and on the next day, the results of the shelf proposal were published, and it was reported in the immediate report that buy orders for series D bonds were received at a nominal value of NIS 146 million for a total amount of NIS 170 million. Allegedly, Melisron hid the influence plan from the public, even though it constituted an event or matter that is outside of the regular course of business, and avoided publishing it within the shelf proposal or the immediate report published the day afterwards.

13.For the reasons mentioned above, it was alleged that Levi, Madar and Haelyon operated as joint perpetrators and fraudulently influenced the price of series D bonds, an offense under section 54(a)(2) of the Law (hereinafter: “the Manipulation Offense”). In addition, it was alleged that Levi and Madar acted together and induced or attempted to induce a person to buy or sell securities (an offense under section 54(a)(1) of the Law; hereinafter “the Inducement Offense”). Additionally, it was alleged that Levi and Madar caused Melisron’s immediate report to include misleading items designed to mislead a reasonable investor (failing to follow section 36 of the Law and an offense under section 54(a)(1) of the Law; hereinafter: “the First Reporting Offense”). By doing so, they caused the shelf proposal, which is equivalent to a prospectus, to include misleading items (failing to follow section 16(b) of the Law and an offense under section 53(a)(2) of the Law; hereinafter: “the Second Reporting Offense”).

In regard to the companies, it was alleged that Ofer Investments, Ofer Development and Melisron, through their representatives – Madar and Levi – fraudulently influenced the series D bonds’ prices, as well as induced or attempted to induce persons to buy or sell securities. Melisron was also accused of causing, through its representatives Madar and Levi, Melisron’s immediate report to include misleading items with the intent to mislead a reasonable investor, and thus caused the prospectus to include misleading items.

The Judgment Outline

14.The appeals before us challenge both the District Court’s verdict and its sentence. I will first detail the main points in the District Court’s verdict. Then, I will discuss Madar’s appeal of the verdict, after which I will elaborate on the sentence and the appeal challenging it. I will then discuss Ofer Investments and Ofer Development’s appeal against the conviction and the sentence, and finally the State’s appeal against Melisron’s acquittal. It is appropriate here to acknowledge with appreciation the quality of the arguments of the parties’ attorneys.

The District Court’s Verdict

15.In a detailed verdict, the District Court contemplated the various factual and legal issues that arise in our matter, and ultimately decided, as mentioned, to convict Madar, Haelyon, Ofer Investments and Ofer Development in all the charges against them, to acquit Levi due to reasonable doubt, and to acquit Melisron. Levi was acquitted because the State failed to prove, to the level of the burden required in criminal cases, that he participated in Madar’s sell orders to Haelyon, for which Madar was convicted (para. 317 of the verdict). We will address Melisron’s acquittal, which the State appeals, further below.

16.The court noted that most of the factual details of the affair – dates, bond prices, investment details, etc. – are not in dispute among the parties (para. 65 of the verdict), so that the gist of the dispute revolves around the legal meaning that should be given to the events detailed in the indictment. As noted, the State maintains that this is an influence plan with fraudulent characteristics, while the defendants see the very same activities as legitimate and acceptable actions in the stock market, which were conducted with no awareness and with no criminal intent. Concretely, the heart of the dispute is the interpretation of the manipulation offense set in section 54(a)(2) of the Law, which addresses influencing the prices by fraudulent means, and in our case – influencing buy acts of series D bonds by the Ofer Group prior to the institutional investors tender, in an attempt to influence the value of Melisron’s bonds.

17.Section 54 of the Securities Law, titled “Fraud in connection with Securities”, stipulates as follows:

(a) A person who [is convicted of doing] one of the following shall be punishable by imprisonment for a term of five years or to a fine in an amount five times the fine prescribed in section 61(a)(4) of the Penal Law, and if a corporation is so convicted – it will be subject to a fine which is twenty-five times the size of the said fine:

 

(1) Induced or attempted to induce a person to purchase or sell securities by way of a statement, promise or projection - written, oral or otherwise - which the person knew or ought to have known to be false or misleading, or by concealing material facts;

 

(2) Fraudulently influenced the fluctuation of the price of securities. For the purpose of this paragraph, it will be presumed that anyone acting in accordance with the provisions of section 56(a) regarding the stabilization of the price of securities has not engaged in an act of fraudulent influencing as stated above.

 

 The court considered the purpose of the section, and noted that its purpose is to protect the investing public from an artificial intervention in the capital market. It was noted that an efficient capital market is characterized by the fact that the price of securities is set according to the forces of supply and demand, and therefore any artificial intervention compromises its efficiency. The court distinguished the offense established by section 54(a)(1) – the inducement offense – and the offense established by section 54(a)(2) – the manipulation offense, which is the offense relevant for our purposes. The court found, after reviewing the existing case law, that the manipulation offense is a result offense. That is, in order to prove the elements of the offense, the prosecution must show that the defendant’s actions did indeed influence the price. However, as the court noted, a slight influence is sufficient (para. 97 of the verdict). The court additionally found that it is an offense with an intent element. That is, the prosecution must show that the defendant had the intent to change the price of the share. The court also noted, the action itself is often a legitimate action in the stock market, but it is the intent that makes it a criminal offense (para. 101 of the verdict). The court further held that in order for the elements of the offense to be fulfilled, it is not enough to couple the theoretical fraudulent intent to the seemingly legitimate action, but rather the State must point to “indications that have some behavioral basis” in practice in addition to the intent itself, because, of course, “one cannot be punished for what is in their heart” (para. 104 of the verdict). It was also noted that there is no need to point to the existence of a motive, though a motive can be used, where appropriate, as circumstantial evidence of intent.

18.The main issue the court considered, in terms of the manipulation offense, was the issue of mixed purposes – that is, whether one should be convicted of the offense when the prohibited fraudulent intent of influencing the price of the security was accompanied by an additional, legitimate, intent, which was based on a sincere desire to purchase securities. The court reviewed the existing case law and scholarship in the field and ultimately held:

“We must examine whether the influence on the price was a byproduct of the trading action alone, or whether the defendant acted in a manner that intended to influence the price. In other words, even where the defendant had a legitimate economic intent, if he acted (alongside or for this legitimate purpose) in order to influence the price – he should be convicted” (Para. 118 of the verdict) (Emphasis in original).

19.The court reviewed the relevant evidence and ultimately found that Madar and Haelyon should be convicted of manipulation, and that Levi should be acquitted of this offense. The court based its decision on the following evidence: recorded conversations between Madar and Haelyon between November 26, 2009 and December 1, 2009 (the day of the institutional investors tender), in which Madar explicitly instructed Haelyon to reach a price of 117; financial expert opinions submitted by the parties – Mr. Yossi Bahir on behalf of the State, Professor Avner Kalai on behalf of Madar and Professor Aharon Ofer on behalf of Haelyon; as well as the statements Madar, Haelyon and Levi gave to the police and their testimonies in court. We will return to these in more depth below.

20.Relying on the above, the court found that there is a reasonable doubt as to Levi’s involvement in the affair detailed in the indictment, and thus Levi was acquitted due to reasonable doubt (para. 317 of the verdict). As for Madar, it was held that while Levi was acquitted of the charges against him, it was impossible to convict Madar for the influence plan as is. In other words, it could not be said that it has been proven beyond a reasonable doubt that Madar intended to influence the price of the bonds “in the days, weeks or months” prior to the offering (para. 319 of the verdict), but only for several days. However, it was held, on the basis of the evidence, that Madar had dual intent from the beginning of the trade – to purchase bonds as a legitimate investment for Ofer, as well as to support the price in preparation for the offering. The court emphasized that it was not a secondary intent, but “two purposes living symbiotically side by side” (para. 320 of the verdict), and therefore convicted him of committing the offense (para. 324 of the verdict). As for Haelyon, it was held that though he was not equally culpable as Madar, it was proven beyond a reasonable doubt that he executed the instructions he received from Madar in a sophisticated manner and with “commitment to the task,” in order to support the securities price in preparation for the expansion of the series. Haelyon was therefore convicted of this offense (para. 327 of the verdict).

21.The court considered Madar’s argument that he consulted, along with Levi, with Melisron’s attorneys before expanding series D, which would demonstrate that he acted in good faith when making the purchases. In this regard, the court held that the consultation held with the attorneys in regard to the events described in the indictment was lacking and that material details were absent from it. It was also found that it is likely that had the lawyers known that the extent of the purchase was “unlimited” and that the order Haelyon received was to make the purchases only until the date of the offering, and especially had they known that the purchase was designed, among others, to increase or stabilize the price, the attorneys’ advice would have changed accordingly. It was therefore held that the consultation with the attorneys cannot be seen as indicative of Madar’s good faith and lack of intent to influence the price of the bonds (para. 307 of the verdict).

22.Regarding the inducement offense, it was held that the elements of the offense were met in Madar’s case, as his actions caused a material misrepresentation amounting to fraudulent motivation. This is because shortly before the expansion of the series Madar purchased bonds at a scope of 60-97% of the trade, in a manipulative way, and thus could have influenced the investing public’s decision whether to purchase Melisron’s securities (we will not address the question of overlap between the inducement and manipulation offenses, as it is not part of the appeal). As for the first reporting offense, the court found that Madar caused the report published by Melisron on November 24, 2009 to exclude a material detail as to the influence plan, while Madar was also the one who approved the draft to Melisron’s attorneys, and thus the court convicted him of this offense. As for the second reporting offense, the court found that in Melisron’s shelf proposal report dated December 2, 2009, Madar again failed to report the influence plan, and he therefore was convicted of this offense as well.

23.As for the criminal liability of the companies for the offenses, it was held, as mentioned, that Melisron should be acquitted of the charges against it. This was because the activity for which Madar was convicted was not carried out in the course of his duties in Melisron but in the course of his duties in Ofer Group’s private companies. Therefore, on the basis of organ theory, it could not be found that Melisron – and Madar as an organ of Melisron, as argued  – played a part in committing this offense (para. 335 of the verdict). However, the court found that Ofer Investments and Ofer Development should be convicted of the offenses of manipulation and inducement. In this matter, it was found that the companies could not be separated with regard to the commission of the offense because “under the unique circumstances of this case, the conduct of both companies was one and the same.” Therefore, the actions taken by Madar as an organ of both companies – “Number 2 in the organization” as Levi called him (record of hearing dated December 27, 2012, p. 641, l. 31) – form the criminal liability of the two companies, even though the investment was formally made by Ofer Development only (para. 341 of the verdict).

24.Now that we have presented an overview of the main points in the verdict, we can address the appeals before us. At this stage I will only discuss the arguments challenging the verdict, and further below – following the discussion of the verdict – I will address the arguments challenging the sentences imposed on Madar, Ofer Development and Ofer Investments.

CrimA 1829/14 – Madar’s Appeal – the Verdict

The Appellant’s Arguments – Madar’s Verdict

25.At the center of Madar’s appeal against his conviction stands mainly the legal questions of mixed purposes, as discussed above – should a person be convicted of the offense of manipulation when the legitimate intent he had in purchasing securities was coupled with an additional, fraudulent, goal in the form of a desire to influence the price of the security. It was argued that this is the first and only case where a person has been convicted of manipulation in such a case of mixed purposes, and Madar maintains that the interpretation the lower court gave to the manipulation offense is inconsistent with the legislative intent and the case law on similar matters. In his arguments, Madar also presented American law, which supports, it was claimed, his argument that the interpretation given to the manipulation offense in our matter was wrong.

26.In addition, both written and oral arguments emphasized that the appropriate test in the context of mixed motivations is the “fundamental goal test” or the “but for test” – if, but for the legitimate goal, the defendant would not have made the investment, the defendant should be acquitted. Therefore, when the court found that both goals – the legitimate and the fraudulent – “lived side by side in symbiosis” (para. 320 of the verdict), meaning that the fraudulent goal was not fundamental, it should not have convicted Madar. It was also argued that the verdict reveals that the fraudulent goal was “secondary, if not incidental,” which should, of course, also lead to an acquittal (para. 26 of the notice of appeal).

27.It was also argued that the court erred by not considering Madar’s consultation with Melisron’s attorneys as indicative of his good faith and lack of intent to influence the securities. In this context, it was argued that the court’s finding contradicts a different finding - as the court held that during the consultation with the lawyers on November 25, 2009 Madar should have disclosed his intentions to “support” the price, but it also held that Madar’s intention to support the price only materialized on November 26, 2009. It was additionally maintained that Madar and Levi presented to the attorneys the information they had as to the purchase possibility, and that the attorneys were expected to present the legal aspects and potential problems of purchasing bonds, because Madar and Levi are not lawyers and they could not have known that this activity could be problematic. Thus, the court erred by not seeing Madar’s reaching out to the lawyers as an indication of good faith. Madar also emphasized that reliance on a lawyer’s advice would provide sufficient defense in criminal proceedings but was never argued, and thus, there was no reason to examine such claim by the court using the case law’s guidance on a reliance argument.

28.As for the financial expert opinions, Madar argued that the District Court erred in not attributing the appropriate weight to the fact that both Bahir and Professor Kalai’s opinions suggest that the trade activity itself does not reveal a fraudulent intent, but rather that such an intent can allegedly be inferred from the recorded conversations, which are insufficient because they are “intentions of the heart” for which one cannot be convicted in criminal proceedings. It was noted that this is also inconsistent with the court’s own finding that even if there was an intent to influence the security in the defendant’s heart, but in reality he acted as if he would have acted had he not had that intent, he should not be convicted of manipulation (para 104 of the verdict). As for the recorded conversations, it was argued that they reveal that Madar saw the purchase of Melisron bonds as a good investment that fitted the needs of Ofer Development, regardless of the series D expansion. The timing of the purchase was set for four days before the beginning of the trade, because – as was argued –a good opportunity for a significant purchase was created at that time, and not in order to influence the price.

29.At the end of his appeal, Madar also challenges his conviction of the offenses of inducement and causing a misleading item in a report. I will expand on his arguments on this further below. As mentioned, the issue of the sentence will be discussed separately.

The Respondent’s Response – Madar’s Verdict

30.It was argued that although Madar presented his appeal primarily as legal, the notice of appeal weaves in factual assumptions that contradict the District Court’s various findings. First and foremost, Madar’s argument that the primary purpose at the base of the series D bonds’ purchase was a legitimate financial investment is inconsistent – as said – with the District Court’s finding that the legitimate purpose stood alongside the fraudulent purpose, without determining a greater relative weight to one over the other, and while emphasizing that the fraudulent intent was neither secondary nor incidental (para. 3 of the main arguments).

31.As for the legal aspect, it was held that the District Court’s interpretation of the manipulation offense is consistent with the legislative objective and the Supreme Court’s case law on the issue, and as it was proven that Madar acted with a prohibited purpose to influence the price, it is immaterial that this goal was accompanied by a legitimate financial goal. This is because the legitimate goal cannot mitigate the adverse influence his activity had on the stock market’s proper trade. Additionally, the Respondent maintains that Madar’s failure to disclose the activities detailed in the indictment to the public in the prospectus or in the report is sufficient to unequivocally meet the “fraudulent means” element of the manipulation offense. Regarding the case law Madar presented from American law, it was argued that it did not provide a comprehensive picture of the applicable law there, and thus the conclusion Madar seeks to reach on its basis is incorrect.

32.The Respondent claims that the numerous conversations between Madar and Haelyon during the four days of trade clearly point to Madar’s intention to influence the price of the bonds, and that this is detailed in the District Court’s verdict. This is coupled with Madar’s notices to the Israel Securities Authority dated April 27, 2010 and April 28, 2010, in which he admitted that his actions was designed to influence the outcome of the series D bonds offering.

33.With regard to the financial expert opinions it was argued that at this point there is no dispute that Madar’s actions did indeed influence the price, and thus the opinions are used primarily as evidence to prove Madar’s intention to influence the price. It was argued in this context that Mr. Bahir’s opinion is the only one that includes a discussion of the financial aspects, in addition to the recorded conversations, whereas in his opinion, Professor Kalai intentionally avoided discussing these conversations. Therefore, the District Court rightly preferred Bahir’s opinion, as it provides a broader picture of the events, and it reveals that Madar acted with intent to influence the price.

34.As for Mardar’s appeal as to the inducement and reporting offense, it was argued that his claim that he should not be convicted because he was not an officer of Melisron and was not responsible for its reports should be rejected. This is because in order to meet the elements of the offense it is sufficient that the offender caused the misleading reporting in his actions, as Madar indeed did, and whether he was an officer or was responsible for the reports is irrelevant (even if the Respondent disputes the claim that Madar was not an officer in Melisron at the relevant time, and on this in Melisron’s appeal, below).

CrimA 1899/14 – Ofer Investments and Ofer Development Appeal – The Verdict

The Appellants’ Arguments – Ofer Investments and Ofer Development – The Verdict

35.This appeal was filed by Ofer Investments and Ofer Development against their conviction by the District Court for the charges detailed in the indictment. It was claimed that the District Court erred by viewing the two companies as one and convicting both of the charges in the indictment, while, at most, there was room to only convict Ofer Development, which in reality made the purchase of the series D bonds. In this context, it was argued that the fact that Ofer Development made the purchase, and not Ofer Investments, was based on Ofer Development’s legitimate tax considerations, rather than an artificial transaction in a manner that warrants “joining” the two companies for the purpose of a conviction. In effect, the court performed a sort of “lifting of the veil” between the two companies where there was no need to do so. It was also maintained that insufficient weight was given to the fact that Levi, CEO of Ofer Investments, was acquitted from the charges, which, too, should support Ofer Investments’ acquittal.

36.It was also argued that even had the decision to invest in Melisron – a decision which is not disputed to have had legitimate financial purposes – had been made by Ofer Investments, then in the four relevant trade days, in which Madar decided – according to the District Court’s finding – to influence the price with prohibited intentions, the trade took place with Ofer Development rather than Ofer Investments. At this point, Ofer Investments no longer served as a relevant party to the decision to invest in Melisron. It was also argued in this context that policy considerations lead to a conclusion that Ofer Investments should not be convicted for the offenses committed, at most, by Ofer Development because this would constitute a conviction of a company because a “finance officer in a grandchild company got spontaneously carried away” (para 58 of the appeal).

37.As for the conviction of Ofer Development, it was argued that Madar’s investment in Melisron only caused Ofer Development damages, which result from purchasing bonds of large amounts and high price, when in contrast to the District Court’s finding, Ofer Development did not even enjoy Melisorn’s success as it is no more than a sister company to Ofer Development. Hence, the court should have applied the exception to the organ theory that when the organ acted against the best interest of the company, the company should not be found criminally liable for the organ’s actions. It was also argued that Ofer Development did not significantly profit from Madar’s investment and should be acquitted for this reason as well. Finally, it was claimed that there was no place for the lower court’s finding that Ofer Investments and Ofer Development were in a position to supervise Madar’s activity and prevent what had transpired, because this is a single failing that was hard to detect and was centered in the telephone conversations between Madar and Haelyon, and it could not be expected of other officers in the corporation to have to participate in such conversations and prevent what happened.

