Criminal Law

CHESHIN J. giving the judgment of the court. On December 6, 1948, an order nisi was issued by this court calling upon the respondents to appear and show cause why they should not be restrained from placing the petitioner on trial before the Special Tribunal of the Defence Army of Israel on a charge of murder under section 214(b) of the Criminal Code Ordinance. 1936, and section 97 of the Army Code, 1948, and why they should not release the petitioner from custody.

           

2. The facts, as detailed in the affidavit of the petitioner, are not in dispute, and may be summarised shortly as follows:

 

            The petitioner, Shmuel Lahisse, an officer of the rank of first lieutenant, served in the Defence Army of Israel as a Company Commander. On November 12, 1948, he was arrested by order of the prosecutor of "A" Command, and was charged with the murder of a number of persons in the village of Hula, Lebanon, on October 31, 1948, and November 1, 1948.

           

            On December 2, 1948, the petitioner was brought to trial before the Special Tribunal of the Defence Army of Israel sitting in Haifa. After the charge had been read to him, but before he had pleaded to the charge, his counsel submitted that the tribunal had no jurisdiction to consider the offences charged, as it was clear from the information itself that the acts constituting the offence had been carried out beyond the borders of Palestine and, therefore, outside the jurisdiction of the tribunal. The tribunal, by majority decision, dismissed this contention, and counsel for the petitioner requested an adjournment in order to enable them to apply to this court for a ruling on the question of jurisdiction. The tribunal held unanimously, "that there is no justification for acceding to the request of the Defence", but it adjourned the hearing to another date - in its own words - "as an exception and having regard to the unusual matter arising in this case and the serious penalty to which the accused" (the petitioner) "will be liable in the event of his conviction". At the same time the tribunal hinted, in the course of its decision, that ''the Defence is entitled to make use of this delay for the taking of such steps as it sees fit". The accused then petitioned this court and, as above stated, an order nisi was issued.

 

3. Before considering in detail the principal submissions of counsel for the parties we would like to refer, although the matter may not be strictly relevant, to the following point, because it is one that gives rise to much discussion in cases of this nature. The point is this : In section 10 of his petition the petitioner submits that "the decision of the Supreme Court, sitting as the High Court of Justice... binds all the courts in the country, including military tribunals". Mr. Cohn, the State Attorney, who appears on behalf of the respondents, does not deny the soundness of this contention, and the affidavit of the President of the Special Tribunal before whom the charge against the petitioner was heard, the third respondent before us, makes no reference to this submission. In the absence of any reference to the point in the affidavit it is unnecessary to deal with it at any length. It appears, however, from the detailed record of the proceedings before the Special Tribunal - which was annexed to the petition - that this question was the subject of lengthy discussion and argument, and the President of the Tribunal made some remarks which seem to throw doubt on the competence of this court to interfere in proceedings before the military courts. In one of its decisions it was held by the Special Tribunal that:-

 

            "There is no authority in the law of the State for the submission:

 

            (a) that the High Court of Justice may intervene in the course of proceedings before a military tribunal:

           

            (b) that a military tribunal is bound in any way by the decisions of any civil court...".

           

            It was this very decision which induced counsel for the petitioner to make the submission contained in paragraph 10 of the affidavit which he filed, and since the question of the "superiority" of the civil as against military courts is raised in this court all too frequently, it is imperative that something be said here on this subject which will constitute an "authority", or, at least, something in the "nature of an authority".

           

4. The Army Code, 1948, from the provisions of which the military tribunals derive their jurisdiction, is modelled upon the English Army Act. This Act does not lay down specifically the relationship between the civil courts and military tribunals. Learned jurists in England, however, regard the military tribunals as part of the general system of courts for certain purposes, and in the course of time a number of principles which indicate the de facto relationship between these courts have been laid down by the courts and legal writers. A number of these principles are cited in the Manual of Military Law, in Chapter 8 of which the following is laid down:1)

 

            "The members of courts martial... are, like the inferior civil courts and magistrates, amenable to the superior civil courts for injury caused to any person by acts done either without jurisdiction, or in excess of jurisdiction... Such injuries will equally be inquired into whether they affect the person, property, or character of the individual injured; and whether the individual injured is a civilian or is subject to military law".

 

            '"The jurisdiction of a tribunal may be limited by conditions as to its constitution, or as to the persons whom, or the offences which, it is competent to try, or by other conditions which the law makes essential to the validity of its proceedings and judgments. If the tribunal fails to observe these essential conditions, it acts without jurisdiction... The result of acting without jurisdiction is that the act is void, and each member of the court-martial... is liable to an action for damages".

 

            "The proceedings by which the courts of law supervise the acts of courts-martial... may be criminal or civil... Civil proceedings may either be preventive, i.e., to restrain the commission or continuance of an injury; or remedial, i.e., to afford a remedy for injury actually suffered. Broadly speaking, the civil jurisdiction of the courts of law is exercised as against the tribunal of a court-martial by writs of prohibition or certiorari.

 

            "The writ of prohibition issues out of the High Court of Justice to any inferior court, when such inferior court concerns itself with any matter not within its jurisdiction, or when it transgresses the bounds prescribed to it by law. The writ forbids the inferior court to proceed further in the matter, or to exceed the bounds of its jurisdiction; and if want of jurisdiction in the inferior court be once shown, any person aggrieved by the usurpation of jurisdiction is entitled to the writ as a matter of right".

           

            "Disobedience of a prohibition is a contempt of court, and as such punishable by fine and imprisonment at the discretion of the court which granted the writ “.

           

5. These principles are laid down in respect of the courts of England, but as it is not disputed that the military tribunals in this country are also part of the system of the courts generally, it may be assumed that they also apply to the relationship between the civil and the military courts in Israel. Since this is so, this court is competent to direct military tribunals, through orders issued by it, to refrain from considering a particular matter, and it is the duty of the military tribunal to which the order is addressed to comply with its terms. Section 58 of the Army Code, 19481), is entirely irrelevant. This section, which for some reason has been given the title "The supremacy of Military Tribunals" - is merely designed to provide that a soldier who has committed an offence and is arraigned in criminal proceedings before a civil court is not released thereby from also being tried for the same offence before a military tribunal. It can on no account be deduced from the language of the section, however, that military tribunals are never subject to the authority of this court, even when they purport to arrogate to themselves jurisdiction which in law they do not possess.

 

6. Mr. Cohn, in the course of his argument before as, submitted that in fact only a small number of applications for a Writ of Prohibition had been made to the civil courts in England, and even those which had been made, were dismissed. If this be the fact, it merely shows that those responsible for prosecutions in the military tribunals in England are very careful in their work and are anxious not to bring matters before the tribunals which are beyond their jurisdiction, or that the few applications which were in fact brought were not sufficiently well based to succeed. This does not show that a civil court will never intervene in the work of a military tribunal. The Manual of Military Law, which I have quoted, deals also with this point, and it is said there, at page 123:

 

"Although the writ of prohibition has never actually been issued to a court-martial, there seems no doubt that it might issue in a proper case".

           

7. We make these comments in the belief that the question of the "superiority" of military tribunals over civil courts will no longer trouble the judges who sit on such tribunals nor those who plead before them.

 

8. Turning now to Mr. Cohn's reply on behalf of the respondents, we find it is divided into two parts. The first includes those arguments which deal, in the main, with the submission that the petitioner's application to this court is premature. The second contains Mr. Cohn's arguments on the merits of the petition. We shall deal with these submissions separately.

 

9. In the first place, it is submitted by Mr. Cohn that this Court should not accede to the prayer of the petitioner, since the regular work of the military tribunals would be seriously hampered if it be held that any person charged before them is entitled, at any time, to apply to this court for a writ of mandamus or a writ of prohibition. It is emphasised by Mr. Cohn that he makes this submission on the specific instructions of the third respondent, the President of the Special Tribunal, which dealt with the case of the petitioner. In our opinion this argument discloses no ground for dismissing the petition, and there is no need to deal with it at any length. Where a person accused before a military tribunal requests a postponement of the proceedings in order to petition this court, the military tribunal may dismiss the application and proceed with the case, if this appears to it to be the correct course. Where, however, a person accused petitions this court and demands justice, it is right that he should be heard, and the doors of the court should not be closed against him merely to suit the convenience of the military tribunal. On no account are the basic rights of a citizen to be withheld on grounds such as these. If, indeed, a military tribunal acts in a particular case without jurisdiction, a serious infringement of the rights of the citizen has taken place, and this court will not hesitate to hear his petition, nor will it pay any regard to the degree of inconvenience which may be caused to the military tribunal in its work.