38.In the hearing before us, Ofer’s attorney also challenged Madar’s conviction and the District Court’s holding that the two purposes at the basis of the manipulation offense were of equal status. In this context, it was argued that as it is impossible to find that the fraudulent goal was the dominant of the two, the situation of a “tie” between the purposes does not allow for Madar’s criminal conviction, and thus neither does it allow for the companies’ convictions.

The Respondents’ Arguments – Ofer Investments and Ofer Development – The Verdict

39.The State argued that there is no basis for the appellants’ argument that the District Court “lifted the veil” between Ofer Investments and Ofer Development and relied on this to convict Ofer Investments. It is obvious from the verdict that the court examined the direct responsibility of each of the companies and convicted them on that basis. It was argued in this regard, that in contrast to the appellant’s argument, the activity described in the indictment was carried out by Madar in the course of his duties as an organ of the two companies, and not only of Ofer Development. Therefore, the District Court’s finding that the appellants operated as one was required in order to show that Madar acted as an organ of both companies when committing the offenses and not for “lifting of the veil,” as was argued. This finding by the District Court was built – so it was argued – upon solid foundations: Levi’s testimony that from an organizational perspective, the management of the Ofer Group views the group as a whole “as if there are no companies” (record of hearing dated December 27, 2012, p. 589, l. 13-22); the testimony of Ms. Yochi Yaakovi, Ofer Group’s treasurer, that Ofer Development had no independent investment policy, but that it relied on the group’s policy (record of hearing dated September 11, 2012, p. 121, l. 23-33), and more.

40.As for the argument regarding the exception for an activity that harms the company, it was argued that it must be rejected. At the basis of the offense of manipulation is a short term loss, which the manipulator is willing to absorb for future gains. As mentioned, this happened in our case as well. This occured when Ofer Development and Ofer Investments – which, according to the State and the findings of the District Court, should not be separated in this context – absorbed the short term loss caused to them by the purchase of the bonds at a high price, in order to produce profits for the Ofer Group in the long term when the value of Melisron’s bonds would rise, as eventually did in fact happen.

CrimA 99/14 – The State’s Appeal against Melisron’s Acquittal

The Appellant’s Claims – The Appeal against Melisron’s Acquittal

41.This appeal was filed by the State against Melisron’s acquittal of the charges against it. The State claimed that Madar was an organ of Melisron. It seems this is also reflected in the District Court’s sentence regarding Madar, where it was found that the latter ran Melisron’s financial matters and was an authorized signatory of it. As for the manipulation offense, it was argued that the District Court erred in finding that Madar did not commit the offense attributed to him within the course of this duties as an organ of Melisron, but in the course of his duties with Ofer Development and Ofer Investments only. This is from both an objective and a subjective examination of the circumstances. From the objective perspective, raising the value of the bonds by Madar served primarily Melisorn’s interests as it raised its financial worth. From the subjective perspective, Madar said in his statements and testimony that he acted to benefit Melisron, and he therefore committed the offenses within the course of his duty (record of hearing dated January 16, 2013, p. 732, where it was said: “I also had the goals of Melisron in mind”).

42.As for the reporting offense, it was argued that the Court erred in acquitting Melisron of these offenses. The court noted, as mentioned, that it was acquitting Melisron because Madar did not have powers that merit attributing his intent to Melisron, and because the appellant did not prove that any of Melisron’s employees knew of his intent. It was argued in this regard that Madar held a senior position in Melisron, and was even considered to be Levi’s – the CEO – right hand, and that additionally, he played an active role in issuing the bonds. Therefore, he must be seen as an organ for the purposes of the reporting offense. It was also noted that Mader indeed took an active part in Melisron’s reports and particularly those concerning the purchase activity at the heart of the indictment, which also supports his consideration as an organ in this respect. This is true also for the offense of including a misleading item in a prospectus – even according to the findings of the District Court, Madar knew that the shelf proposal report was incomplete, as it did not include the manipulation that he himself executed, and thus the court convicted him for this offense. Yet, as argued, for these very reasons Melisron should also be convicted, and the court’s finding that these offenses were not committed in the course of Madar’s duties as organ in the company is incorrect. It was also maintained that the fact that none of Melisorn’s employees knew of Madar’s activities is immaterial here because this is not a relevant requirement for a conviction under the organ theory. The District Court itself noted this when finding that Ofer Development and Ofer Investments should be convicted of the offenses for which they were indicted, even if it has not been proven that any of their employees were aware of Madar’s activities (para. 342 of the verdict).

The Respondent’s Arguments – Appeal against Melisron’s Acquittal

43.It was argued that Madar’s actions should not be viewed as actions taken as an organ of Melisron’s, but instead as actions taken in the course of his duties in Ofer Development and Ofer Investments. Thus, the District Court was correct in acquitting the Respondent. It was also argued that Madar was merely an external services provider, as part of this position at Ofer Investments, rather than an organ of Melisron, and that he was not named as a high officer in the prospectus at the relevant time (para. 13 of the main arguments). Additionally, even though the District Court found Madar was an authorized signatory, the Respondent emphasizes that he was an authorized signatory in Melisron’s accounts, but he never signed its financial reports, prospectuses or the shelf proposal report nor the immediate report mentioned in the indictment. Therefore, Madar should not have been viewed by the court as an organ of Melisron.

44.Alternatively, it was argued that even if Madar could have been seen as an organ of Melisron, in effect, the specific actions for which he was convicted were not executed in the course of his duties as an organ of Melisron, but – as the District Court noted – as an organ of Ofer Investments and Ofer Development. Thus, Melisron’s conviction will contradict the legal rationale at the basis of convictions under the organ theory – a conviction where the corporation could have supervised in advance and could have prevented the offense committed by the organ, yet, in this case, Melisron had no possibility of doing so.

Judgment: The Statutory Framework

The Manipulation Offense

45.The main issue at the core of the appeals is Madar’s conviction (and in turn Ofer Development and Ofer Investments’ convictions, but Meliseron’s acquittal) for the manipulation offense found in section 54(a)(2) of the Securities Law, which establishes as follows:

 

“(a) A person who [is convicted of doing] one of the following shall be punishable by imprisonment for a term of five years or to a fine in an amount five times the fine prescribed in section 61(a)(4) of the Penal Law… (2) Fraudulently influenced the fluctuation of the price of securities ….”.

 

The Legislature therefore found it appropriate to prohibit, in the form of a non exhaustive list, with a broad definition, artificial intervention in the stock market that has the potential to influence the price of the security. Professor Goshen discussed the rationale behind this criminal prohibition:

“Manipulation that takes place through prohibited intervention in the stock market’s pricing mechanism causes a distortion of the information produced in the trade itself (trade cycles, price fluctuations, etc.)… The sophisticated investor is particularly vulnerable to fraud and manipulation due to his reliance on information in making investment decisions… However, in effect, protecting the sophisticated investors, who ensure the efficiency of the stock market, indirectly protects unsophisticated investors as well. In an efficient market, each security is traded at its correct value, which allows the unsophisticated investor to trade in securities without fear as to whether their price is distorted.” (Zohar Goshen, Fraud and Manipulation in Securities: Non Identical Twins, Mishapatim 30, 591, 599-600 (2000) (hereinafter: Goshen).

To this we can add a moral tone, beyond the efficacy component – the voice of decency that should be expected to exist, not just in terms of “person to person – a person” (as coined by President Barak in LAC 6339/97, Rocker v. Salomon, IsrSC 55(1) 199, 279 (1999)), but also in light of the inherent sophistication involved with securities and working with them.

The Offense of Manipulation – The Result Element

46.The elements of the offense, as mentioned, are that the person committing it (1) influenced the fluctuation of the price, and (2) did so fraudulently. The question is whether this is a result based offense, meaning that in order to convict the defendant for having committed the offense, it is necessary to show that the security’s price was actually changed, or whether this is only a conduct based offense. Although the issue does not have to be determined here, because as noted above, the District Court found that the security was indeed influenced as a result of Madar’s actions and this point is no longer in dispute between the parties, I find it fitting to briefly address this issue. The first precedent in this regard, as set by this Court in CrimA 8573/96, Mercado v. The State of Israel, IsrSC 51(5) 481, 517 (1999) (hereinafter: “the Mercado Case”), is that the offense is a result offense. This, primarily on the basis of the language of section 54(a)(2), which requires, as one of the elements of the offense – “influenced.” That is, an actual influence on the price is required and a mere attempt is insufficient (p. 517 of the opinion). In CrimA 1027/94, Zilberman v. The State of Israel, IsrSC 53(4) 502 (1999) (hereinafter: “the Zilberman Case”), President Barak left this issue for future consideration, yet still noted that in order to prove the result element, to the extent it is necessary, “the existence of influence is sufficient, even if it is not extreme but as long as it is not negligible.”

47.Various positions can be found in the professional literature. For example, Professor Z. Goshen believes that “searching for actual influence of the price’s fluctuation is pointless” because even if actual influence has not been proven, the mere attempt to influence the price still causes the harm which is reflected in the investors’ need to guard themselves against manipulative trade orders. This self protection itself carries costs – costs that may harm, in and of themselves, the stock market’s efficiency, and therefore an awareness requirement should suffice for a conviction of this offense (Goshen, p. 634.) Scholar Assaf Ekstein expresses a similar position (Assaf Ekstein, Mixed Goals in the Offense of Securities Manipulation, 16 277, 292 (2004) (hereinafter “Ekstein”)). Ekstein also refers to the Yadin Commission and the Gabai Commission, which were formed in order to examine different issues in the Israeli stock market and respectively found, in terms of the manipulation offense, that “it is immaterial whether the action caused damage or not” and that “it is immaterial whether the outcome that the person conducting the transaction intended to achieve was reached or was not reached.” (Report of The Commission for Issuing and Trading Securities, para. 208 (1963) (the Yadin Commission); Report of The Commission for Proposal of Legislation in the Field of the Stock Market, para. 52 (1985) (the Gabai Commission); Ekstein, p. 292).

48.Professor O. Yadlin holds a different position. In his opinion, section 54(a)(2) of the Law requires actual influence on the price of the security, because in the absence of influence, no damage was caused – neither to the market as a whole nor to those trading in it. This is contrary to section 54(a)(1), which, as mentioned, establishes the inducement offense and does not require existence of actual influence, because even in its absence damage might still be caused to a concrete trader who purchased a security based on misleading information and thereby entered into a transaction at a loss (O. Yadlin, Fraud in the Market – The Limits of Professional Responsibility for Misrepresentations in the Secondary Market, , 249, 270 (1997) (hereinafter: “Yadlin”). Judge (now Deputy President) Dr. O. Mudrik holds a similar position (O. Mudrik “‘Ramping’ Securities as an Offense – “Shall I Win… and in the Pocket the Rocks of Deceit”” 509, 536-539 (2001, Eli Lederman ed.) (hereinafter: “Mudrik”). It should be noted that Dr. Mudrik believes that the mens rea element of the offense, which we will get to below, is not of intent but merely of awareness. This may influence, it seems, his desire to restrict the scope of the offense through raising a stricter actus reus requirement, as well as a requirement for actual influence rather than conduct alone (Mudrik 540-45).

49.As for me, I believe, and noted, that this need not be decided now, and even had the requirement for an outcome been significantly diminished in the Zilberman case, it is highly doubtful whether it is appropriate from a policy perspective. The purpose of the Securities Law, from its inception, is to provide protection to investors – whether they are sophisticated investors who invest out of knowledge or unsophisticated investors who do not utilize external information (Goshen, 594). Both need to know that when they come to invest, the price of the security reflects, to the greatest extent possible, its value, and that artificial efforts to change it have not been made. When this certainty does not exist, serious investors must invest time and money to acquire relevant information to ensure that the estimate of the security is “clean”, as much as possible, of any considerations that are external to the market. The words of President Barak in CrimA 5052/95, Vaknin v. The State of Israel, IsrSC 50(2) 642, 655 (hereinafter: “the Vaknin Case”) are fitting here as well:

“The price of a security reflects a balance between the actual supply and the actual demand, which stems from the investor’s forecast regarding the future profit from that investment. This ensures the public’s trust in the stock market and the economic information it represents. To be sure, there is no guarantee of success. These forecasts may fail. But a market mechanism, based on economic estimations, was established in order to determine the price of the security. Against this utilitarian approach we must examine the different situations which, arguably, constitute fraudulent influence on fluctuations of the securities’ price.”

See also the Mercado case, p. 519; Zilberman, 515; LCrimA 2184/96, Haruvi v. The State of Israel, IsrSC 54(2) 114, 121-122 (1998) (hereinafter: “the Haruvi Case”); Gurary v. Winehouse, 190 F.3d 37, 45 (2d Cir. 1999).

50.Therefore, even in the absence of direct influence on the fluctuations of the securities’ price, it is impossible, in my view, to say that no harm was caused to the stock market and to the investing public, by the very fraudulent activity designed to influence the price of the security, in a manner that does not justify a conviction for the offense. Indeed, even Professor Yadlin himself, who, as mentioned, believes that the offense should be regarded as requiring actual influence, noted that the “mere potential of the existence of misleading information causes investors to waste resources on verifying the information” (Yadlin, p. 269, emphasis added). As for the concern brought up by Dr. Mudrik regarding the overreach of the offense over seemingly legitimate activity, I believe that this concern must be relieved within the mens rea element rather than the actus reus element, and I will discuss this further below. I will once more add the moral component and decency, which in my eyes are a necessary foundation of the stock market that the investor can put trust and faith in. This factor, in my humble opinion, cannot be overstated.

51.Nonetheless, I am afraid that the language of section 54(a)(2) of the Law does not permit leaving out the result element completely. As noted in the Mercado case, the use of the verb “influenced” requires the existence of influence, and this is evident particularly when comparing the language of this section to section 54(a)(1) which uses the term “induced or attempted to induce” (emphasis added.). This demonstrates that the Legislature was aware, with regard to the fraud offense (including inducement and manipulation,), of the possibility to include attempt in the elements of the offense. As for the inducement offense the Legislature elected to include the attempt as an element of the offense as well, whereas in the offense of manipulation – it opted not to do so. Therefore, without the proper legislative amendment, I believe that section 54(a)(2) encompasses a requirement for actual influence, despite the fact that in the Zilberman case, as discussed, “the existence of influence is sufficient, even if it is not extreme, as long as it is not negligible.” I believe influence must be interpreted broadly, to include indirect influence, which could fall under the definition of “pulling strings.”

52.Recall that today, after the enactment of section 34D of the Penal Law, 5737 - 1977 (hereinafter: the Penal Law), which mandates that “any statue enactment that applies to the primary commission of a completed offense also applies to an attempt”. The significance of the result element of this offense is not as great as it once was (even if this may have some implication, for example, for the difference in social stigma on those convicted of an attempt to commit an offense and those convicted of committing the complete offense, see Mudrik, p. 539-40). Therefore, should one be convicted, under the current version of the Law, of attempting to commit a manipulation, the court may consider, in the sentencing phase, the importance of guarding the value protected by this offense, whether it was an attempt to influence or actual influence, and then decide on the sentence accordingly.

The Manipulation Offense – The Intent Element

53.Another question is what is the required mens rea for the manipulation offense. As opposed to the result element, which is explicitly included in the Law, section 54(a)(2) does not explicitly state the mens rea required. This is different from section 54(a)(1) which explicitly establishes a mens rea of negligence (“knew or should have known”). In the Vaknin case, President Barak held that “in order to convict the defendant, the court must find that the defendant committed the offense ‘with the intention to achieve price fluctuation.’ The intent is the thing indicating whether the defendant’s action was done in ‘fraudulent ways’, as the language of the section states, or whether it was merely a legitimate activity with real economic meaning” (Id., p. 656; emphasis added). Later, in the Mercado case, Justice Goldberg expanded on this matter and mentioned that because section 54(a)(2) is silent on the issue, a criminal mindset of recklessness is seemingly sufficient. However, as for the offense of manipulation by means of participation in trade, as in our case, Justice Goldberg noted, “the intent to artificially influence the price is the thing that constitutes the offense. In such cases, the intent creates the distinction between permitted activity and prohibited activity” (Mercado, 524-25).

54.Accordingly, it seems that the approach that the manipulation offense requires a mens rea of intent to achieve fluctuations in the price has since settled in the case law of different levels of the courts. See for example Haruvi case, p. 123-124; CrimC (Mag. Tel Aviv) 7019/00, The State of Israel v. Mualem, para. 99, 102 (2002); CrimC (Mag. Tel Aviv) 4131/05 The State of Israel v. Opmath Investments, para. 24 (April 15, 2008) and the appeal on the matter: CrimA (Dist. Tel Aviv) 70384/08 The State of Israel v. Opmath Investments, para. 24 (November 23, 2009); CrimC (Mag. Tel Aviv) 2617/04, The State of Israel v. Greenfield, under the heading “The Second Charge”, para. A (February 25, 2008) (hereinafter: “Greenfield – Mag. Case”) and the appeal in that same matter: CrimA (Dist. Tel Aviv) 70226/08, The State of Israel v. Greenfield, para. 44 (December 21, 2008) (hereinafter: “Greenfield – Dist. Case”).

55.It seems that even the scholarship is almost unanimous in its position that the mens rea required for the manipulation offense is a mens rea of intent, both in terms of interpreting the current law and in terms of the desirable legal policy. Thus, for instance, Goshen notes that “manipulation, in contrast (to the inducement offense – Rubinstein,) is based entirely on the mens rea of the trader – the intent to commit fraud. On the factual level alone, the trader’s conduct is identical to any other legitimate commercial activity” (Goshen, 602). Professor Yadlin voices a similar opinion (Omri Yadlin, Prohibited Manipulation – What Is It?, li Lederman, ed.), as well as the scholars Fischel and Ross:

“[T]here is no objective definition of manipulation. The only definition that makes any sense is subjective – it focuses entirely on the intent of the trader. Manipulative trades could be defined as profitable trades made with ‘bad’ intent…” (Daniel R. Fischel & David J. Ross, “Should the Law Prohibit ‘Manipulation’ in Financial Markets?” 105 Harv. L. Rev. 503, 510 (1991) (Emphasis added – Rubinstein).

Even Mudrik, who believes that the existing Law requires only a criminal mindset, noted that his conclusion causes “‘discomfort’ due to the attribution of criminal responsibility to those who influence the security’s price with ‘real activity’, without having ‘intent’ regarding this outcome” (Mudrik, p. 545).

56.Reviewing American law leads to a generally similar conclusion. Section 10(b) of the Securities Exchange Act of 1934 authorizes the United States Securities and Exchange Commission (The US SEC) to set regulations as to the use of financial tools that may cause manipulation, deception, or contrivance in securities. Accordingly, the Commission drafted Rule 10b-5 (17 CFR 240.10b-5) entitled “Employment of Manipulations and Deceptive Devices”, which reads as follows:

“It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,

(a)To employ any device, scheme, or artifice to defraud,

(b)To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or

(c)To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with the purchase or sale of any security” (17 CFR 240.10b-5).