 

10. The second submission of the State Attorney is that this court will not usually intervene when another remedy is available to the petitioner. According to this argument the petitioner in this case must first be tried before the military tribunal. If he is convicted, he will be able to appeal against the judgment as is provided in the Army Code, 1948. If the judgment on the appeal does not satisfy him, he may apply to the responsible authority for a pardon. If at that stage too he feels aggrieved - only then may he petition this court. As a general rule the principle stated above is a sound one, and this court has in first acted upon it in innumerable cases. The jurisdiction of this court is derived from the second paragraph of Article 43 of the Palestine Order in Council, 1922, and section 7 of the Courts Ordinance, 1940. The second paragraph of Article 43 of the Order in Council provides that: -

 

"The Supreme Court, sitting as a High Court of Justice, shall have jurisdiction to hear and determine such matters as are not causes or trials, but petitions or applications not within the jurisdiction of any other Court and necessary to be decided for the administration of justice".

           

Section 7 of the Courts Ordinance provides, inter alia, that: - "The High Court of Justice shall have exclusive jurisdiction in the following matters: -

 

            (a)        ..................

           

            (b)        orders directed to public officers or public bodies in regard to the performance of their public duties and requiring them to do or refrain from doing certain acts".

           

            In the light of these two provisions this court (in the time of the Mandate) gave a number of directives to indicate in which cases it will intervene and in which cases it will refrain from intervening; see, for example, Havkin v. Inspector-General of Police and Prisons (1) which sets forth the principles which had been laid down in a number of earlier decisions. Today, however, it is beyond doubt that this court will certainly intervene by the issue of a Writ of Prohibition, where an inferior court in a particular case proposes to assume jurisdiction it does not possess. The present case is not similar to one in which it may be said to the petitioner, as was said to him in the case of Barakat v. Maronite Ecclesiastical Court (2), "You have the right not to appear before the body which wishes to try your case if in fact it does not constitute a proper court; wait until actual steps are taken against you, for at this stage of the proceedings you have suffered no injury".

           

            In the case before us the petitioner does not deny that the body which proposes to try him is in general a legal and competent tribunal to deal with the cases of soldiers. His contention, however, is that in this particular case it is wholly incompetent to demand of him that he account for his actions. He is, moreover, not entitled to refuse to obey the summons of the tribunal - he is compelled to appear before it. It would be unjust, therefore, to compel the petitioner first of all to stand trial, and later to be subject to the several stages of the proceedings, with a serious charge carrying a heavy penalty hanging over him, and only after the trial has run its full course to appear here and show that all the proceedings were invalid. At this stage there is no place other than this court to which the petitioner can turn for relief. It seems to us, therefore, that this is one of the eases in which this court is entitled to come to a decision in accordance with both the second paragraph of Article 43 of the Order in Council, and section 7 of the Courts Ordinance.

 

11. The third submission of the State Attorney is that this court should not intervene during the proceedings of the Special Military Tribunal, since section 40 of the Army Code, 1948, deprives it of the right to interpret that Code. That section, which is headed "Interpretation of the Code", provides that "The Presidency of the Supreme Tribunal and any 'sitting' of the Supreme Tribunal shall be competent to interpret this Code should they deem it necessary so to do, and such interpretation shall be binding unless set aside by the Minister of Defence." As I have said, nothing is further from the intention of Mr. Cohn to deny the jurisdiction of this court. On the contrary, he has emphasisd time and again that this court is competent to make orders against military tribunals, and the presidents and judges of such tribunals. In his opinion, however, one power alone has been denied this court by the section cited, and that is the power to interpret the Code and the principles to which it gives expression. It can only be concluded, therefore, that section 40 impliedly deprives this court altogether of the power to consider any matter connected with the soundness of this submission.