In the matter of Ernst & Ernst v. Hochfeder, 42 U.S. 185 (1976) the United States Supreme Court held that the very use of the term “manipulation” reflects the existence of an intent requirement:

“Use of the word ‘manipulation’ is especially significant. It is and was virtually a term of art when used in connection with securities markets. It connotes intentional or willful conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities” (Id., p. 199).

In addition, in the matter of Santa Fe Indus. v. Green, 430 U.S. 462 (1977), the United States Supreme Court reiterated this rule and held that:

“The term [manipulation – Rubinstein] refers generally [494] to practices, such as sales, matched orders, or rigged prices, that are intended to mislead investors by artificially affecting market activity” (Id., p. 476.).

See also: Maxwell k. Multer “Open-Market Manipulation under SEC Rule 10b-5 and its Analogous: Inappropriate Distinctions, Judicial Disagreement and Case Student: Ferc’s Anti-Manipulation Rule” Securities Regulation Law Journal, 97, 97-98 (2011).

And indeed, it is clear to all that the term “manipulation” is generally, and certainly in the financial and government world, a negative term (in the world of medicine and natural sciences there may be an act of manipulation where the purpose is beneficial, but of course that is not what we are discussing). Influence by fraudulent means is a negative act of course; see the distinction between manipulation as “treating something with one’s hands” and that which means “using fraud or contrivance to achieve some advantage” (Even Shushan Dictionary for the 2000’s) (2007), under the entry “Manipulation”).

57.It seems that there is unanimity in the case law and scholarship regarding the requirement for intent in the manipulation offense. In effect, intent is inherent to the element “by fraudulent means” of section 54(a)(2), and in the words of Justice Goldberg: “The intent to artificially influence the price is what constitutes the offense” (Mercado, 523-24. Emphasis added). As discussed, it is possible that one’s investment influences the price, but this would be a side effect of a legitimate economic activity, and without that person intending to do so. In such a case, though one’s activity influenced the price, it is doubtful whether an injury warranting protection was caused to the stock market or the investing public, and so such a case does not fall under the offense of manipulation. However, when one’s activity was based on a fraudulent intent, and the activity did in fact influence the price, an actual harm has been caused to the market, and that harm is what the Law was designed to prevent. Indeed, this must be an actual intent, and the intent cannot be simply inferred from one’s awareness to do the act. In other words, the expectation doctrine cannot be applied to the offense of manipulation. We learn this, in my view, from the very import of the intent among the elements of the offense, because, as discussed below, but for the intent, it is highly doubtful whether any activity could be found to have been done “by fraudulent means” as the provision requires. I will simply add: there is no fraud without intent. Whoever presents something to another without any intent to harm, but in the regular course of business and in good faith, will not be trapped in the net of this offense.

58.In this spirit, as a rule, the existence of an intent to commit a particular act also indicates an additional, abstract, harm to the protected value at the basis of the offense, which, in the long term, could also erode the status of that value (see Yitzhak Kogler, 294-95 (1997)). It seems that these things are especially true with regard to the manipulation offense – when one acts in order to influence the price. Then, aside from the actual harm caused as a result of the influence to the price of the specific security, there is conceptual harm caused to the value at the basis of the manipulation offense, that is, protecting the stock market as a whole and ensuring that the prices of securities reflect, as much as possible, their true economic worth. As I explain below, in my opinion, these things apply even when the fraudulent intent does not stand alone.

59.As for the existence of a motive – as the District Court noted, in order to convict the defendant for the offense of manipulation it is not necessary to show that the defendant had a motive to commit the offense, but insofar as such a motive existed, it is possible that the motive would serve as circumstantial evidence in proving the offense, with emphasis on the intent element (Greenfield – Dist. Case, para. 46; see also Bryant v. Avado Brands Inc. 187 F.3d 1271, 1286 (1999); Carley Capital Group v. Deloitte & Touche, 27 F. Supp.2d 1324, 1339 (1998)).

60.We learn from the above, on the one hand, about the importance of the intent requirement to meet the elements of the offense and, on the other hand, about the importance of a conviction for manipulation in those cases where there was indeed intent. Still, a separate question is whether, for the purposes of a conviction of manipulation, the prosecution must prove that the defendant’s entire intent was to influence the price, or whether the mere existence of the fraudulent intent is sufficient, even if it was coupled with a sincere intent to make a legitimate financial investment. On this in the next part.

The Manipulation Offense – Mixed Purposes

61.We discussed the importance of the intent requirement to the offense of manipulation. There can be no dispute then that when “the appellants’ entire intent was to cause the increase in the stock’s price” (Haruvi case, President Barak, para. 7. Emphasis added); or when “their entire intent was but to fraudulently cause the price to increase” (Vaknin case, President Barak, p. 646. Emphasis added); or when our case falls within “the deliberate intervention in the trade of the stock, whose entire purpose is to influence the price” (CrimA 5383/97, Tempo Beer Industries Inc. v. The State of Israel, IsrSC 54(1) 557, 569, President Barak (2000) (hereinafter: “the Tempo Case”) Emphasis added); and in other words – when the defendant’s entire intent in the manipulation was to influence the fluctuations of securities’ prices by fraudulent means, then the intent requirement has clearly been met.

Yet what is the law when we are concerned with mixed intents or mixed purposes – that is, when the defendant’s fraudulent purpose, to influence the price by fraudulent means, was coupled with the sincere intent of a legitimate financial investment. First, is it at all possible to convict such a defendant of the manipulation offense where mixed purposes motivated his actions? And if the answer for this is in the affirmative, we must ask – what is the necessary proportion required between the defendant’s different intents in order to convict him of the offense? In other words, is any fraudulent intent that is added to the legitimate financial intent sufficient, or is it necessary to show that it is a primary or fundamental intent, and the stronger the evidence is, that but for the legitimate purpose the defendant would not have committed the offense, then the defendant must be acquitted?

62.This is what the District Court held in this case regarding this issue (para. 118):

“I believe that in the instance of a ‘true transaction’ (an action that is seemingly permitted but the purpose behind that action makes it prohibited), in order to achieve the purpose underlying the prohibition in section 54(a)(2) of the Securities Law, we must examine whether the influence on the price was merely a byproduct of the trade activity, or whether the defendant acted in a manner intended to influence the price. In other words, even if the defendant had a legitimate financial purpose, as long as he acted (in addition or for the proposes of this legitimate purpose) in order to influence the price – he should be convicted” (Emphasis in the original – Rubinstein).

As I will show below, my position is as that of the lower court, and even more strongly so. To me, the existence of the intent to influence the price is, on the criminal level, the dominant factor in the decision.

63.Indeed, it seems that this issue of mixed purposes has yet to warrant this Court’s attention. At the very least, not explicitly. Madar argues that this Court’s various decisions on the issue of manipulation – including the decisions in the Vaknin, Haruvi, and Tempo cases – indicate that a conviction of this offense is appropriate only when the defendant’s entire intent was to influence the price. In other words, that the positive indicates the negative, and where mixed purposes are at issue, and it is impossible to find that the defendant’s intent was entirely fraudulent, the defendant should not be convicted (para. 58 of the Notice of Appeal).

64.I am afraid that I cannot accept this reading of the case law. The fact that it was found in the Vaknin, Haruvi and Tempo cases that the appellants only intent was to influence the price, and they were thus convicted, does not mean that under different circumstances where the fraudulent intent was coupled with a legitimate intent, the court should not convict the defendant of manipulation. Naturally, the court does not engage theoretical issues and does not determine legal issues that are unnecessary in a concrete matter. It is therefore clear that in the circumstances of the above cases the court was not called upon to consider this situation of mixed purposes, but rather to only consider what was before it – that is, the sole purpose of influencing the price. But, this does not at all indicate that according to these cases when there are mixed purposes the defendant should be completely acquitted of the manipulation offense.

65.The District and Magistrates Courts adjudicated several cases where a defendant was found to have acted with mixed purposes. A Review of the different opinions reveal that the dominant approach is that in the case of mixed purposes, the defendant should be convicted of manipulation when the primary purpose was to influence the price, while the legitimate financial purpose was only secondary. Thus, for instance, in CrimC (Mag. Tel Aviv) 1349/98, The State of Israel v. Orasis (October 31, 2004), the court adjudicated the case of a person indicted for manipulation and it was found he acted with mixed purposes, and the purpose of “supporting the price was the determinative one” (para. 145 to Judge Dr. Binyamini). In that case, the court convicted the defendant of manipulation, noting the following:

“There certainly may be a case where an investor believes in a stock and is interested in purchasing additional stock, but decides to do this on a certain trade day in a manner that would raise the price of the stock, or would prevent its fall, while creating a misrepresentation to the reasonable investor. It is similarly possible that a person conducting activity in the stock exchange honestly wishes to sell his stock, but does so in a fraudulent manner that is designed to influence the price in order to make the sale at a price desirable to him, rather than at the market price. Such a case also falls within section 54(a)(2) of the Law” (para. 343).

66.Similarly, in CrimC (Mag. Tel Aviv) 8044/99, The State of Israel v. Tzafrir Engineers (January 3, 2005), the court convicted the defendant of manipulation under circumstances of mixed purposes where the fraudulent purpose was a primary purpose (para. 159-161 to Judge Dr. Binyamini’s verdict). In the Greenfiled – Mag. case, the court held that “in order to convict of the offense it must be shown that the dominant primary intent was impermissible” (para. 9 of then Deputy President Hadasi-Herman’s opinion, emphasis added – Rubinstein). Hence, when it was found that the fraudulent intent was secondary and the defendant’s primary intent was a legitimate financial purpose, the court acquitted the defendant. The appellate judges embraced this approach and held that “we are faced with a clear case of ‘mixed purposes,’ and it is extremely difficult to determine which was the defendants’ primary purpose and which was their secondary purpose” (Greenfield – Dist. Case, para. 76 of the opinion of President Goren and Judges Dr. Binyamini and Ronen).

67.Examples of certain exceptions for the main purpose test can be seen in the next two cases. In CrimC (Mag. Tel Aviv) 2587/06, The State of Israel v. Kabiri (March 15, 2008) the court held that “it should be examined whether participation in trade, as mentioned there – was merely an artificial activity… whose one and only purpose is to influence the price” (para. 26 of Judge Mor’s verdict, emphasis in original – Rubinstein). Since under the circumstances of the specific case it was found that “there is no activity before us whose purpose – as mentioned there – was exclusively to cause the price to fluctuate” (emphasis added – Rubinstein), the defendant was acquitted of manipulation. On the other hand, in CrimA (Dist. Tel Aviv) 70384/08, The State of Israel v. Opmath (November 23, 2009) (hereinafter: “the Opmath Case”) the court noted in obiter dictum that in order to be convicted of the manipulation offense, it must be shown that the defendant’s fraudulent intent was an actual intent, in addition to the legitimate financial purpose, and not necessarily the primary intent to which the financial purpose is merely secondary.

68.In his article, scholar Ekstein proposes the “fundamentality test” or the “but for test”. According to this test, “if but for the permissible/financial/business purpose one would not have conducted the security transaction under the given circumstances, then the offense of manipulation does not form” (Ekstein, p. 333). Ekstein adds that this is a one directional test: “where the defense can show that but for the permissible purpose the defendant would not have acted, he should be acquitted. However, where the prosecution can show that but for the fraudulent purpose the defendant would not have acted, it is not necessary for the defendant to be convicted” (there, p. 334).

69.Both parties before us refer to the American law to support their arguments, however, it seems that established jurisprudence regarding mixed purposes has yet to be developed there, and to the extent the issue was discussed it appears to have been raised mainly in obiter dicta. In US v. Mulheren, 938 F.2d 364, Court of Appeals, 2^nd Circuit (1991) (hereinafter: “Mulheren Case”) the court did in fact find that in order to convict a person of manipulation it must be shown that his single intent was fraudulent, however, as we will elaborate below, this was said beyond the necessary scope of the circumstances of the case at hand there (Id., 396). In SEC v. Masri, 523 F. Supp. 2d 361 (2007) (hereinafter: “Masri Case”), the court established (in a civil- administrative matter) a variation of the “but for” test (id. 372-73). Yet there, too, reviewing the circumstances of the matter reveals that there were no direct evidence to show a primary fraudulent intent (id. at footnote 19). However in SEC v. Kwak, F. Sec. L. Rep. 579 (2009) (hereinafter: “Kwak Case”), the court rejected (again, in a civil administrative manner) the defendants’ attempt to rely on the “but for” test established in the Masri case, and held that as long as the defendant’s fraudulent intent impacted the way he ultimately made the investment, the “but for” test loses its value (id., footnote 10). Thus, in my view, we cannot infer from American law any clear theory on this issue. I will add, analogously, that in Jewish law we find the idiom “this and this causes,” and according to the definition in the Talmudic Encyclopedia under this term (vol. 11, 70 1936/7) it means “a thing that has two causes to its being, or raising, one of permission and one of prohibition,” with the review of the different relevant laws on the matter.

70.In my opinion, neither the main purpose test nor the “but for” test reviewed above fit the manipulation offense. In my eyes, and clearly so, there is no real significance to the question of whether the activity also had a legitimate purpose. The tainting of the act by the fraudulent purpose fulfills the dominant element of influence by fraudulent means. When one fraudulently influences the price, and does so in order to influence the price by fraudulent means, he compromises the proper operation of the stock market; he distorts the information it represents, in order to produce an artificial profit, while harming the protection of various types of investors. “When there is ‘intent to harm’ there is an additional injury that does not exist in a situation of ‘recklessness’” (Kogler, 292); and in the manipulation offense, when a defendant acts with the purpose of influencing the price, he causes both an actual harm, as a result of obstructing the pricing of the concrete security, and a harm to the protected value at the basis of the manipulation offense, which is protecting the proper operation of the stock market. These harms are caused even when there is a legitimate financial purpose that accompanies the fraudulent intent, and even where, but for the legitimate financial purpose the defendant would not have made the investment.

71.As a result, I believe that where the defendant had intent to influence the price by fraudulent means, even if such intent was coupled with a legitimate financial purpose, we must find that the intent requirement had been met for purposes of the manipulation offense. This, as discussed, without necessarily finding that the fraudulent intent was primary whereas the legitimate financial intent was secondary to it. And note, so that no doubt remains, that where no intent to influence the price has been shown, but ultimately, as a result of legitimate financial activity the defendant influenced the price of the security, this will be insufficient for a conviction of the manipulation offense. In other words, I will again add the moral dimension – the fraudulent intent pollutes the activity, and this pollution is highly significant when examining whether the activity was proper.

The Manipulation Offense – From the General to the Particular

72.With regard to the result element: as discussed, the District Court was presented with three financial opinions which addressed this question – one by Mr. Yossi Bahir, on behalf of the State; a second by Professor Avner Kalai, on behalf of Madar; and a third by Professor Roni Ofer, on behalf of Haelyon. Even as early as when the District Court’s verdict was handed down, it seemed that there was no real dispute between the parties that as a result of the purchases Ofer Development made, the price of series D bonds increased (paras. 211 and 318 of the verdict); and we will recall that at the beginning of the first purchasing day, November 26, 2009, the price of series D bonds stood at 115.72 Agorot, while at the end of the last purchasing day, December 1, 2009, the price was 116.99 Agorot (see para. 143.2 of Bahir’s opinion). Madar does not challenge these facts before us, either. Thus, there is no dispute that the result element is met in our case.

73.As mentioned, Madar’s appeal challenges, primarily, the intent element. The District Court held that as Levi was acquitted from the charges against him, Madar could not be convicted of the influence plans as is. In other words, it could not be said that it was proven beyond a reasonable doubt that Madar intended to influence the price of the bonds “in the days, weeks or months” prior to the offering (para. 319 of the verdict). However, the District Court found that from the beginning of the trade days, Madar had a dual intent – a legitimate financial intent and a fraudulent intent to support the price of the bonds (para. 320 of the verdict). It seems that the State does not dispute, at least not at this stage, that at the basis of Madar’s activity was also a legitimate financial purpose. The dispute revolves, then, around the question whether, in addition to the legitimate financial purpose, Madar also had, as found by the District Court, a fraudulent intent, and if so – does the fact that there were mixed purposes mean that he should not be convicted of the offense of manipulation.

74.Madar maintains that the evidence relied upon by the District Court in the verdict demonstrates that his desire to influence the price was incidental to his legitimate decision to invest in Melisron’s bonds, and that the evidence – including the financial opinions – cannot lead to a conclusion that any of his actions were taken in a way that is inconsistent with the intent to make a legitimate investment. In addition, he claims that the court convicted him based on “things of the heart”, that is, on Madar’s alleged manipulative intent as inferred from his conversations with Haelyon prior to the offering of the series D bonds, but without the manipulative intent having any actual manifestation in his actions. In other words, the element of “by fraudulent means” required for a conviction of manipulation was not proven.

75.I believe that the evidence paints a different picture. The primary evidence used to prove Madar’s guilt in the District Court was a series of conversations between Madar and Haelyon, beginning on November 26, 2009 and ending on December 1, 2009. These conversations were recorded by the managers of the offering (recall that the series D bonds were offered on December 2, 2009). For example, in a conversation held between Madar and Haelyon on November 26, 2009 (Prosecution exhibit 8-1) the following was said (emphasis added – Rubinstein):

“Madar: Ok, listen, we can actually start… uh… to make purchases of Melisron’s series D bonds…

…

Ok, you know… like what’s called “market making”?

Haelyon: Yes, yes.

Madar: Collect exactly… start collecting.

Haelyon: Without going wild.

Madar: What?

Haelyon: Without going wild. Slowly.

Madar: Exactly. So we’ll have… the right gains as they say

Haelyon: I understand. For how much money?

Madar: Look, you have 20 million there. I need four trade days.

Haelyon: Alright.

Madar: You have no limit. And even if…even if there won’t be enough, so we’re talking, it’s not like…

Haelyon: Sure, sure.

…

Madar: But don’t go through it all today. You know I need till next week.

Haelyon: Everything slowly.

Madar: Exactly.

Haelyon: I understand.”

And later that day (Prosecution exhibit 8-3):

“Haelyon: Right now there’s not much need… no need to fire a lot of the ammunition.

Madar: Yes. Exactly, exactly.  

Haelyon: That’s what I’m doing. You see, not running, not…

Madar: That’s excellent for me. Excellent for me.

Haelyon: You see that I’m standing, if they throw I stand further below, they throw… no, not taking risks, not trying to… the market is going down but there’s a buyer here… that’s what… there are buyers.

Madar: That’s not good because it calls attention, you see? They go in, see the turnovers, see this… this, this is perfectly all right.”

And a conversation dated November 30, 2009 (Prosecution exhibit 8-10) reveals the following:

“Haelyon: We bought 5.3 million.

Madar: What a crazy turnover.

Haelyon: Yeah, so I don’t know what that is (chuckles).

Madar: Crazy turnover!

Haelyon: Yeah, yeah. There are buyers and soon there will be some more buyers, God willing.

Madar: Yeah, I see everything increasing or going our way.

…

All right. Give it a nice push toward the end.

Haelyon: Definitely.”

76.Things become crystal clear in conversations between Madar and Haelyon on November 1, 2009, the day before the offering, where Madar sets for Haelyon a target price for the bonds. First, the following (Prosecution exhibit 8-12):

“Haelyon: … Wait a minute, I’ll tell you how much we bought. Ok. Let’s say from the 20^th there wasn’t… we bought, we bought 2.2 million, 2.2 million and 8.6 let’s say.

Madar: 13 total.

Haelyon: 13.

Madar: Ok, good, so… uh… keep going. Try to get to even a price of 117.

Haelyon: All right. So I have about 13… About 6 million more. Right?

Madar: If you see you’re falling apart and that, tell me and I’ll get more money.

Haelyon: Good.”

And later that day (Prosecution exhibit 8-14):

“Madar: You got another 10 million.

Haelyon: All right.

Madar: All right?! Ohh… Try to get to 117 with it.

Haelyon: I’ll do everything.”

And more from that day (Prosecution exhibit 8-16):

Madar: I’m starting a new job with you, and new job, and we will continue it tomorrow too, tomorrow you’ll get more money.

Haelyon: No, not all right. So today I’m giving it my all… (laughing)

Madar: You’re giving it all you’ve got on series D to complete the mission – you need to get to 117.

Haelyon: I’ll try my best. 

Madar: Try your best, exactly. Now beyond this you won’t use all the ammunition.”

77.During his interrogations at the Israeli Securities Authority, Madar confirmed that he instructed Haelyon to achieve a price of 117 (see his interrogation dated April 27, 2010, p. 18, l. 30-31, p. 19, l. 28-29 (Prosecution exhibit 2-1); his interrogation dated April 28, 2010, p. 2, l. 28-30 (Prosecution exhibit 2-2)). In his testimony in court he changed his version and said this was a maximum price (a “limit” order). In other words, he intended for Haelyon to make the purchases of the bonds as long as their price does not go over 117, rather than in order to achieve a price of 117 (p. 732 of the record hearing, l. 16-25.) In my opinion, the courts was correct in preferring Madar’s version in his interrogation rather than the one he offered on the witness stand – his version on the stand is a testimony that is inconsistent with the content of the conversations themselves and the manner in which Madar gave the buy orders, and it is in fact contradictory to what he said at the Securities Authority: when Madar was asked, explicitly, whether this was a “limit” order, because Levi had claimed in his interrogation that what they meant was “buy up to the 117 limit,” he replied – “I don’t remember such a thing” and later – “beyond 117 was never discussed, so it’s irrelevant to try to get beyond 117…” (his interrogation dated April 28, 2010, p. 3, l. 16-30 (Prosecution exhibit 2-2.) Additionally, even on the stand, Madar noted that on the last day of trade he “had Melisron’s goals also in mind” (Record of hearing, p. 732, l. 31-32.)

78.Haelyon’s testimony sheds additional light on the above. Haelyon noted that on December 1, 2009 there was an explicit order to buy at a price of 117, and from the moment that order was given he did not try to purchase for less, as this was a “client’s order” (Record of hearing, p. 1174, l. 32 through p. 1175, l. 10.) When he was asked if it was unusual for a client to explicitly specify a price, he replied in the affirmative (Record of hearing, p. 1175, l. 30 through p. 1176, l. 1).

79.Madar disputes the way the District Court interpreted the financial opinions in this regard. He argues that both Bahir’s opinion and Kalai’s opinion reveal that the trade data in and of itself do not conclusively indicate fraudulent intent on Madar’s part. Additionally, he argues that the “further step” that Bahir took towards concluding that Madar had intended to act by fraudulent means, relies on the transcripts of the above conversations, which he received from the State. In this regard, it is argued that Bahir, as a financial expert, should have reached his conclusion solely on the basis of relevant financial information, and therefore no weight should be attributed to his opinion as to the conversations’ transcripts which point, primarily and at most, to “intentions of the heart” and are an insufficient basis for Madar’s conviction.

80.I cannot accept this argument. The role of an expert witness is to paint the court a fuller picture of the issue at hand within his expertise (Goren, 484 (11^th edition, 2013). For such purposes, the court may, when appropriate, consider the expert’s professional conclusion on the issue at hand in reliance on the relevant evidence (CA 1639/01, Ma’ayan Tzvi Kibbutz v. Krishov, para. 25 of (then) Justice Naor (2001)). Of course, this may not substitute the discretion of the presiding judge, who alone, is responsible to reach a judicial conclusion based on all the evidence and testimonies presented, including relevant opinions and expert testimonies (CrimA 1839/92, Ashkar v. The State of Israel, para. 4 (1994); HCJ 5227/97, David v. The Great Rabinical Court in Jerusalem, IsrSC 55(1) 453, Justice Kedmi’s opinion (1998)). The specific relevant evidence is part of the context that the witness must consider, in addition to general professional knowledge. After all – “for this it was created.”

81.In our case, from the outset, the financial opinions were brought in order to examine, inter alia, the purpose that motivated the purchase of series D bonds. Kalai found, based on the trade data alone, that “Ofer Development’s choice to purchase in the market and the characteristics of the purchases fit, financially speaking, the conduct of an investor aimed at an investment opportunity” (Defendant’s exhibit 45, para. 199.) In his initial opinion from March 2011 (Defendant’s exhibit 23,) before receiving the transcripts of the conversations between Madar and Haelyon, which were presented above, Bahir noted the following:

“It is possible to interpret the trading activities in two ways: One: this was a deliberate activity designed to raise the price to 117. The second: the broker was instructed to purchase bonds in a high quantity up to a price of 117… In light of this it is difficult to conclusively determine, based on the trade information alone, that the broker conducted deliberate activity in order to raise the price on this day…” (id. para. 2.4.4.4.; emphasis in the original – Rubinstein).

And later, in his opinion from March 2012 (Prosecution exhibit 9), after he received the transcripts of conversations from the four days prior to the issuing, Bahir found as follows:

“On December 1, 2009 an employee of Poalim Sahar (HeAlion – Rubinstein) was instructed by a representative of Ofer Development (Madar – Rubnistein) to bring the series D bonds to a target price of 117 Agorot at the stock exchange. Analysis of the methods of executing the trade orders for Ofer Development on December 1, 2009 reveals that indeed it exhibited signs of a (successful) attempt to raise the price of the bond to 117 Agorot” (Id., para. 163).

82.In my opinion, the distinction that Madar wishes to create between the way Bahir examined the pattern of investment and the way he examined the conversations’ transcripts, claiming that the latter was outside of Bahir’s expertise, is an artificial distinction. It is clear that both are important in order to understand the financial objective behind the investment, and it is not out of the scope of either party’s experts’ discretion. Therefore, the fact that Kalai did not address the transaction results in his opinion leads it to be considered – with all due respect – as lacking. Additionally, as the District Court noted, Bahir’s conclusion in relying on the transcripts, though it contributes to clarifying the matter, is not necessary – as Bahir mentioned, in his first opinion, that it is possible that Ofer’s activity was meant to influence the price and bring it to 117. This is joined by the conversations’ transcripts which show that Madar in fact instructed Haelyon to bring the price to 117. Given these, the court can also “put two and two together” and come to a similar conclusion that Madar intended to influence the price.

83.As for applying American law, first I will note that indeed in financial matters, and unlike obvious “local” issues, additional room exists to consider comparative law, since other countries also face similar problems and Israel did not “invent the wheel” (see LCrimA 779/06, Kital International Holdings and Development Inc. v. Shaul Maman, para 11 (2012)). And yet, as always, we must consider it carefully and mindfully. As noted at the time by President Barak:

“Comparative law is not about merely comparing the provisions of the law. Such comparison is of no importance. Comparative law is fruitful if a broad area is explored, on the basis of common premises. In the matter before us, comparison with other countries as to the arrangement of managing investment portfolios is not conclusive. Indeed, the complexity of the arrangements in each and every state, the difficulties and the flaws which it comes to address, and the differences in the stock market and financial systems in each of the states – all of these impede the intelligent and informed use of comparative law” (HCJ 1715/97, Office of Investment Managers in Israel v. The Minister of Finance, IsrSC 51(4) 367, 403 (1997)).

And in our case, American law sets different regulations (termed Regulation M) with regard to the intervention in the offering of a new security, in order to prevent potential future manipulation, in instances which have inherent potential for dangerous intervention in the market. In such cases, the state is not required to prove the existence of fraudulent intent, and thus the question of mixed purposes does not arise. The preamble reads as follows:

Rather than addressing manipulation after the fact, Regulation M seeds to prevent it by generally precluding certain persons from engaging in specified market activities. Also, unlike the more general anti-manipulation provisions, Regulation M does not require the Commission to prove in an enforcement action that distribution participants have a manipulative intent or purpose” (Amendments to Regulation M: Anti-Manipulation Rules Concerning Securities offerings, available at:
http://www.sec.gov/rules/proposed/33-8511.htm#P42_7646)

Accordingly, Regulation 17 CFR 242.101 establishes:

“Unlawful Activity. In connection with a distribution of securities, it shall be unlawful for a distribution participant or an affiliated purchaser of such a person, directly or indirectly, to bid for, purchase, or attempt to induce any person to bid for a purchase, a covered security during the applicable restricted period.”

Thus, it is possible, and of course without setting anything in stone, that according to the above rules, the incident before us, in which Madar decided, as he was serving as an officer of Ofer, to purchase Melisron’s series D bonds, while he himself took an active role in offering such bonds, should have been prohibited in advanced per se. As such, we would not even be called upon to consider the application of the manipulation offense in general, and the element of intent in particular. As discussed, we must take this into consideration when comparing the manipulation offense in American law to our case.

84.As for applying the American case law on mixed purposes – as mentioned, these do not reveal a coherent and consistent jurisprudence. In contrast to Madar’s position, I believe it is insufficient to support his argument that the fact that he had a legitimate financial purpose for purchasing the series D bonds lessens his fraudulent intent and he therefore must not be convicted of the offense of manipulation. Madar refers to the Mulheren case where it was held:

“[W]e will assume, without deciding on this appeal, that an investor may lawfully be convicted under Rule 10b-5 where the purpose of his transaction is solely to affect the price of a security.” (Id. p. 369, emphasis added – Rubinstein).

Accordingly, once it was not found there that the appellant’s sole purpose was to influence the price, it was decided to acquit him. However, reviewing the opinions show that ultimately, the court found that it was not at all proven that he acted by fraudulent means to influence the price (id., 370-72). Thus, the court’s holding with regard to the sole intent requirement was merely theoretical, and should be weighed accordingly. Additionally, it is interesting to note that the opinion also includes the following:

“Clearly, this case would be much less troubling had Boesky (the investor – Rubinstein) said ‘I’d like to bring it up to 45’ or, perhaps, even ‘I’d like to see it trading at 45.’ But to hand a conviction on the threadbare phrase ‘it would be great if it traded at 45,’ particularly when the government does not suggest that the words were some sort of sinister code, defies reason and a sense of fair play. Any doubt about this is dispelled by the remaining evidence at trial” (id., 370)”.

And recall that in our case, Madar explicitly told Haelyon “try to bring it to 117” (Prosecution exhibit 8-14) and “you should bring it to 117” (Prosecution exhibit 8-16) and not – as in the American example – “it would be great if it traded at 117.” Therefore, I believe that if anything is to be inferred from that case to ours, it is the opposite conclusion that Madar wishes us to make.

85.In the Masri case, the court developed a certain variation of the “but for” test discussed above, and held that in order to prove the intent element, the state must show that but for the fraudulent intent, the defendant would not have taken the relevant actions (id., 372-73). Yet, in that same case, it was held that, under the circumstances, there was no direct evidence pointing to the defendants’ intent to artificially influence the price, and therefore it is unclear how the court applied the test under the circumstances relevant there (id., fn 19). As discussed, this significantly differs from our matter, where Madar’s intent to influence the price is learned directly from what he said to Haelyon before the offering. Hence, I believe, that this decision too can lead to no conclusive conclusions in our matter.

86.On the other hand, in the Kwak case, the court rejected the defendants’ attempt to rely on the “but for” test established in the Masri case. It was held, inter alia, that the “but for” test loses its importance if it has been factually found that the defendant’s fraudulent intent altered the way he intended to make the investment, even if it was motivated by legitimate financial purposes (there, fn. 10). In any event, it was held that while the state proved that the defendants had fraudulent intent, it was sufficient to find them culpable for manipulation. It seems that the circumstances of this case fit ours more than the previous cases, because – as opposed to the other cases presented – it was explicitly found that the defendants intended to execute a manipulation, even if such intent was coupled with a legitimate financial intent. Additionally, as in our case, the fraudulent intent influenced the means in which the legitimate financial purpose was executed – even if Madar had intended to make a legitimate financial investment, his conversations with Haelyon reveal that his fraudulent intent influenced the means by which the investment would take place – in four days alone, without “using all the ammunition” too early. Thus, in our case, and similar to the American law, the legitimate financial intent cannot mitigate the fact that Madar operated by fraudulent means to an extent, that he must not be convicted of the offense of manipulation.

87.Madar also challenges the court’s conclusions regarding his consultation with Ofer’s attorneys. Madar argues that this consultation indicates that he had no intention of influencing the price, as had he wished to do so, he would not have consulted the attorneys to make sure that his actions were lawful (para. 75 of the notice of appeal). Yet Madar emphasizes that he is not making a claim of reliance on attorney’s counsel, which may, in extreme cases, absolve the consulting party from criminal responsibility (para 34(19) of the Penal Law), but claims that this can indicate both his good faith and that he did not act with intent to influence. As for the District Court’s finding that Madar did not share relevant information with the attorneys, which indicates he lacked good faith, it was argued that the court erred in this finding since the attorneys – as experts on the matters – were the ones who should have raised the potential problems in circumstances such as ours, and to request information accordingly. Madar’s good faith is seen, as argued, by the mere fact that he brought the issue to them.

88.In my opinion, Madar’s consultation with the attorneys does not indicate his good faith, as argued. In an email sent by Ofer’s attorney to Levi and Madar on November 25, 2009, it was written: “The purpose of the report is to prepare the purchase of series D bonds (without concern for use of inside information) one trading day after publishing the information to the public (Prosecution exhibit 18). Another email from the same day sent to Levi, Madar and Yaacovi reveals that the consultation revolved around the way the offering report must be prepared (Prosecution exhibit 20). Madar did not argue, and certainly did not present any evidence to this effect, that he presented the attorneys with information that could have raised their suspicions that he intended to influence the price, and therefore, I do not think that this can indicate he acted in good faith. This is true even if we went as far as to say that he tried to “launder” his activity by acquiring the attorneys’ approval while they had only partial information.

89.Nevertheless, and with the warranted caution because we do not have full information regarding this matter and the Ofer attorneys are not a party in the proceedings before us, I will note that in my view, it should be internalized that these cases necessitate careful legal advice from the lawyers consulted. When the senior officers in each of the companies relevant to the transaction are the same people, and these companies are connected by ownership, there is a concern that they will take unlawful action, whether knowingly or not. This is despite the law’s requirement that each company act as a separate legal entity working toward its own profit, and thus there is supervision accordingly. And so, when it comes to the senior officers in each of the companies, there is a concern – and this is said, or course, without “generally” tainting anyone – that with the intention to benefit the conglomerate as a whole, they will act in ways that may harm one of the corporations or the investing public, and that in some cases, as in ours, this may amount to a criminal offense. The business sense motivates those heading financial corporations and their desire to achieve profits as expected, and they may from time to time fail and fall in traps that lawyers could have prevented, as “you shall not place an obstacle before the blind”. Therefore, the legal advice in these matters must be “active” and clarify the legal boundaries and the different nuances, by virtue of the corporate structure and the identities of the officers, even if the client did not explicitly reveal to the lawyers any wishes to execute acts that may amount to criminal offenses. I highly doubt that the client would come to the attorney and ask, for example: “I wish to manipulate the stock market, what is your legal opinion on the matter?” And still, the lawyer should convey to the client the legal complexity of the matter and the different nuances beforehand, so that the lawyer can be seen to properly serve the client.

90.Before concluding this part, and beyond the necessary scope, I will note that Madar’s motive in taking the fraudulent action was clear – to benefit Melisron, to which he provided financial services, as well as ultimately benefited Ofer Group, where Madar served as financial manager. Though Madar did not enjoy personal financial gains, benefiting the companies’ financial state would clearly have favorable consequences for Madar as the one  responsible for their financial management, and contribute to solidifying his status. In any event, this is said beyond the scope, as the evidence clearly points to Madar’s fraudulent intent, after being carried away and being overly eager in fulfilling his duties, that led him, regrettably, into the boundaries of criminal behavior and therefore there is no need to address the motive at the basis of his activity.

91.To conclude this part: the evidence reveals that when he came to purchase series D bonds, Madar acted out of mixed purposes. One purpose was a legitimate financial purpose to invest in the bonds to benefit Ofer Development. His second purpose – a clear fraudulent intent to influence the price and bring the price of the bond to 117 Agorot, as he did successfully. Therefore, Madar acted in order to influence the price, by fraudulent means, and the District Court properly convicted him for the offense of manipulation under section 54(a)(2) of the Law.

Offenses of Reporting and Inducement

92.First, I will comment that from the outset, Madar’s challenge to his conviction of the offenses of reporting and of inducement were presented at the end of his notice of appeal (paras. 94-95) and were not included in the main arguments. Substantively, it was claimed that should Madar’s appeal of the offense of manipulation be granted, his conviction of the other offenses would be voided. But, even if Madar’s appeal of the manipulation offense be rejected, his appeal of the offenses of inducement and reporting should be granted because the purchase of the bonds was done spontaneously, rather than in the course of Madar’s duties in Melisron, and in any event Madar was not responsible for Melisron’s reports, and thus must not be convicted of these offenses. At the hearing held before us, it was argued that the District Court erred with regard to the first reporting offense, as the court found Madar to have omitted a material detail from the report dated November 25, 2009, for which he was convicted of the first reporting offense. However, the court also found that Madar’s fraudulent intent materialized only the day after, on November 26. Therefore, there was no place to find that he omitted a material detail from the prospectus and for this reason too, there was no place to convict him for this offense.

93.I believe that these arguments by Madar should be rejected. As for the first reporting offense – the report with the intention to mislead according to section 53(a)(4) of the Law. Even if Madar’s argument that he was not an officer of Melisron during the relevant period should be accepted – and as I will detail below in discussing the State’s appeal against Melisron, in my opinion this argument should be rejected – this could not mitigate Madar’s responsibility in this regard. As this Court has held before:

“The provision of section 53(a)(4), according to its language, does not limit the type of people who may be considered as ‘a person who… caused” the reporting duty to be breached. The provision does not restrict the duty to report to a corporation or its officers… Therefore, even one who is not an officer of the corporation, who caused the corporation to mislead in its reports, may be criminally responsible under the section, and the case before us is one such case”. (CrimA 5307/09, Davis v. The State of Israel, para. 92 of Deputy President Rivlin (2010) (hereinafter: “the Davis Case”).