 

12. We would point out that section 40, as is the case with many other sections in the Code, is drafted negligently and carelessly, and is defective both in what is lacking and in what is superfluous. It provides, for example, that "a sitting of the Supreme Tribunal" shall be competent to interpret the Code, but we do not know the nature of such a "sitting". Is it intended to refer to every panel of judges "of not less than twenty-one in number" spoken of in section 341), or only to the three or five judges of whom a tribunal is constituted for a particular purpose, as stated in section 361). If the intention is to refer to all the judges sitting together, why are they described by the name "sitting" and not "panel of judges", the name which appears in the marginal note to regulation 34? And if it is intended to refer to a tribunal as ordinarily constituted, sitting for the purposes of a particular case, the question arises whether it is only the Supreme Tribunal which is competent to interpret the Code? Have the inferior military tribunals been deprived of this power ? If so, how is it possible to imagine that an ordinary military tribunal will consider a case in accordance with the Code without being competent to interpret it? And how did the Special Tribunal, which dealt with the case before us, reach its decision if not by interpreting the Code? Moreover, section 40 provides that "such interpretation shall be binding". On whom shall it be binding? Shall it bind every inferior military tribunal in every case brought before it, or only a single particular military tribunal dealing with a particular matter brought before it? And what about the Superior Military Tribunal itself? Will an interpretation given by one "sitting" bind another "sitting" of the same tribunal, or not? And was it the intention that such interpretation should also bind other courts - such as this court - or not? It is elementary principle that an ordinary civil court is not to be deprived of jurisdiction otherwise than by an express provision or an implied intimation in the body of the law itself. (See, for example, section 8(3) of the Registrars Ordinance 1936: section 45 of the Constituent Assembly Elections Ordinance, 1948; regulation 5 of the Emergency (Requisition of Property) Regulations 1948). It would seem, therefore, that the only remarkable feature of this regulation is that the presidency of the Supreme Military Tribunal - although this presidency is not a tribunal in the accepted sense of the term and is also not included in the judicial administration as detailed in regulation 7 - is also competent to interpret the Code, and its interpretation, as also the interpretation of "every sitting of the Supreme Military Tribunal" shall be binding "unless rejected by the Minister of Defence" Their interpretation "will be binding", excludes a case in which their interpretation has not yet been given. In the case before us no interpretation has yet been given by the bodies mentioned in regulation 40, and for this reason this court is competent to interpret the Code for the purpose of this case.

 

13. We now come to deal with the principal submissions of counsel for the parties. As I have said, the petitioner was brought to trial before the Special Military Tribunal under section 214(b) of the Criminal Code Ordinance, 1936, and section 97 of the Army Code. All the arguments of counsel for the parties were concentrated on the exact interpretation which is to be given to section 97, and indeed the fate of the application depends upon which version is accepted by the court.

 

14. Section 97 of the Army Code, 1948, provides:

 

            "(97) Every soldier who, within the framework of the army or by reason of his belonging to the army commits an offence punishable under the general criminal law which is in force or will from time to time be in force in the State and for which belonging to the army does not expressly release the offender from liability, may be tried for such offence before a military tribunal and shall be liable to the same punishment as that to which he would be liable in the ordinary courts".

           

            It is difficult to say that this provision is short and clear, and it is no wonder that the parties before us differ as to its meaning.

           

            Mr. Geiger, counsel for the petitioner, interprets this regulation so as to deprive a military tribunal of the power to try a soldier who has committed an offence under section 214(b) of the Criminal Code Ordinance, 1936, beyond the borders of Palestine. His submission may be framed as follows : when a soldier is tried before a military tribunal for an act which constitutes an offence under the existing criminal law, it must first be ascertained whether, according to that law, the accused would be liable to be punished were he to be tried before the ordinary courts. Counsel stresses the words "commits an offence which is punishable under the existing criminal law", and concludes from this that any act, even if it constitutes an offence, which for any reason would not be punishable by the ordinary courts, is also not punishable by military tribunals. One of the limitations on the powers of the ordinary courts, so counsel continues, is contained in section 6 of the Criminal Code Ordinance, 1936. This section provides : "The jurisdiction of the Courts of Palestine for the purposes of this Code extends to every place within Palestine or within three nautical miles of the coast thereof measured from low water mark".

           

            From this it follows, counsel submits, that the general criminal law recognises only the territorial jurisdiction of the ordinary courts, and not jurisdiction as to persons who commit offences outside the territory. The only exception is that contained in section 5 of the Ottoman Law of Criminal Procedure 18791) which is still in force. Every section of the Criminal Code Ordinance which creates an offence, therefore, must be read together with section 6 of that Ordinance, in order to test whether or not the courts have jurisdiction.