And in our case, Madar – who was charged with Melisron’s financial matters – chose not to include in Melisron’s report from November 25, 2009 the massive purchases of series D bonds by Ofer Development, which were made, as mentioned and among others, with the goal of influencing the price of Melisron’s bonds. This failure amounts to a report with the intention to mislead, in violation of the provision is section 53(a)(4) as mentioned. And in any event, the evidence shows that on November 25, 2009 Madar emailed Melisron’s attorney about his report regarding the purchase of the bonds, and wrote: “Alright with me, if Avi does not have any comments we can issue the report” (Prosecution exhibit 19). Hence it is difficult to accept Madar’s argument that he was not responsible for Melisrons’ report (even though Levi, as CEO of the company, was also required to approve it).

94.As for Madar’s argument in regard to the date of the fraudulent intent’s materialization – the court reached a factual finding that Madar’s conduct during the purchase of the bonds, including his choice not to consult his attorneys on this matter, shows that as early as the date of the report’s publication, the day prior to purchasing the bonds, he intended to conceal the influence plan from the investing public (para. 356 of the verdict). Therefore, his argument, as raised in the hearing, that it was impossible to conceal his fraudulent intent from the report on November 25, 2009 when it only materialized, according to the District Court, on November 26, 2009 must be rejected. Further, even if it had been found that his fraudulent intent only materialized the day after the report was published, I am hard pressed to accept the argument that this could mitigate his criminal responsibility. As the State pointed out, Madar could have corrected the report after its publication, and once he had chosen not to do so, knowing that the report may mislead investors, it must be found that the elements of the offense were met in this regard.

95.As for the second reporting offense – including a misleading item in a prospectus under section 53(a)(2) of the Law: the District Court discussed the difference between this section and section 54(a)(4) of the Law, particularly before Amendment 45 of the Law (and as discussed, the relevant offense was committed prior to the amendment). Madar does not challenge this interpretation and so I will repeat it briefly. Section 53(a)(2) concerns the prohibition of breaching the duty to report in the initial market (in a prospectus, including a shelf proposal report, as in our case), whereas section 53(a)(4) concerns the prohibition of breaching the duty to report in the secondary market (the ongoing duty to report). Prior to Amendment 45 of the Law, there seemed to be some difference between the two sections’ actus reus. Section 53(a)(4) established (and still does) that it must also be applied to “A person who… caused a report, notice, registration document or purchase offer specification, pursuant to this Law or regulations enacted hereunder and submitted to the ISA or the stock exchange to contain a misleading item - all with the intention of misleading a reasonable investor”. Section 53(a)(2), prior to its amendment, did not include this possibility explicitly, and seemingly only allowed the convictions of those who were responsible for ongoing reporting, and not of those who were not responsible for the report, but through their actions (or failures, as in our case), caused it to be published with a misleading item. As the District Court noted, relying on the relevant discussions in the Knesset, it is doubtful whether the legislature wished to create this distinction between the actus reus of the two offenses – the rationale behind the expansion of the responsibility for reporting in the initial market to those who caused the inclusion of a misleading detail in the report, rather than those who were responsible for the report, is no less and no more important than that which exists for the secondary market. Therefore, even if Madar had not been responsible, as he argues, for the publication of the shelf proposal report in our matter, this is insufficient to establish in advance that he must not be convicted of committing the offense.

96.As a result, I believe that even if Madar had not been the one to sign the shelf report dated December 2, 2009, this would not have mitigated his criminal responsibility in this matter. First, the rationale for the court’s finding in the Davis case, which we discussed above with regard to the offense under section 53(a)(4) of the Law, also applies here (see and compare CrimA 2103/07, Horovitz v. The State of Israel, paras. 55-60 (2008) (hereinafter: “the Horovitz Case”)). Any other interpretation is inconsistent with the purpose of the provision, which is aimed at preventing the misleading of stock market investors. In our case, Madar, who was responsible for managing Melisron’s finances at the time, and was present at the board of directors meeting on December 2, 2009 (as indicated by the meeting’s minutes, Prosecution exhibit 33), failed to report in the shelf report from December 2, 2009 about the purchase of the bonds, which were bought several days prior in order to influence the price. Even if he was not the person directly responsible for the shelf report’s publication and did not sign the report, it is enough that he was responsible for managing Melisron’s financial matters and played a dominant role in the actual offering, to establish that he should be convicted of the offense of including a misleading item in a prospectus by way of failure to act – by not including a material detail in the report, that is, the purchase of the bonds – which was done to influence the price.

97.As for Madar’s conviction of the offense of inducement: the court held (para. 392 of the verdict), that the way in which Madar acted amounts to making a material false representation. The court held that this had real potential to influence the discretion and consideration of investors when deciding whether to purchase Melisron’s bonds, and that this false representation fell within the scope of the offense of inducement under section 54(a)(1) of the Law. In the appeal, Madar does not raise a substantive argument against the well founded holdings of the District Court on this matter, and I therefore find no need to address it. However, it should be noted, and we will return to this point in the sentencing phase as well, that the mere conviction of this offense has no real weight in setting the appropriate sentence, because both the offense of manipulation and the offense of inducement stem from the same events, and the activities at their root are similar.

Madar’s Sentence And The Appeal Against His Sentence

98.The District Court set the range of Madar’s sentence between 9 and 24 months’ imprisonment, with additional imprisonment time suspended. In doing so, the court considered, on the one hand, the nature of the offenses which Madar was convicted of, and the harm caused to the stock market as a whole as a result, and on the other hand, the fact that Madar did not commit the crimes for his own immediate personal financial gain, and that it had not been proven that long term planning preceded the commission of the offenses. The court additionally mentioned that the range of the sentence was set in light of the offenses for which Madar was convicted as a whole, because it was one ongoing event – instructing the purchase of series D bonds in order to influence the price without reporting to the investing public.

99.As for Madar’s sentence within the range of sentencing, the District Court sentenced Madar for a year of imprisonment, 9 months of suspended imprisonment, and a fine of NIS 100,000. The court considered the character witnesses presented: Adv. Doron who has professional ties with Madar and wished to testify as to his character as an honest financial manager; Mr. Gutterman, Madar’s father in law who testified about Madar’s positive performance as a family man and about Madar’s difficult state of mind since the events occurred and the investigation began; and to Madar’s personal appeal, in which he described how the events and the criminal proceedings that followed caused him years of shame and insomnia. The court also considered different persons and entities who wrote the court and testified to his good character, both personally and professionally. Further, according to section 40.11 of the Penal Law, the court noted the relevant circumstances around Madar’s sentencing: his positive background and the impact of the sentence on his family – his wife and three children, including a baby born about a month prior to the sentencing; his good behavior and contribution to society, his lack of any criminal history; as well as the fact that he did not commit the offenses out of greed or personal financial gain but in order to benefit the companies.

100.In conclusion, the court noted that his sentence was part of a recent trend to increase sentencing for financial and economic offenses, which are usually committed, by their very nature and substance, by normal, positive people who may even invest some of their time and money to contribute to society. The past years’ amendments to the Penal Law and the Securities Law, so it was held, require significantly heavier sentences for such offenses in order to deter actors in the stock market from committing unlawful activity, as well as to provide a sense of security to the investing public, whoever they may be.

101.With regard to his sentence, Madar argued that in setting a range for the sentence the court failed to sufficiently account for Madar’s belief that his actions were indeed lawful, and that in any event – he did not act out of personal greed. He also argued that not enough weight had been given to the fact that this was the first instance where a court convicted a person in a case of mixed purposes, and that this should lower the bar for the proper sentence. In addition, it was argued that in previous cases, which were much more egregious than ours, when the defendants acted with full awareness of the unlawfulness, and out of personal greed, the sentences were lighter. It was claimed that the court did not consider that had Madar’s activity taken place now, then under Amendment 45 of the Law the appropriate proceeding likely would have been administrative rather than criminal, and thus the sentencing range appropriate for our case is lower than that set by the District Court.

102.Madar further maintains that the District Court erred by holding that there is no room to stray from the sentencing range it established. It was noted in this regard that in a different cases adjudicated by the District Court, it was decided that there was room to lower the sentence as the defendant was a positive person with no criminal history, whereas in our case the court did not find this to be a significant mitigating factor, which constitutes a departure from the principle of uniformity in sentencing. It was also argued in this regard that precisely because Madar was a positive person with no criminal history, his chances of rehabilitation are greater, which the court should also have considered. It was thus argued that his sentence should be lighter and he should not be sentenced to incarceration. It was finally claimed, in the alternative, that the court erred in setting the sentence within the sentencing range established because under the circumstances of this matter, the sentence should have been set, at most, at the lowest point of the sentencing range – that is, nine months incarceration.

103.The State argues, in contrast, that Madar’s argument that in a case of mixed purposes, such as this case, the sentence should be lighter must be rejected. This is because the social value protected by the offense of fraud – protecting the stock market and the investing public – is similarly harmed even when the offender had a legitimate financial purpose along with the fraudulent one. It was argued that although in the cases on which Madar relies the offenders were given lighter sentences, this was at a time when the sentencing standard for securities offenses was lower than the standard common in recent years. Currently, courts repeatedly emphasize that the appropriate sentence for these offenses is incarceration.

104.As for Madar’s claim that had the offense been committed today the proper sentence would have been administrative rather than criminal, it was maintained that this claim is incorrect. Administrative enforcement is designed to target offenses where no intent was proven, and this is unlike the relevant offense here, where the intent is one of the elements of the offense of manipulation and the court did in fact hold in no uncertain terms that Madar had such intent. Therefore, even had this case been adjudicated today, it likely would have reached the criminal enforcement track. In conclusion, it was noted that to the extent that mitigating factors exist in our matter – and primarily, that Madar did not operate out of personal greed – these were considered by the District Court, which sentenced the appellant to a light sentence in considering the severity of the offense.

105.After reviewing and hearing the parties’ arguments in this regard, should my opinion be heard, we would not intervene in the sentence to which the District Court sentenced Madar. This is because it does not stray from the recent years’ trend of heavier penalties for white collar crimes, which stems from the unique nature of such offenses:

“Let us not mischaracterize financial offenses as ‘white and pure’. These are sophisticated offenses, which are difficult to detect, usually committed by offenders with status and education who use others’ finances while exploiting their power and status and breaching their fiduciary duties. Often these offenses remain hidden for many years, and when they are discovered, the serious harms they caused are also revealed. Such harms are generally much more severe than the harms caused by ‘regular’ property offenses. It was with good reason that this Court has found over the past several years that it is time to raise the standard of penalties for financial offenses, including incarceration when appropriate.” (CrimA 4430/13, Sharon v. The State of Israel, para. 22 of Justice Danziger’s opinion (2014); see also CrimA 9788/03, Topaz v. The State of Israel, IsrSC 58(3) 245, 250 (2000); the Horovitz case, para. 339; CrimA 677/14, Dankner v. The State of Israel, para 37 (July 7, 2014) (hereinafter: “the Dankner Case”)).

I am aware that we are concerned with private companies, aside from Melisron, but particularly in light of the proposed outcome in terms of Melisron, recall that the sentence for offenses in the field of securities in an “area” other than inside information was discussed in CrimA 6020/12, The State of Israel v. Eden, (2013) (hereinafter: “the Eden Case”), where my colleague Justice Barak-Erez discussed (para. 29) the “justified weight of the clear public interest in enforcing the law in the field of financial offenses in the stock market… as a counter balance of this temptation (for ‘normative’ officers wishing to exploit an opportunity – Rubinstein) the legislature opted to establish a difficult sanction, which must come to life as part of the battle against crime that harms investors’ private interests, and even more seriously – the public interest of the entire Israeli market in an efficient and reliable stock market.” Recall that we were concerned there with the offense under section 52C of the Securities Law, the sentence for which is identical to that for the offense in section 54(a), that is, up to five years imprisonment, a fine five times – and according to the new version of the Law, for a corporation up to twenty five times – the fine set in section 61(a)(4) of the Penal Law. And in the Eden case the Deputy President discussed the “tipping point” in terms of the sentence there, and I myself noted:

“Let us remember that the legislature set a sentencing tag of five years, among others, to the offense under section 52C as discussed in this case. I myself believe that there is no escaping raising the sentencing bar in such cases. The nature of these offenses is of clear harm to the public’s trust and there are no clichés, in the common ‘laundered’ termination. But let us put ourselves in investors’ shoes, for example, who learn that the heads of a company in which they invested their funds are profiting at the expense of the investing public. Indeed, a criminal conviction is a blemish, community service that substitutes incarceration is unpleasant – but they cannot at all be compared to incarceration behind bars, doubtfully a pleasure even in the best of prisons. It means the denial of freedom, removal from family, being constantly subjected to the control of others, generally unpleasant company, and the like. We cannot therefore analogize such incarceration to other forms of punishment, certainly not for a person who had been considered normative and for his entire life only read about prisons or watched them in films. Perhaps incarceration behind bars would deter, assuming deterrence has true efficacy, and should it be expressed – as it should – that this is the expected fate of an inside information offender.”

It would seem this applies to our matter as well.

106.As discussed, the actions for which Madar was convicted were harmful. As mentioned in a similar context “their outcome is not manifested only in harm to one investor or another, but in the loss of public trust in the stock market” (the Tempo case, para. 33 of President Barak’s opinion). We will also mention that our matter concerns significant amounts of funds, since the expansion of series D bonds by Melisron and the purchase of the bonds by Ofer were at sums of tens on millions of Shekels.

107.The sentence handed down by the District Court certainly is not light. Especially in light of the fact that Madar did not act for personal gain, and that in addition to his fraudulent intent, his investment had a legitimate financial purpose. On the one hand, I agree with Madar that there was room to give the latter consideration more weight in the sentencing phase, as the fate of those who acted out of fraudulent intent should be harsher than those who also acted out of legitimate financial purposes. This is especially true when, as in our case, the legitimate purpose motivated the investment for a long time, while the fraudulent intent materialized, as the evidence reveals, only several days before it was carried out.

108.On the other hand, I believe the District Court did not give sufficient weight to the deterrence considerations in cases such as this, as it did not address considerations of general deterrence (para. 22 of the verdict). The court addressed general deterrence in terms of the trend of heavier sentencing beyond the range, but section 40G of the Penal Law addresses heavier sentencing within the established ranged. As I have noted in a similar context:

“In my opinion, even those who do not believe that general deterrence, perhaps as opposed to specific deterrence, usually works within the context of ‘classic’ crime such as murder, robbery, rape, assault and the like (see CrimA 7534/11, Mizrahi v. The State of Israel, (2013), para. 3 of my opinion), could think that it has a chance with regard to financial offenses, or ‘white collar’. The planner of offenses – or should we say ‘schemer’ – who learns that his fate may be incarceration, might perhaps think twice. As noted, it seems in our case that a deterring sentence is designed to deter not just the appellant himself going forward, but just as much the public, and primarily – as noted by the District Court – those serving in high offices within corporations, lest they betray the trust given to them. Perhaps precisely for essentially regular, good people who plan their conduct, the ‘planning’ would also include the risk of criminal prosecution” (the Dankner case, paras 35-36).

In my view, these things are particularly apt for our case, once we are concerned with a conglomerate, and when the senior officers are the same people for each of the companies, there is real concern that while the officer works under one hat, he would consider factors that are relevant to his other hat. As Madar noted in his testimony:

“There was no conflict of interests whatsoever between Ofer and Melisron, it was exactly the same. Both had the same interests, but somehow I must have become confused, I had Melisron’s goals in mind, too.” (Record of hearing, p. 732, l. 29-32; emphasis added – Rubinstein).

I believe that the concern for such “confusion” is almost inherent to the situation described. Though the legislature did not find it fit to prevent the possibility of wearing several hats, the courts must send forth a clear message of deterrence: while one serves as a senior officer in several companies related by ownership, one must take extra precautions when operating in the intersection between them, particularly when one company is a public company, with all that it entails, and particularly when it comes to the decision by one of the companies to purchase securities of another. For if one does not, one risks the significant sentence of incarceration.

109.As for the claim that administrative enforcement is appropriate for our purposes and therefore the range of sentencing should be lighter, I fear I  cannot accept it. The legislative memorandum of the bill regarding the mechanism of financial sanctions in the Securities Law explicitly states that “the administrative enforcement mechanism proposed is designed to target the violations where the required mens rea needed to prove they have been committed is at most negligence” (Bill for Increased Efficiency in Securities Enforcement (Legislative Amendments) 2010, Bills 489, 440.) Our matter, as mentioned, is concerned with an offense requiring intent, and it seems here that the proper means of enforcement was not administrative enforcement, even if this had been available at the time the offense was committed. This must therefore be rejected as a basis for reducing the sentence.

110.I must note that I am sorry for Madar – a young man, and as I understand, talented, who held a senior position in important companies in our economy and who mis-stepped by being overly eager to reach his goals, to the extent that he reached the boundaries of crime. I do not make light of the difficult implications of his incarceration, and I regret he came to this. But in light of everything discussed, there is no escape from incarceration behind bars. In conclusion, as said, I did not find it fit to intervene in the District Court’s decision in terms of Madar’s sentence.

The Appeals Regarding The Companies

111.The charges against Ofer Investments, Ofer Development and Melisron were submitted under organ theory. Ofer Investments and Ofer Development were indicted – and convicted – for committing the offense of manipulation and offense of inducement through Madar, as an organ of the companies (the indictment also touched on the offenses having been committed through Levi, and another organ, but as mentioned he was acquitted), whereas Melisron was indicted – and acquitted – of committing the offense of manipulation, offense of inducement and offenses of reporting, through Levi and Madar. We will now address the relevant legal framework and then the two appeals – by Ofer Development and Ofer Investments against the State (CrimA 1899/14) and by the State against Melisron (99/14). I will say at the outset that I have reached a conclusion that the appeals by Ofer Development and Ofer Investments should be rejected, whereas the State’s appeal against Melisron should be accepted.

The Legal Framework – Organ Theory

112.A corporation does not operate by itself in the “physical” sense. It – the corporation, an abstract legal entity created by the law – does not decide on investments, does not actually sign reports, does not hire or fire employees and does not take any action reserved to humans, even if these are legally associated with it. For this reason, it has employees and people who operate on its behalf, whether they are senior or not, who on a daily basis execute a variety of actions which are primarily meant, ordinarily, to increase the corporation’s profits (section 11 of the Companies Law, 1999). Additionally, in the words of then Justice Barak: “A corporation has no natural existence. A person has a natural existence. There is no corporation without law, but there is no law without people. People are a prerequisite for the law, and the law is a prerequisite for the corporation”. (CrimA 3027/90, Modi’im Company Construction and Development Inc. v. The State of Israel, IsrSC 45(4) 364, 381 (1991) (hereinafter: “the Modi’im Case”); see also CrimA 4670/03, I.M.S. Investments Inc. v. Klal (Israel) Inc., para. 11 of President Barak’s opinion (2006); O. Haviv-Segal , chapter 3(b) (2007) (hereinafter: Haviv-Segal)).