 

15. Applying this test, counsel submits, it is clear that had the petitioner in the case before us been brought to trial for the offence charged before an ordinary civil court, that court would have had no jurisdiction to try the case since the offence charged was committed in Lebanon. That being so, the special Military Tribunal also has no jurisdiction to try the petitioner, since the act in respect of which he is charged before that tribunal does not constitute "an offence punishable under the existing criminal law".

 

16. Mr. Geiger finds support for his submission in the concluding portion of section 97. This section, in speaking of the punishment which may be imposed by a military tribunal for an offence described in the opening portion thereof, provides that the accused "shall be liable to the same penalty as could have been imposed upon him in the ordinary courts". Had a person in the position of the accused been tried before the ordinary courts, so the argument proceeds, he would not have been liable to any penalty at all since, as the offence was committed beyond the borders of Palestine, such court would have had no jurisdiction to try the case. This being so the petitioner, in terms of the concluding portion of the section quoted, is also not liable to any penalty before the Special Tribunal, and if there is no penalty there is no jurisdiction, and there can be no trial.

 

17. Mr. Geiger has not overlooked section 3 of the Army Code which provides that "the Army Code, 1948, shall be binding upon the army and all its institutions and units, and upon soldiers of all ranks whether within the State or beyond its borders". In the first place, however, he submits that this section applies the Code only in respect of the offences set forth in the Army Code itself, that is to say, military offences, and not in respect of other offences which are civil in character and to which the Criminal Code Ordinance - including the limitation in section 6 thereof - applies. According to this argument, therefore, the Army Code, 1948, binds the army, its institutions, units, and soldiers, wherever they are, but only in respect of the offences set forth in that Code, and not in respect of an offence which is stated in the general criminal law. Mr. Geiger further submits in the alternative that the words "beyond its borders" in section 3 mean beyond the borders of the State of Israel, and beyond the borders of the area which was once covered by the Mandate, and was called "Palestine". From this it follows that the Army Code, 1948, binds the army, its institutions, units, and soldiers both in the State of Israel and in Palestine, but does not apply to acts performed by a soldier in Hula in Lebanon - a place beyond the borders of Palestine.

 

18. In explanation of this latter interesting conclusion Mr. Geiger relies upon a number of ordinances, regulations and proclamations. His contention may be put in this way: On May 14, 1948, there was the declaration of the establishment of a Jewish State, namely, the "State of Israel". The Declaration of the establishment of the State, which is published in Official Gazette No. 1, page 1, draws a distinction between the "State of Israel" and "Eretz-Yisrael".1) The "State of Israel" extends only over a portion of "Eretz Yisrael". In terms of section 1 of a proclamation published the same day a legislative authority, the Provisional Council of State, was constituted, and by virtue of the powers conferred upon it, it enacted the Law and Administration Ordinance, 1948. In terms of section 11 of that Ordinance there shall remain in force in the State of Israel ''the law which existed in Palestine on 14th May, 1948". It follows that the limitations on the powers of the legislative authority which applied previously under the law "which existed in Palestine" were not repealed and are still in force. Article 38 of the Palestine Order in Council, 1922, as amended by the Order in Council (Amendment) 1935, provides that "Subject to the provisions of any part of this Order or any Ordinance or Rules, the Civil Courts hereinafter described, and any other Courts or Tribunals constituted by or under any of the provisions of any Ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine".

 

            From this it follows that the territorial jurisdiction of the courts of the State of Israel is in fact more limited than that of the courts which existed in the time of the Mandate, for the area of jurisdiction of the courts of the State of Israel only extends over the area of the State, while the area of jurisdiction of the courts in the time of the Mandate extended over the whole area of "Eretz-Yisrael".

           

19. The Provisional Council of State, in enacting section 1 of the Area of Jurisdiction and Powers Ordinance, 1948, opened the door for extending the areas in which the law of Israel will apply. That section provides : "Any law applying to the whole of the State of Israel shall be deemed to apply to the whole of the area including both the area of the State of Israel and any part of Palestine which the Minister of Defence has defined by proclamation as being held by the Defence Army of Israel." In this extension, however, there are limitations. Firstly, it is necessary that the extended area be defined by a proclamation of the Minister of Defence as being held by the Defence Army of Israel. Secondly, it is necessary that such extended area be situated within the borders of Palestine - even if it be beyond the borders of the State of Israel. In no circumstances, however, may it extend beyond the borders of Palestine.

 

20. The result, so counsel submits, is that if we read section 3 of the Army Code in the light of all the statutes and proclamations to which I have referred, the meaning of that section is as follows : The Army Code binds the army both within the State and beyond its borders that is to say, beyond the borders of the State of Israel, but not beyond the borders of Palestine. This being so, and the village of Hula in Lebanon being beyond the borders not only of the State of Israel but also of Palestine, and seeing it has not been defined by the Minister of Defence as an area which is held by the Defence Army of Israel, the Army - Code does not apply to it, and the military tribunals have no jurisdiction to try a person for an offence committed by him in that village.

 

21. In view of the authorities which apply to this case these arguments, though forceful, do not appeal to us. Section 97 of the Army Code is of course of decisive importance. The correct intention of that section may be discovered by considering the sections which precede it. Section 97 is found in that chapter of the Army Code which deals with the various types of offences. All the preceding sections, starting with section 77, specify the offences for which a soldier is liable to be tried, and lay down penalties attaching to them. Almost all of these offences are of a military character and are not mentioned in the general criminal law. On the other hand, the general criminal law details numerous offences of a civil character of which there is no mention in sections 77-96 inclusive of the Army Code. Were it not for section 97 a military tribunal would not be competent to try a soldier for one of the offences included in this last group of sections referred to. This section introduced two innovations:

 

            (a) the offences specified in the general criminal law are also offences under the Army Code and may therefore be dealt with by military tribunals.

           

            (b) the penalties which may be imposed upon a soldier by military tribunals in respect of such offences are those laid down in the general criminal law.

           

            This section, therefore, serves as a channel through which all the offences specified in the general criminal law flow into the Army Code, thereby adding to the list of offences already specified in the preceding sections. The opening words of the section "commits an offence punishable under the general criminal law" refer to a soldier who has committed an act regarded by the general criminal law as a punishable offence - that is to say, an act for which a penalty has been prescribed. This is the substantive portion of the law regarding military tribunals and it bears no relationship whatsoever to the question of the jurisdiction of the ordinary courts. Let us suppose that a person is charged before the District Court of Haifa with an offence committed by him within the area of jurisdiction of the District Court of Jerusalem. It is clear that the District Court of Haifa has no jurisdiction to try and punish the accused. This in itself, however, in no way affects the fact that the act committed by the accused is in the nature of a punishable offence. The District Court of Haifa has no jurisdiction but the offence is still an offence which is punishable under the Criminal Code.

           

22. This is what is intended by the opening words of section 97. Where a soldier is charged before a military tribunal under a section of the Criminal Code, the opening words of section 97 require that that Code be consulted in order to determine whether the act of the accused constitutes an offence for which a penalty is prescribed. At this stage no reference should be made to section 6 of the Criminal Code, for that section deals not with offences and punishments but with the jurisdiction of the general courts, while we are concerned with the military courts.

 

23. In the same way in which the offences described in the general criminal law are introduced into the Army Code by the opening words of section 97, so the penalties attaching to such offences are introduced by the concluding words of the same section. There may be some force in the submission of Mr. Geiger that the words "shall be liable to the same punishment as that to which he would be liable in the general courts" in the concluding portion of the section, force as to ask whether the person in question would be liable to be punished had he been charged before an ordinary court, and I attach importance to the words "to which he would be liable". The person charged in this case would not be liable to be punished in a general court - not because there is no offence, but because in terms of section 6 of the Criminal Code such court would have no jurisdiction to impose the punishment. This submission, however, goes not to the jurisdiction of the military tribunal but to the merits of the case. It must be made, therefore, before that tribunal when all the other submissions of the defence on the merits of the case are presented to that tribunal.

 

24. It must be borne in mind, moreover, that the opening words of section 97, in speaking of the offence, are directed not to a particular person charged nor to a particular offence, but to offences generally ("an offence punishable"). As against this, the concluding words of the section speak of the punishment to which a particular accused may become liable. It follows, therefore, that the jurisdiction of the military tribunal is to be determined by the following two factors:

 

(a)    whether the accused committed an act which constitutes an offence under the Criminal Code;

 

(b)   whether a punishment for such offence is prescribed by the Criminal Code.