113.When an individual takes a particular action in the course of their role in a corporation, there is a range of situations where the commission of the action by him justifies imposing personal liability, as opposed to vicarious liability, on the corporation itself (Y. Gross, 121 (4th edition, 2007)). This is the source of the organ theory (which sadly also has no Hebrew name) which “presents the organ as the ‘human face’ of the corporation and sees them both as one ‘combined entity’ meant to provide the corporation with human character that enables imposing on it – as a corporation – personal criminal liability” (CrimA 7399/95, Nehoshtan Elevator Industries Inc. v. The State of Israel, IsrSC 52(2) 105, 124 (Justice Kedmi) (1998) (Hereinafter: “the Nehoshtan Case”); see also CC 230/80, Pneidar, Investments Development and Construction Company Inc. v. David Kastro, IsrSC 35(2) 713, 726 (1981)). A primary goal in imposing liability under the organ theory is deterring the corporation and corporations like it, so that going forward they would prevent further offenses by creating supervision mechanisms that would be able to prevent, in advance, situations which lead to criminal behavior:

“When shareholders opt to incorporate as a company, and when they act to increase the scope of the company’s activity, then they create an organizational structure vulnerable to certain legal violations, when the organizational structure challenges law enforcement authorities and prevents them from being able to properly enforce legal norms. Therefore, there is a normative consideration as well that guides those shareholders who start the corporation and enjoy its existence. They are required to ensure that they each follow the law’s provisions. They must create internal supervision mechanism that may ensure the prevention of corporate crime and ensure that the law is obeyed by the organs who operate within the corporation” (Haviv-Segal, chapter 2, section 4.c; see also Hamdani, Transactions between Interest Holders and Corporate Liability for Securities Fraud, Mehkarei Mihspat 23 769, 772-74 (2007)).

As for the status of a corporation – a modern legal creation – in Jewish law, see Rabbi Sinai Levi, An Incorporated Company’s Liability to a Third Party, Tchumin 26 (2006), 362 and the sources therein. The author points to (p. 364) the difficulty in applying Jewish agency law, among others because of the rule that “there is no agent in a crime” (Bavli Kidushin 42, 2; and see Mishna Bava Kama 6, 4), it is therefore preferable to see this as “the law of the kingdom shall be the prevailing law,” see also Dr. M. Vigoda (with H.Y. Tzafri) Agency (1984) 384 (note 295). The rationale for “there is no agent in a crime” (Bavli Kidushin, Id.) is that “the words of the Rabbi (G-d – Rubinstein) and the words of the student are the words of those who hear” and thus the agent cannot take upon himself the commitment of a crime. Though our case is different, as a corporation did not instruct the agents to commit the crime, but rather their actions are seen as its long arm.

114.This is true both for civil law and for criminal law (the Modi’im case, p. 379-80; CrimA 7130/01; Solel Boneh Construction and Infrastructure Inc. v. Yigal Tanami, para 19 of Justice Tirkle’s opinion (2003); Haviv-Segal, chapter 3(b)). As for the criminal aspect, which is relevant to our case, though it is essentially a creature of the case law, it has been anchored in Amendment 39 of the Penal Law from 1994, in section 23(a)(2), which states as follows:

“(a) a corporation will be held criminally liable –

(b) for an offense that requires proving a criminal intent or negligence, if, under the circumstances and in light of one’s position, authority and responsibility for managing the corporation’s affairs, the act that constitutes the offense and the criminal intent or negligence must be seen as the act, intent or negligence of the corporation.”

As it was held in the case law, this section does not narrow the application of the organ theory as it was developed in the case law, but anchors it in primary legislation (CrimA 2560/08, The State of Israel – The Antitrust Authority v. Yaron Vohl, para 78 (2009) (hereinafter: “the Vohl Case”).

115.At the center of the organ theory stands, of course, the organ – that high ranking long arm of the corporation. In the case law and the scholarship, two alternative tests are common for inquiring whether a certain person is to be considered an organ in a particular corporation. The first test, the organizational test, examines whether the individual is an organ according to their formal role and position in the corporation. Thus, the case law recognized “the general assembly of shareholders, members of the board of directors, the CEO and the COO” as clear organs of the corporation (the Modi’im case, p. 383; see also Groos, p. 123-24; M. Kremnitzer and H Ganaim, A Corporation’s Criminal Responsibility, , 87 (2003) (hereinafter: Kremnitzer and Ganaim)).

The second test, the functional test, asks whether the function committed by the particular officer warrants seeing their acts as the acts of the corporation “whatever the hierarchical status of the corporate actor may be” (Gross, p. 124; see also the Modi’im case p. 383; CC 8133/03, Yitzhak v. Lotem Marketing Inc., IsrSc 59(3) 66, 84 (2004); CrimA 3891/04, Arad Investments and Industry Development Inc. v. The State of Israel, IsrSC 60(1) 294, 349 (hereinafter: “the Arad Case”); Kremnitzer and Ganaim, p. 87-88.

116.Both tests, which are rooted in common sense, do not exhaust the list of officers who may be considered as organs, and for a good reason:

“Indeed, out of the necessity of reality, the terms organs and other senior officers of a corporation are somewhat amorphous and do not form an accurate and unified framework for discussion. But their logic is clear. They are designed to encompass all the decision-making persons and high institutions of a legal body, who are responsible for shaping its policy and executing most of its actions internally and externally, regardless of their position titles or jobs. The list of offices and positions is not identical in every corporation and may somewhat change according to the organization’s structure, the nature of its activity and the division of powers and authorities of the examined body. Considerations of legal policy may often take part in establishing the framework, and naturally may prevail in borderline cases” (A. Lederman, Criminal Responsibility of Organs and Other High Officers of a Corporation, Plilim – Vol 5 101,107 (1996); see also Kremnitzer and Ganaim, p. 89).

117.Melisron argues that the organizational test and the functional test must be combined as cumulative tests. In other words, a corporation could be found responsible under the organ theory only when one committed the offense as a senior officer of a corporation and in line with the function they fill (para. 11 of the main arguments). This argument must be rejected. First, the case law clearly points out that these are alternative tests:

“A body or a senior officer of the corporation (the general assembly of shareholders, members of the board of directors, the CEO and the CFO) will certainly be an organ of the corporation. But an officer who is not a senior officer may also be considered an organ of the corporation, and this when, according to the articles of incorporation or under another legal source, we may see their actions and mindsets as those of the corporation itself” (the Modi’im case, p. 383, then Justice Barak; emphasis added – Rubinstein; see also Gross, p. 123-124).

Second, with all due respect, I am hard pressed to find the logic in this argument – would it make any sense, for example, for the corporation’s CEO, who acts in the course of their position in the company and in the best interest of the company, not to represent the company in his actions? In such a situation it is hard to meet the requirement to prove that the function the CEO fills justifies seeing his activity as that of the corporation – something that is the outcome of their very role in the corporation. At most, it may be said that when the corporation wishes to distance itself from the actions of a person who served as a senior officer, who has acted in the course of his role in the corporation and did not act with the intent of harming the corporation – it would carry the burden of showing they did not represent it in their actions, as “there is no agent in a crime”, and this is a heavy burden. Still, I will emphasize that a CEO, for example, is not similarly situated to a “professional manager” or a “regional manager” and the like whose title does not necessarily point to their being senior officers (see CrimA 16/08, The State of Israel v. Best Buy, para. 15 (2009)). In such cases, there is room to examine the function filled by the specific officer on a case by case basis. In other words, there are organs who, for purposes of the matter, are one and the same with the corporation, and there are officers whose actions must be specifically examined.

The fact that these are alternative tests is emphasized particularly in terms of the functional test. As noted, this test attaches the individual’s actions to the corporation in light of the function they hold within the corporation, “whatever the hierarchical status of the corporate actor may be” (Gross, p. 124, emphasis added – Rubinstein). Therefore, absolving a corporation from criminal responsibility solely because the individual, who committed the act on behalf of the corporation and for its benefit, did so without being formally placed in the corporate hierarchy is illogical and contradicts the purposes at the basis of the organ theory.

118.All this as for the identity of the organ, but it is all insufficient. In order to find a corporation responsible under the organ theory for actions taken by the corporation’s organ, courts should find that it is appropriate to impose responsibility on the corporation for the concrete actions of the organ (the Modi’im case, p. 383-84). This is a question of legal policy, and over the years the case law has developed the following tests: first, did the legislation not intend to exclude the corporation’s responsibility from its scope (Modi’im, p. 385); second, was the organ’s action taken in the course of fulfilling his duties (Kremnitzer and Ganaim, p. 97-98); and third, was the action to the benefit of the corporation, or at the very least not aimed against it (Arad, para. 66; CrimA 5734/91, The State of Israel v. Leumi and Partners Investment Bank Inc., IsrSC 49(2) 4, 28-29 (1995) (hereinafter: “the Leumi Case”)).

119.As for the first test, as we know, section 4 of the Interpretation Law, 1981 stipulates that as a rule, anywhere Israeli law refers to a “person”, the law or regulations also apply to a corporation. There is no dispute that this is also true for imposing criminal responsibility, and that this is long enshrined in our legal system in these strong words by our predecessors: “in offenses as those before us, not only does this seem strange and undesirable, but should we consider the legislative intent, if we were to allow incorporated bodies qua incorporated bodies to say: ‘the law applies only to that whose hand took part in the act, and we escaped.’” (HCJ 125/50, Beit HaShita Circles Group v. The Chairman and Members of the Court for Prevention of Stealing Goals and Scalping in Haifa, IsrSC 5 113, 139 (President Zmorah) (1950); and see also the Modi’im case, p. 384-85; CrimA 4855/02, The State of Israel v. Borovitz, IsrSC 59(6) 776, 862 (2005)).

However, when it comes to offenses of a “human” nature, such as bigamy, rape and the like, it has been noted that there is no place to apply the organ theory and attribute the conduct and criminal intent of the organ to the corporation (the Modi’in case, p. 385; Lederman, p. 103), and common sense supports these examples. But there may be different cases. A review of the jurisprudence of this Court reveals that so far no use has been made of this test as a means to entirely negate the application of organ theory, and the discussion – insofar that there has been any discussion – has been merely theoretical (the Modi’im case, p. 385). Thus, for example, even in the context of the offense of negligent manslaughter, which arguably has a “human” nature, it was found that the corporation should be held criminally responsible for violating the Workplace Safety Ordinance (New Version), 1970 and the regulations under it (LCrimA 8174/05, Doron v. The State of Israel (2005); and for in depth discussion of that same case see CrimC (Jer) 1267/03, The State of Israel v. John Doe, para. 4(a) (2004)). I will add that, as pointed out by Kremnitzer and Ganaim, it is highly doubtful whether it is appropriate to set blanket rules, and any case must be considered on its merits (Kremnitzer and Ganaim, p. 94-95).

120.As for the second test, the question whether the organ acted in the course of their position is not necessarily a simple one. On one extreme, it is obvious that an activity of a clear personal nature, which the organ conducted out of work hours and out of the workplace, is unlikely to fall under the course of their position. On the other extreme, it is likely that activities that the organ conducted and are inherently related to their position and were executed under instructions from his managers would come under activity within the course of the position.

In the range between the two ends of the spectrum there might be many cases. However, it seems that the approach taken by the case law, and in my view rightly so, is that the range of situations that may come under “in the course of the position” should be broadly interpreted. For example, it was held that when the organ commits the criminal activity on behalf of the corporation but in a manner that was seemingly beyond the scope of the authorization he received, this may not serve as a defense for the corporation against applying the organ theory and imposing responsibility on the organization for the organ’s actions (the Nehoshtan case, p. 122-123; the Leumi case, p. 26-27). Even when the board of directors of the corporation opposed a move made by the organ, the corporation was found criminally responsible for his actions (the Vohl case, para. 78). Simply put, the test is whether the organ generally acted as a “corporation person” rather than a private individual, and should the answer be in the affirmative, this test has been met (Nehoshtan, p. 122-123). Analogously, in administrative law, at times an estoppel is created when one relies in good faith on an administrative authority even when the latter has acted outside its authority (Daphne Barak-Erez, Administrative Law A 153 (2010), AA 7275/10, The Special Committee Under The Disengagement Plan Execution Law v. Amiram Shaked, para. 24 and the sources there (2011).

121.The third test is essentially a subset of the second test. The case law held in this context that the activity that the organ committed intentionally against the interests of the corporation would not trigger the corporation’s responsibility, since in such a case the organ did not act as an organ but as a private individual. Thus, his conduct should not be attributed to the corporation. As noted by Kremnitzer and Ganaim, a primary justification for imposing responsibility on the corporation for the individual’s actions is that the individual acted to benefit the corporation and therefore, in acting against the corporation it would not be justified to impose responsibility on the corporation for those actions. Thus, for instance, when it was found that the manager of the company made a false statement in the corporate documents in order to produce profits to someone other than the company, it was held that the corporation should not be held criminally responsible (CrimA 24/77, “Pan-Lon”, Engineering and Construction Company Inc. v. The State of Israel, IsrSC 33(1) 477, 493-494 (1979)). Furthermore, in a (civil) case where the directors embezzled funds from the bank where they served as directors, it was held that the bank could not be attributed the directors’ awareness of the embezzlement (CC 7276/07, The Official Receiver Acting as Dissolver of North America Bank Inc. v. Assurance General De France, para. 31 of Justice Melcer’s opinion (2012)). In contrast, when it was found that the organ operated both for the benefit of the corporation and for his own personal benefit and that of the conglomerate of which he was a part, it was held that this could not mitigate the corporation’s criminal responsibility for his actions (the Leumi case, p. 28.) And now to our matter.

CrimA 1899/14 – Ofer Investments and Ofer Development v. The State

122.As noted, Ofer Development and Ofer Investments challenge the District Court’s holding that they should be convicted, under the organ theory, for Madar’s actions. Ofer Investments argues, as mentioned, that since it is a sister company of Melisron it did not at all benefit from Madar’s activity. Their argument is because to the extent that Ofer Investments profited from the increase in the price as a result of the manipulation and their holdings in Melisron – this profit was to begin with lower than the loss it took because the bonds were purchased at an inflated price. Additionally, Ofer Development did not hold any share of Melisron and thus was actually harmed as a result of such activity. On the other hand, Ofer Investments argues that Ofer Developments was the one to make the transaction and thus Ofer Investments should not be found responsible in the matter. Additionally, it was argued that the District Court effectively lifted the corporate veil between the two companies and attributed the wrongdoings of one to the other, without having presented any rationale for doing so.

123.The many testimonies reveal that the decision to purchase series D bonds was made by Ofer Investments, however due to tax planning it was decided to conduct the transaction through Ofer Development (p. 644, l. 28-32 (Levi’s testimony); p. 744, l. 26-30 (Madar’s testimony); p. 146, l. 4-16 (Yaacovi’s testimony)). Madar testified that though the investment was actually made by Ofer Development, Ofer Investments was at the center of the decision to invest:

“The purpose of Ofer Investments’ investment was to invest in series D bonds… The opportunity presented itself, it was a good investment, and we took advantage of it.” (Record of hearing dated January 16, 2013, p. 731, l. 16-17).

And in addition:

“… at that point where I had Melisron’s interest in mind, and this god forbid, god forbid it did not conflict with Ofer Investments’ interests. It fit Ofer Investments, the activity of Ofer Investments.” (Record of hearing dated January 16, 2013, p. 757, l. 28-30).

124.Therefore, it is not necessary to address the appellants’ claims regarding the lifting of the corporate veil in the criminal law. This is because, in effect, the offenses were committed as a joint commitment of sorts; each of the companies played a separate and independent role in the offenses – as said, Ofer Investments was the one to decide upon the investment, and Ofer Development was the one to actually make the investment (and as we will see below, it seems Melisron was the one to benefit from it). Therefore, each of the companies was effectively separately and independently responsible for the offenses committed by Madar, and there is no need to discuss their conviction together as a conglomerate. Similar things were said in this context by President Barak in Tempo, addressing the District Court’s opinion in that matter:

“In finding the appellants 1-2 responsible, the court did not find it fitting to separate them, although the purchase of ‘Tempo Beer’ bonds was made by ‘Tempo Plastic’ and although the prospectus – and its lack of disclosure – was published by ‘Tempo Beer’ rather than ‘Tempo Plastic.’ The court held so because the two companies designed together – through their organs – the entire plan of purchasing ‘Tempo Beer’ bonds, and executed it jointly.” (The Tempo case, p. 564).

Similar things were held by the United States Supreme Court in United States v. Bestfoods, 524 U.S. 51, 71 (1998) (hereinafter: “the Bestfoods Case”). There, it was held that a mother and daughter companies may be convicted as directly responsible for the offense when the companies operated together as a joint project of sorts. In regard to a conglomerate in the civil law context, see Lahovski Corporations Law: A Single Company and A Conglomerate, 65 (2014); see also Stern Purpose of the Business Corporation, 164 (2009).

125.Furthermore, there is no prospective prohibition against one’s service as a senior officer of two companies connected by ownership, and this is even common in the reality of the economy, and it is generally not controversial:

“[It is a] well established principle that directors and officers holding positions with a parent and its subsidiary can and do ‘change hats’ to represent the two corporations separately, despite their common ownership” (Lusk v. Foxmeyer Health Corp., 192 F. 3d 773, 779 (CA 5 1997).

Still, I believe that in many cases where the officer operates, while serving as an officer in one company, to promote the interests of the other company and factors those into his actions, this may lead to a conclusion that each of the companies is directly responsible for such actions, even if those were seemingly made only by one of them (if, of course, it is found that he is in fact an organ of each of the companies and the matter fulfills the organ theory tests, as discussed above). Having one’s cake and eating it too, and enjoying both worlds cannot be allowed. In other words, taking action for both companies – yes, the responsibility of both – no. This cannot be acceptable here. Things to this effect were said in Bestfoods, for example:

“[A] dual officer or director might depart so far from the norms of parental influence exercised through dual office holding as to serve the parent, even when ostensibly acting on behalf of the subsidiary…” (Id. at p. 71.)

And as said, in our case, this does not constitute lifting the corporate veil between the companies, as the appellants argue, but to indicate that each of them is directly responsible for Madar’s activity, should it be decided to apply the organ theory in our case. Now, we turn to the application of the organ theory itself with regard to Ofer Investments and Ofer Development.

126.As discussed, the first question is whether Madar should be considered an organ of the companies. Levi’s testimony sheds light on Madar’s high position in Ofer Group, including Ofer Investments and Ofer Development:

“Ofer’s management consists of a team, the senior team included Golan Madar, who is the Group’s financial manager, Golan joined the group immediately after I was appointed as CEO in 2003, and serves with us – serves us and with us – to this day. Golan Madar is the Group’s financial manager, is responsible for all the Group’s financial activity.” (Record of hearing dated December 27, 2012, p. 641, l. 31).

And later:

“Golan is the company’s financial manager, and he is number 2 in the organization.” (Record of hearing dated December 27, 2012, p. 641, l. 31).

As noted, according to the organizational structure, the mere senior status of the officer leads to him being considered an organ in the corporation. In our case, it is seemingly undisputed that Madar was the Group’s financial manager, “number 2” in Levi’s words, and this is sufficient to find that he served as an organ in the companies. The companies themselves conceded, at the end of their main arguments, that Madar operated as an organ of both, even if they maintain he was not a senior organ (para. 60.4 of the main arguments).

127.In this regard, the companies argue, among other things, that since Levi was CEO and he was acquitted, there is no place to convict the companies for Madar’s activity as he served at a less senior position. I am afraid this argument should be rejected. It was held in a similar matter:

“There is no dispute that Avraham served as a senior officer in the company. The defense even argues that though he served as a senior officer, Aharon held a higher office than him. This, in my opinion, is immaterial. Organ theory does not mean that a company has a single alter ego, whose actions alone and no one else’s may lead to its responsibility. Even under a narrow approach that recognizes only a few senior people as organs, we accept that there is more than one organ…” (the Leumi case, Justice Strasberg-Cohen, p. 24).

This is suitable for our case. Therefore, even if Levi, who served in a position senior to Madar was acquitted (for reasonable doubt) from the charges against him, this does not mitigate the companies’ responsibility for Madar’s actions, himself an organ in the companies.

128.However, as noted, this is not enough. A criminal conviction of a company under organ theory is first and foremost a question of legal policy – is it appropriate to convict the company, or in our case the companies, for the actions of the organ. Three tests may assist us:

First, did the law not intend to exclude the possibility of convicting the company for the organ’s actions? In our matter, we are concerned with the Securities Law. It seems almost redundant to note that the Securities Law does not exclude the conviction of corporations. As held in Arad, the contrary is true:

“The offense for which Arad was convicted – of including misleading items in the reports and the prospectus published – are offenses under the Securities Law. This Law was designed to direct the financial activity of public corporations while placing direct conduct duties on them. When the Securities Law is violated, using organ theory is thus natural and obvious” (Id., para. 66 of then Justice Rivlin’s opinion).

Second, did Madar act in the course of his duties? Here, too, it seems the answer is simple – clearly, when Madar decided on the purchase of series D bonds, and the manner in which the bonds would be purchased, he did so in his corporate hat, not his personal one. Madar made the investment in Melisron with the knowledge, if not on the initiative, of the CEO of Ofer Investments and Ofer Development (Record of hearing dated December 27, 2012, p. 623, l. 6). The fact that it was not proven that the companies’ CEO or their board instructed Madar to make the investment in manipulative ways, does not mitigate the finding that Madar committed the offenses of which he was accused in the course of his position (the Leumi case, p. 26-27; the Nehushtan case, p. 122-123; the Vohl case, para 78). In addition, it is very difficult to accept the companies’ argument that Madar operated at the time at most as an organ of Ofer Development rather than of Ofer Investments, and therefore Ofer Investments must not be found criminally responsible (para. 55 of the notice of appeal). As mentioned, each of the companies played a role in committing the offense – as an organ in Ofer Investment, Madar took part in the decision to invest; as an organ in Ofer Development, Madar took an active role in the actual investment. Therefore, there is no basis to the claim that Madar did not commit the offenses as an organ in each of the corporations.

Third, was Madar’s activity directed against the companies’ interests? As mentioned, Ofer Investments and Ofer Development argue that Madar’s activities did not benefit them. Ofer Investments argued that although it controls Melisron, the harm it was caused as a result of the bonds’ overpriced purchases outweighs the benefit of the raised prices. Ofer Development argued that since it is merely a sister company of Melisron’s, it only suffered loss as a result of purchasing series D bonds at a higher price than what it would have needed to pay but for the manipulation. I believe that these arguments should be rejected, to the extent that they concern the relationship between Madar and the companies. As the District Court held – and seemingly this is undisputed – Madar did not wish to make personal gains (p. 130 of the verdict) aside from possibly promoting himself as a good financial manager. As for the companies’ argument that Madar’s activity benefited, at most, Melisron, but harmed them – throughout his testimony, Madar insisted that the purpose of the investment was, among others, to benefit Ofer Group, including Ofer Investment and Ofer Developments:

“The purpose of the investments by Ofer Investments was to invest in series D bonds… The opportunity presented itself, it was a good investment, and we took advantage of it.” (Record of hearing dated January 16, 2013, p. 731, l. 16-17).

And later:

“Madar: the goal was to make these investments. The goal was to invest in cash.

Adv. Chen: Whose?

Madar: All along the way. Ofer’s. All along the way that was the basis for all these activities.” (Record of hearing dated January 26, 2013, p. 733, l. 9-6).

Even when Madar admitted he also acted with the intent to benefit Melisron, he emphasized that the investment was consistent with Ofer’s business interests:

“… at that point where I had Melisron’s interest in mind, and this god forbid, god forbid did not conflict with Ofer Investments’ interests. It fit Ofer Investments, the activity of Ofer Investments.” (Record of hearing dated January 16, 2013, p. 757, l. 28-30).

I believe these things should be taken at face value.

129.I will emphasize that in order to find that Madar’s activity was not designed to harm Ofer, if this need be addressed at all, it is unnecessary to discuss the actions’ final outcome, that is – it is unnecessary to find that this activity actually did in effect benefit either of the companies:

“Intention to benefit the corporation is sufficient and the action need not actually benefit it, and even had the outcome been to the contrary, the corporation’s responsibility still exists.” (Leumi, p. 28 of Justice Strasberg-Cohen’s opinion).

I therefore do not see it necessary to discuss the companies’ “score keeping” in terms of the precise profit the Ofer Group enjoyed as a result of Madar’s activity in comparison to the harm caused as a result of purchasing overpriced securities. It is sufficient, as mentioned, that it was proven that Madar acted to benefit Ofer Group, including Ofer Investments and Ofer Development, in order to fulfill the requirements of this test.

130.Indeed, the fact that Madar intended to benefit both Ofer and Melisron with his actions, does not mitigate Ofer’s responsibility. As it was noted in a similar matter:

“Avraham also operated for the benefit of the companies. This is true even if he wished to simultaneously promote his own interests and those of his group.” (Leumi case, p. 29, emphasis added – Rubinstein).

Therefore, Madar’s intention to benefit Melisron is immaterial with regard to the finding that he acted to benefit Ofer Investments and Ofer Development. However, and I will address this further below, I believe this is relevant to the issue of Melisron’s responsibility for Madar’s actions.

131.All of the sub-tests regarding the imposition of responsibility under the organ theory are then met in our case. Additionally, recall that the question whether we should impose criminal responsibility on a corporation for an act committed by its organ is primarily a question of legal policy. In our matter, as the District Court noted, the policy considerations clearly lean toward imposing responsibility on the corporations:

“We are concerned with managing a portfolio of about NIS 150 million. Despite the defendants’ argument that the relevant amounts are negligible for Ofer, it is obvious that when an organ of a company is given ‘free reign’ in managing NIS 150 million (and restricted only by general limits – 20% shares and 80% bonds – which the Board of Directors defined in advance), then this is an activity of the corporation that carries responsibility alongside it. This is not negligible or insignificant activity, which cannot tie the company to any criminal act it involved, but rather a meaningful action, both for Ofer, and certainly from an objective perspective. Even when taking a closer look, we are dealing with the significant amount of about NIS 24 million which was invested in Melisron’s bonds within the expansion of the series in December 2009. From this perspective, too, Madar was authorized, with the knowledge of Levi – the company’s dominant CEO – to invest tens of millions of shekels in bonds of the daughter company Melisron, when nearing the expansion of the series. In other words, in filling the function of the investment activity in Ofer investments, and particularly with regard to the investments in the bonds during the series expansion, it is clear that Madar was the party authorized by the company, who expressed its voice and will” (p. 127 of the verdict).

I do not see it necessary to add to this. Therefore, should my opinion be heard, we will not accept the companies’ appeal against their convictions.

Obiter Dictum – Conviction in a Conglomerate

132.Once it was found that each of the companies was independently responsible for Madar’s actions, under the organ theory, it is unnecessary to decide whether to convict the Ofer Group as a whole. I will note, however, that it is possible that even if it was not found that each of the companies was directly criminally responsible, our matter would have warranted examining both companies as if they were one company, and establishing their responsibility accordingly. Indeed, as known, “ordinarily, a corporation which chose to facilitate the operation of its business by employment of another corporation as a subsidiary will not be penalized by the judicial determination of liability for the legal obligations of the subsidiary” (Anderson v. Abbot, 321 U.S. 349, 362 (1944)). However, there are situations where it would be appropriate to convict the conglomerate as a group, because the law must trace the nature of the activity rather than the formal structure of incorporation, so that one cannot hide wrongdoings behind the corporate veil as an artificial shield:

“The inherent power of the Commonwealth to prosecute those who violate the law, whether they be individuals or corporations, dictates that such offenders should not be permitted to insulate themselves from criminal prosecution by shielding themselves behind instrumentalities which they promulgate to conceal their criminal acts. This is especially true of large endocratic corporations, which are structured to enable themselves to create a flow of authority from the upper echelons of directors and officers to lower ranks of corporate executives. Such a structure makes the responsibility for a criminal act more easily susceptible to concealment. Even greater clouding of responsibility by a corporate principle takes place where a corporation principal creates subsidiaries and business trusts to carry out its everyday administration and business operations. We find it appalling that such a corporate structure would be allowed to shield those corporate entities which directly or indirectly receive the monetary benefit of criminal activity and at the same time avoid the sanctions which may be imposed upon those corporate employees who commit the actual criminal act” (Commonwealth v Beneficial Finance Co., 275 N.E.2d 33, 94 (Mass 1971) cert. denied 407 U.S. 914 (1972) (Hereinafter: “the Beneficial case”).

And so, for example, it has been established in American law that conglomerates should be criminally convicted as one when one of the companies completely or almost completely controls the daughter company; when the senior officers of the companies are the same people; when the companies consider themselves to be one; and when the daughter company was essentially run as a department in the parent company (the Beneficial case; Garett v. Southern Railway Company, 173 F. Supp. 915 (1959); Richard S. Gruner Corporate Criminal Liability and Prevention, s. 5.02 (2004)). It is clear that the existence of each of these indications cannot lead to a finding that the companies operated, at least insofar as the concrete offense is concerned, as if they were one, but it should be examined whether the totality of circumstances indicates so. Here, too, it is ultimately a question of normative legal policy:

“Because society recognizes the benefits of allowing persons and organizations to limit their business risks... sound public policy dictates that imposition of alter ego liability be approached with caution... Nevertheless, it would be unjust to permit those who control companies to treat them as a single or a unitary enterprise and then assert their... separateness in order to commit frauds and other misdeeds with impunity” (Las Palmas Associates v. Las Palmas Center Associates 235 Cal.App.3d 1220, 1249 (1991) see also Beneficial, p. 289).

As we have said – one cannot hold the stick at both ends and enjoy both worlds according to changing considerations of convenience.

133.And in our case – from the way the companies’ arguments were made, one could think that we are dealing with two stranger companies – as if Ofer Investments’ CEO is not Ofer Development’s CEO; as if Ofer Investments’ financial manager is not the same as Ofer Development’s; and as if Ofer Investments does not fully own Ofer Development. In addition to these initial given circumstances, the different testimonies heard by the court reveal that, on its face, the companies operated – at least to the extent that our matter is concerned – as one. As Levi noted in his testimony:

“In reality, when we look at how this whole mechanism is managed, all the daughter companies are fully transparent as if there are no companies, we view them with full transparency directly toward the assets, there is no significance but for the aspects of accounting – that they must have different balances – or for the aspects of taxation – that they have separate reports. But from a perspective, from a business perspective, we consider this as full transparency as if it is one company… from a management perspective, too, Ofer Investments’ leadership manages all the companies under it”. (Record of hearing dated December 27, 2012, p. 589, l. 13-22).

And additionally:

“As far as we are concerned, Ofer Investments and Ofer Development does not mean anything. It doesn’t matter who the buyer is, because to us if Ofer Development made the purchase, it is as if Ofer Investments made it”. (Record of hearing, dated December 27, 2012, p. 638, l. 25-26).

Additionally, throughout Madar’s entire testimony, and we already discussed parts of it above, Madar addressed the interests of Ofer Group, without distinguishing between Ofer Investments and Ofer Development (see for instance the record of hearing dated January 26, 2013, p. 731, l. 16-17; p. 733, l. 6-9; p. 757, l. 28-30).

Ms. Yochi Yaacovi, who served as an accountant and Vice President of finances in Ofer Investments, said similar things, too:

“Ofer Investments and Ofer Development operate together because all the private companies are managed by the leadership together. There is no difference.” (Record of hearing dated September 11, 2012, p. 121, l. 1-2).

And later, when she was asked about the investment policy of Ofer Development, she replied:

“Ofer Development itself didn’t have a policy, there was a policy in the private company within Ofer Investments…” (Record of hearing dated September 11, 2012, p. 121, l. 24).

Mr. Mordechai Meir, who served as a director of Ofer Investments, similarly noted:

“Adv. Negev: …when we’re talking about Ofer Investments, it is a private company, right?

Mr. Meir: Yes.

Adv. Negev: And it has a pretty large number of daughter companies, and when we talk about Ofer Investments, about its investments, its activity and so on, is it true that you, as a board of directors, viewed it as one entity, not as each of the daughter companies on its own?

Mr. Meir: Certainly.

Adv. Negev: So it does not matter if it operates through Ofer Development or another Ofer, you saw it as one entity?

Mr. Meir: Correct.”

(Record of hearing dated September 13, 2012, p. 166, l. 3-11).

In other words, we are concerned with two companies who are closely tied by ownership, and are almost identical with regard to their officers. Ofer Investments served as a “headquarters” and decided upon the investment, while the investment was in fact made with Ofer Development’s funds. It is doubtful whether Ofer Development had any independent decision making mechanism that did not rely on Ofer Investments. As reflected in the testimonies of the two companies’ senior officers, even they did not distinguish between the two companies and regarded them as one. Therefore, on its face, at least with regard to the investment at hand here, the two companies acted as one entity, and thus even if we had not found that each of them should be held specifically responsible for Madar’s actions as an organ in each of the companies, it is doubtful that we should have accepted the companies’ request that “this honorable Court view each of them separately as related to the acquittal of the first defendant, the rejection of the theory about the influence plan, the timing of the offense and the exception to the organ theory” (para. 44 of the notice of appeal). However, as noted, these things are said beyond the necessary scope, as it was found that each of the companies is in itself responsible for the actions of its organ.

Ofer Investments and Ofer Development’s Sentence and the Appeal against It

134.The court considered the State’s arguments that the fine imposed on the companies should be heavy in light of their substantial trading volume and the need for a severe sentence that would deter them in the future. On the other hand, the court considered the companies’ argument that, until today, the fine for such offenses was set at only NIS 140,000-150,000, and when fines exceeded these sums, it was under much more serious circumstances. The companies also argued that they took upon themselves a restrictive corporate regime beyond what is required of them because they are not traded in the stock exchange, and that their conviction relied on the organ theory, and the organ committing the offense was not the most senior, and it was not proven who of the senior officers instructed him to do so. Finally, it was noted that Ofer Investments must be distinguished from Ofer Development for these purposes, as Ofer Development is the one who made the actual investment.

135.The court held that the companies’ argument that they should be distinguished from each other is to be rejected, as noted in the verdict, because such distinction is artificial. As to the amount of the fine, it was noted that under section 54 of the Law, following Amendment 45 dated January 27, 2011, had the offenses been committed today it would have been possible to impose a fine of NIS 22,600,000 on the two companies for the two offenses. Therefore, even if at the time the offenses were committed section 54 permitted imposing a fine of only up to NIS 1,100,000 on each company for each offense, Amendment 45 reflects the Legislature’s desire to increase the level of sentencing for these offenses, and this should be taken into account when deciding the fine in our case. The court therefore noted that the proper fine in our case is the maximum fine of NIS 1,100,000 for each company, however, separate fines should not be imposed for the manipulation offense and the inducement offense as both were a result of the same action. It was also noted that had the court been authorized to rule under the Amendment to the Law, it would have set the amount of the fine between NIS 2-4 million for each company, given their significant trading volume and the fact that they did not adequately supervise Madar. Rather, they allowed him to do as he wished with millions of shekels, and did not instruct him against making transactions that belonged entirely to the same conglomerate.

136.In their appeal, the companies argue that the court erred by imposing the maximum fine on Ofer Investments and Ofer Development without examining the appropriate sentencing range. It was additionally argued that the mere fact that the Securities Law was amended to allow imposing a higher fine is not in itself a reason to impose the maximum fine on the appellants. It was then argued that examining the fines previously imposed in similar cases, including more serious ones, points to the fine here being extremely unusual in its severity.

137.On the other hand, the Respondent argues that although the District Court did not explicitly mention the sentence range appropriate in this case, it did substantively consider the factors detailed in the amendment to the Penal Law that influence this range. Thus, for instance, the court correctly attributed a significant weight to the companies’ financial strength, and the fact that a fine lower than that imposed would not meaningfully deter the companies from committing similar offenses in the future. This consideration is consistent with section 40H of the Penal Law, which stipulates that when imposing the appropriate sentence, the court must consider the defendant’s financial circumstances. Therefore, there is no room to intervene in the fines imposed on the companies.

138.I believe there is no room to intervene in the amounts of the fines that were imposed on the companies. As opposed to Ofer’s arguments, I believe there is great significance to the fact that the Legislature considered the issue, and that today – as the District Court mentioned – it is possible to impose in a case such as this a much higher fine (though, of course, the new legislation should not be applied retroactively). Section 40H of the Penal Law states that while imposing a fine on a criminal defendant, the court must consider the defendant’s “financial situation, in order to establish the appropriate range of fine.” I believe this is even more apt insofar as the conviction of corporations is concerned, and this was explicitly taken into account in the creation of the financial sanctions mechanisms in the provisions of financial legislation (see section 52.17(b) of the Securities Law; section 50D of the Antitrust Law 1988, and section B(8) of G 2/12 – The Considerations of the Antitrust Authority in Setting the Amount of a Financial Sanction, dated July 24, 2012). And recall that a conviction under the organ theory was designed first and foremost to deter, whether the specific corporation or a corporation like it, from committing similar acts in the future, and therefore deterrence considerations must be given substantial weight in setting the fine amount. This is also consistent with section 40F and section 40G of the Penal Law, which address considerations of specific and general deterrence, respectively, when imposing a sentence.

139.In our case, as Ofer Group presents itself, it is “one of the leading business groups in the Israeli economy” (see the company’s website: http://www.oferinvest.com/ofer-investments/group/). Ofer’s financial strength can also be inferred from Levi’s testimony, which noted that at the time relevant to the commission of the offenses, the insurance system of the Group included NIS 6 billion in assets, and at the time of the testimony reached NIS 15 Billion. The Group’s investment portfolio stood at the time at NIS 150 million (Record of hearing dated December 27, 2012, p. 594, l. 3-7). Therefore, in our case, imposing a fine lower than the maximum fine would not sufficiently deter the companies, or companies like it, from committing similar offenses in the future, and it would be inconsistent with the trend, which we pointed to above, of increasing the level of sentencing in these offenses. Additionally, as the District Court noted and I must agree, had the new amendment to the Law applied here, it would have been appropriate to impose a much higher fine upon each of the companies.

CrimA 99/10 – The State v. Melisron

140.In this appeal, the State challenges Melisron’s acquittal. It was agued that the court’s finding that Madar committed the offenses of manipulation and inducement, as well as the reporting offenses, outside of his role at Melisron was incorrect. This, because Madar was an organ of Melisron while conducting this activity, because the activity was designed to benefit the company and did in fact benefit it. Therefore, according to the principles on which organ theory is based, as we discussed above, it is both desirable and necessary to convict Melisron for Madar’s actions.

141.According to the legal framework of the organ theory, we will now examine whether the main aspects of the doctrine apply to Melisron. The preliminary question is of course whether Madar can be seen as an organ of Melisron for our purposes. The District Court refrained from making such explicit findings. However, according to the State, Madar’s sentence reveals that his role in Melisron was significant – as its financial manager, signatory and participant in board meetings (p. 6 of the sentence). The appellant maintains these claims are unfounded because Madar did not serve as an organ of Melisron, rather as merely an external service provider (para. 13 of the main arguments). Alternatively, even if the Court was to find that Madar did in fact serve as an organ, he did not commit the offenses attributed to Melisron in the course of his duties there, but rather – as noted by the District Court – in the course of his role in Ofer Investments and Ofer Development.

142.I will first note, that in my opinion, Melisron’s argument that Mader should not be considered an organ of the company merely because he did not serve as a financial manager in the company, but externally as a “financial services provider” should be rejected. This is because the law is not satisfied by how things look on their face, but instead examines them substantively. This is necessary in order to realize the law’s most basic purpose – justice (on the tension between form and substance, see A Barak, 196-197 (1992)). This was established in this Court in different areas of the law (see e.g. HCJ 107/59, Itzhak Mey-Dan v. The Local Committee for Construction and Planning of the City of Tel Aviv Yaffo, IsrSC 14, 800, 808 (1960) (construction and planning laws); CA 6926/93, Mispanot Israel Inc. v. The Electric Company Inc., IsrSC 48(3) 749, 771-72 (1994) (administrative law); CA 455/89, Colombo, Food and Drink Inc. v. Trade Bank Inc., IsrSC 45(5) 490, 495 (1991) (property law); CA 345/87, Hughes Aircraft Company v. The State of Israel, IsrSC 44(4) 45, 106 (1990) (patent law); CFH 3962/93, Shlomo Minz v. Tax Assessor of Large Factories, IsrSC 50(4) 817, 831 (1996) (tax law); CrimFH 188/94, The State of Israel v. Abutbul, IsrSC 51(1) 1, 10 (1996) (evidence law); and LCrimA 7946/09, New Makefet Pension and Benefits Management v. Yael Anuch, para. 14 (2012) (insurance law). Corporate law, which is the relevant area of law to our case, is no different, and as Gross notes: “the common approach in corporate law emphasizes the nature of the organ’s activity rather than the formal appointment” (Id., p. 124).

143.Indeed, Melisron does not argue that its financial matters were not managed by Madar, and even refers to the District Court’s finding that Madar managed the finances with Levi (para. 19 of the main arguments). Mardar himself testified that he did actually manage Melisron’s finances:

“When I need to operate for Melisron, I wear the hat of Melisron’s financial manager, and work towards Melisron’s goals.” (Record of hearing dated January 16, 2013, p. 731, l. 25-27).

And this is also supported by Levi’s testimony:

“I said, and I am saying, I was also the strong person in Melisron, and in Ofer too, I said Golan managed Ofer’s finances and Melisron’s finances.” (Record of hearing dated December 27, 2012, p. 647, l. 20-21).

Melisron’s claims, then, relies on the technical aspect of how Madar provided his services to the company. This is particularly puzzling because this is not an “external service provider” who is foreign to Melisorn, but rather Ofer Group, who, as noted, controls Melisron. Therefore, even if only for this reason, Melisron’s argument that Madar must not be considered an organ of the company should be rejected.

144.In addition, I believe that the function Madar filled in Melisron indicates that he should be considered an organ of the company in all regards concerning the offenses at hand. As mentioned, and as the District Court ruled, and as undisputed by Melisron, Madar managed Melisron’s financial affairs along with Levi. Additionally, Madar participated in the specific Board of Directors meeting where the offering of the relevant bonds was decided (Prosecution exhibit 15: minutes of meeting dated November 4, 2009), as well as played an active role in promoting the offering, including reporting to the stock exchange (see Prosecution exhibits 19 and 21, email messages in which Madar approves the report to Melisron’s attorney, and his testimony dated January 16, 2013, p. 740-41, where he detailed his part in the offering). As a result, examining the nature of Madar’s role in Melisron, to the extent this case is concerned, demonstrates that he should be seen as an organ of the company.

145.Recall that under organ theory, in order to impose criminal liability upon Melisron, it is insufficient that Madar operated as an organ. In our case, the core of the issue is whether it can be shown that Madar committed the offenses, particularly the offenses of manipulation and inducement, within the course of his duties in Melisron and not just in the course of his duties in Ofer. The District Court found that “the criminal activity at the center of the inducement was committed in the course of bond purchases that Ofer made and in which Melisron had no part (and as a result neither did Madar, as an employee or organ of Melisron (para. 335 of the verdict). Indeed, there is no dispute that the funds relevant to the offense were Ofer Development’s funds. However, I believe – with all due respect – that this finding by the District Court does not take into account the circumstances of this particular case: Madar operated as the financial Manager of both Melisron and Ofer. As noted, he did not see a conflict of interests in his work for both companies, and he mentioned that while committing the offense “he had Melisron’s goals in mind” (Record of hearing, p. 732, l. 29-32). As we discussed above in regard to Ofer, when one holds office in two companies that are related by ownership, and operates within one company in order to benefit the other, this can tip the scales in favor of imposing criminal responsibility on both companies, directly, as a result of that person’s activity as an officer in both companies. In addition, the case law tends to interpret this requirement – which is designed to distinguish one’s activities in their private hat from their activities in their corporate hat – broadly, and it is undisputed that Madar’s activity was committed in the latter.

146.Further, it is certainly impossible to say that Madar did not operate in Melisoron’s interest. Quite the contrary, as mentioned above, Madar noted that in his activities he meant to benefit Melisron, and indeed he did. While his activities could benefit Ofer indirectly (as a result of Ofer’s ownership of Melisron, and the rise in the value of its bonds), Melisron was the primary beneficiary of his actions, since the result of Madar’s support of the price meant the rise of Melisron’s bonds price. See Bahir’s opinion, according to which, any rise of a single Agora of the series D bonds would have resulted in revenue of NIS 1.46 million to Melisron (section 169 of the opinion). As discussed above, the fact that one operated to benefit the company where they serve as an organ is a subset of the test as to whether they operated within the course of their duties. Thus, once it was found that Madar acted to benefit Melisron it was sufficient to support the finding that he executed the influence plan in the course of his role in Melisron – and therefore convict Melisron under the organ theory.

147.We will mention that a conviction based on the organ theory is a matter of desirable legal policy. We are concerned with a conglomerate, in which one company in the conglomerate (Ofer Investments) decides upon a certain investment, another company (Ofer Development) is the one to actually make the investment, and a third company (Melisron) enjoys the investment. The person who made the investment, in a manner that amounts to a criminal offense, served as an organ in each of the companies and took an active role in the relevant decisions in each of the companies. The other senior officers (Levi and Yaacovi) served in parallel positions in the companies where the relevant decisions were made, and were therefore in a position to supervise the organ’s activities. When putting all of this together, a proper legal policy leads to a conclusion that each of the companies must be convicted for the action of the person who served as an organ in each of them.

148.I will emphasize that this finding applies to both the offenses of manipulation and inducement and the reporting offense. In terms of the manipulation and inducement offenses – the points above speak for themselves, where Madar took part both in Melisron’s decision to expand the series and in Ofer’s decision to purchase series D bonds. With regard to the reporting offenses, I myself do not believe the District Court’s finding that Madar’s position in Melisron does not warrant attributing his actions to the company can stand (paras. 348 and 367 of the verdict). As mentioned, Madar effectively served as Melisron’s financial manager and was an authorized signatory; At the April 5, 2009 Board of Directors meeting he was appointed to set the terms of the prospectus based on which the expansion was executed (Defense exhibit 11), and on November 25, 2009 he emailed Melisron’s lawyer about the report regarding the bonds purchase, where he wrote “Alright with me, if Avi does not have any comments we can issue the report” (Prosecution exhibit 19). As for the shelf report, at the December 2, 2009 Melisron Board of Directors meeting, which – as found – was held after Madar’s fraudulent intent had materialized and where Madar was present, the shelf proposal report was discussed and approved (Prosecution exhibit 33). Therefore, I am afraid that the District Court’s finding that Madar’s position does not justify attributing his conduct to Melisron in this matter should be reversed, and Melisron should be convicted of the reporting offenses.

149.As a side note, as I mentioned with regard to Ofer Investments and Ofer Development, it is possible that here, too, Melisron should have been found criminally responsible by virtue of Ofer’s criminal responsibility (even if we had not found that Madar served as an organ of Melisorn or thought that he did not commit the offense in the course of his duties). At the relevant time, Ofer Investments owned 71% of Melisron’s shares. As mentioned, Levi, who at the time served both as CEO of Ofer Investments and as acting CEO of Melisron, played a role both in the decision to expand the series, as an officer of Melisron, and in the decision to purchase the bonds, as an officer of Ofer Investments. The same is true for Madar, who was charged with both companies’ financial management, and for Yaacovi, who served as financial vice president in Ofer Investments and took care of Melisron’s financial reports (Record of hearing dated September 11, 2012, p. 120, l. 10-11, p. 122, l. 20-21). As mentioned, they all attended the Board of Directors meeting in which Melisron decided to expand the series (see record of hearing dated November 4, 2009, Prosecution exhibit 16). In addition, Levi testified that Melisron was in effect managed by Ofer:

“Ofer Investments also controlled Melisron, and in Melisorn, Melisron did not have its own management. In other words, all the financial management, all the accounting, and essentially managing of the transactions were done through the management of Ofer Investments, which I headed. So from a business perspective, I effectively also managed Melisron.” (Record of hearing dated December 27, 2012, p. 588, l. 21-25).

However, as opposed to Ofer’s matter, I believe that we were not presented with sufficient evidence and testimonies to suggest that the companies operated as one. As said, convicting a conglomerate as a group is the exception rather than the rule. With regard to Ofer, many testimonies were presented to show that the companies were managed, to a great extent, as one, and were treated as such by the senior officers. Similar evidence was not presented with regard to Melisron, and I therefore believe that there was no room to impose criminal responsibility on it as part of Ofer Group’s responsibility as a group. As mentioned, this is said beyond the necessary scope, as Melisron has been found to be directly responsible for Madar’s actions, both with regard to the offenses of manipulation and inducement and to the reporting offenses.

150.To summarize, I believe the State’s appeal should be granted, and that Melisron should be convicted of the offenses for which it was indicted: fraud in regard to securities by means of influencing the fluctuation of the securities’ price – an offense under section 54(a)(2) of the Securities Law; fraud in regard to securities by means of inducement or attempt to induce to purchase securities – an offense under section 54(a)(1) of the Securities Law; violating section 36 of the Securities Law and the Periodic and Immediate Reporting Regulations – an offense under section 53(a)(4) of the Securities Law, and violating section 16(b) of the Securities Law – an offense under section 53(a)(2) of the Securities Law.

151.As for the sentence: in the time relevant to the commission of the offenses, section 53(a) and section 54(a) of the Law stated that the maximum sentence for each of the offenses for which Melisron was convicted is a fine five times the fine set in section 61(a)(4) of the Penal Law, which, as we noted with regard to Ofer, was set at NIS 1,100,000 (5x220,000). As discussed, following Amendment 45 the fine allowed is much higher. As a result, in our case, the maximum sentence that may be imposed on Melisorn is NIS 4,400,000 for the four offenses for which it was convicted. However, as the District Court noted with regard to Ofer and Madar, the offenses were born out of the same activity, and thus, it is inappropriate to impose upon the company more than the maximum fine for committing a single offense.

152.On one hand, it could be said that Melisron’s responsibility is lower compared to Ofer’s, because the purchase activity at the basis of the offense was committed from within Ofer – the funds were Ofer’s funds, and the decision was made by Ofer’s directors. On the other hand, as opposed to Ofer, at the end of the day Melisron was convicted for committing fraud and manipulation and for the reporting offenses that were committed within this company.  This should be taken into account in establishing the severity of the sentence. Melisron is a public company, and according to its financial reports, its income for 2009 – at the time the offense was committed – was NIS 382.2 million (and for 2008 – NIS 283.1 million). Given all the above, and for reasons similar to those discussed regarding Ofer, I believe that the fine to be imposed on Melisron should be identical to that imposed on Ofer Development and Ofer Investments. That is, the maximum fine permitted by the Law at the time relevant to the offenses – NIS 1,100,000. As we mentioned regarding Ofer, any amount lower than this would not deter the company, or others like it, from committing similar offenses in the future.

Conclusion

153.Should my opinion be heard, with regard to Madar, Ofer Invetsments and Ofer Development, we would reject the appeals before us – CrimA 1829/14 and CrimA 1899/14 – and uphold the judgment of the District Court, both for the conviction and for the sentence. On the other hand, we would grant the appeal by the State in CrimA 99/14, and hold that Melisron should be convicted of the offenses of manipulation, inducement and reporting, and impose upon it a fine of NIS 1,100,000.

Madar will report to serve his sentence on December 1, 2015 at the Y.M.R. Nitzan Prison by 10am.

                                                                                    Justice

Justice U. Vogelman:

                  I join the comprehensive opinion by my colleague Justice E. Rubinstein.

                  The question whether the manipulation offense is a result offense does not require determination in our matter (as noted by my colleague) and I leave it, as I do the side note regarding conviction within a conglomerate, for future determination.

                  As for the mens rea of the manipulation offense – I accept my colleague’s conclusion that an intent to artificially influence the price must be proven. Where the defendant’s intent to influence the price by fraudulent means was proven, that is a sufficient infrastructure for a conviction, even if this intent was coupled with a legitimate financial purpose. It is not necessary to prove that the fraudulent intent was the primary purpose, and that the other purpose was secondary.

                  I also join my colleague’s concrete findings regarding each of the defendants, both in terms of the convictions (including accepting the State’s appeal in regard to Melisron) based on the relevant legal framework, and in terms of the sentences. In its sentence, the District Court attributed proper weight to public interest in combating financial offenses in the stock market and to the jurisprudence of this Court, which my colleague also detailed at length. This consideration was balanced with mitigating factors resulting from the particular nature of the case and the people at hand, particularly that of Madar’s, whose lapse is indeed unfortunate. I also believe that there is no reason to intervene in the outcome of this balance between the factors considered in this case.

                                                                                    Justice

 

Justice D. Barak-Erez:

1.I join my colleague’s Justice E. Rubinstein’s comprehensive opinion, and wish to not decide the issues discussed here beyond the necessary scope, and acknowledge that the current scope is too narrow to fully and exhaustively address them. For instance, insofar that the issue of conviction within a conglomerate is concerned, although I believe that there is good reason for the trend my colleague pointed out, I wish not to take a stand as to the conditions and circumstances under which it would be appropriate to do so.

2.I wish to add that in my opinion, the finding that the offense established by section 54(a)(2) of the Securities Law (the “manipulation” offense) is also committed under the circumstances of “mixed purposes” – committing an act in securities in order to influence their price with the additional purpose of making a “good investment” – is understandable, and even obvious. Let us imagine a case where a person who trades in securities is faced with a choice between two avenues of action – influencing the price of a security, an investment which will also yield “legitimate” financial benefits, versus influencing a price of a security, an investment which will not yield any financial benefits, and he opts for the former. Did he not commit an offense? The manipulation offense is designed to prohibit acts in securities in order to influence their value in the market. What is it to us if the person committing the prohibited act thinks that the activity will also financially benefit him or the corporation in which he is employed? The harm to the value protected by this offense – protecting the investing public from artificial changes in the securities price in a manner that distorts their trading – is caused either way. It is easy to understand that there are additional possibilities of completely lawful investments in securities, which may also have financial benefits. These were not made by the person committing the offense because the decision on the investment was joined all along by the intention to also impermissibly influence the prices of the securities. This is, essentially, the distortion caused to the market when securities are traded out of “mixed proposes.” An ordinary decision by an actor in the stock market is based on factoring the financial utility that may result from the investment. This is how the market maintains its efficiency – each security is traded according to “pure” financial considerations. However, in a case of “mixed purposes” there is an illegitimate consideration, which is unlawful, of influencing the value of securities. Of course, this manipulation, which is not visible to other investors, inherently distorts the market (because it introduces “foreign” considerations to the trade) and may mislead investors. These investors may believe that the security achieved a certain price as a result of “pure” financial considerations, whereas in reality, its trade resulted from irrelevant considerations in order to influence its price.

3.By way of analogy, it could be noted that even in other contexts, in and outside criminal law, an activity that is motivated by two purposes (one legitimate and one prohibited), and even a double motive (legitimate and prohibited), may be considered unlawful and prohibited, all according to the purpose at the base of the relevant statute. For instance, let us imagine a situation where a public official appoints people to whom he has close political ties in order to advance the official’s own self interest. The wrongdoing here is not “wiped” only because the official chose good and qualified people in the official’s mind who also happen to be closely tied politically to him. The mere fact that selecting good and qualified people was limited to the relevant political circle seemingly lays the foundation for the conclusion that this is prohibited and wrong conduct. The argument that the appointee is qualified is immaterial. Discrimination law is similar: an employer’s decision to hire a male candidate over a female candidate because he prefers working with men is wrong and prohibited, even if an additional consideration supporting the decision was that the man’s compensation requirements were lower than the woman’s – the mere consideration of the woman’s sex as a “disadvantage” is prohibited (see and compare HCJ 706/94, Ronen v. The Minister of Education and Culture, IsrSC 53(5) 389, 421 (1999)). This is the law applicable here, too, with the necessary changes. The mere fact that the activity in the securities intended to manipulatively influence their price also had, arguably, a legitimate financial reason, does not cure the harm to the protected societal value. As a result, an activity in securities with the intent to influence the market is always wrong. The fact that this intent was coupled with other purposes, and even if these purposes were substantial in the eyes of the perpetrator, they cannot serve as a defense against a criminal conviction. This unequivocal message ought to be internalized by all those acting in the stock market.

 

                                                                                    Justice

Decided according to the opinion of Justice E. Rubinstein.

 

Given today, December 25, 2014.

 

 

Justice                                                 Justice                                                 Justice