 

The question whether or not a particular person charged is liable to be punished for a particular act does not require consideration of the jurisdiction of the military tribunal but of the charge itself, that is to say, whether or not upon that charge the accused is liable to be punished. That is a matter for the military tribunal - and not for this court.

 

25. We find support for this opinion in section 3(b) of the Criminal Code Ordinance, 1936. That section provides that "The provisions of this Code shall be without prejudice to . . . .

 

(b)   the liability of any person to be tried and punished for an offence under the provisions of any law relating to the jurisdiction of the Palestine Courts in respect of acts done beyond the ordinary jurisdiction of such Courts;"

 

            In other words, the legislature has left the door open for itself to enact laws in the future (and to provide therein also for what has happened in the past) whereby courts will be competent to try and punish persons for acts committed by them which fall beyond the ordinary jurisdiction of such courts, without their being limited by the provisions of the Criminal Code Ordinance (referring, apparently, to section 6 of that Ordinance). The Army Code must be regarded as one of those laws.

           

26. To sum up our consideration of this problem, therefore, section 97 was not intended to introduce into the Army Code the whole of the existing Criminal Code, but only specific sections thereof, namely, those which deal with particular offences and the punishment for such offences, and no more.

 

            The Criminal Code Ordinance, for example, devotes a whole chapter (chapter 4) to "General Principles relating to Criminal Responsibility". For the purposes of the Army Code, however, sections in the Ordinance creating an offence must not be read together with the sections of that chapter, since a whole chapter of the Army Code, namely, part 3, chapter I, is also devoted to these and similar matters. Moreover, the expression "offence" itself is defined differently in the two statutes. It follows from this that it is not the whole of the Criminal Code that has been introduced into the Army Code by section 97, and that section 6 of the Criminal Code Ordinance falls outside the Army Code which contains a parallel provision in section 3 thereof.

           

27. Even if this is not so, and section 6 of the Criminal Code Ordinance is included in the Army Code by virtue of section 97, that Code also includes section 3(b) which, as I have said, renders section 6 inapplicable.

 

28. We shall now examine the nature of Mr. Geiger's second submission. As we have already said, it is his contention that the Special Military Tribunal lacks jurisdiction because even if the Army Code, by virtue of section 3, binds the army and its soldiers also beyond the borders of the State of Israel, it does not apply to them beyond the borders of Palestine, and the act in respect of which the petitioner is charged took place beyond the borders of Palestine. There is no doubt that a number of legislative provisions published after the declaration of our political independence distinguish between the area which is included in the State of Israel and the area which is outside the State of Israel, but within the borders of Palestine, and lay down a number of provisions relating to those areas of Palestine which have been defined by the Minister of Defence as occupied areas. This distinction, however, between the "State of Israel" and "Palestine" does not appear in section 3 of the Army Code. That section applies the Army Code to the army wherever it is, whether within the State or beyond its borders - the words "beyond its borders" are without limitation.

 

29. Two further submissions have been advanced by Mr. Geiger:

 

            (a) just as no extra-territorial jurisdiction has been conferred upon the civil courts, the military tribunals have no such jurisdiction;

           

            (b) if, indeed, it was the intention of the Minister of Defence to confer extra-territorial jurisdiction upon the military tribunals by section 3 of the Army Code, that section would be ultra vires.

 

30. In support of these submissions Mr. Geiger relies upon the case of Attorney-General v. Nikolaiovitch (3) and upon obiter dicta in the judgment. In that case a number of persons were charged under the Immigration Ordinance with assisting Jewish refugees to immigrate to this country. It was proved that the act committed by the accused had been performed beyond the territorial waters of Palestine. It was accordingly held by the court that since it exercised no authority over the place where the offence was committed it had no jurisdiction to deal with the matter. The Supreme Court (in the time of the Mandate), sitting as a Court of Appeal, upheld the judgment, relying upon the English case of Macleod v. Attorney-General for New South Wales (4).

 

            The facts in Macleod's case were as follows: The appellant, a resident of New South Wales, married a woman in America during the life of his former wife. Upon his return to New South Wales he was charged with the crime of bigamy and upon the basis of a statute which made the marriage of a second wife in any place whatsoever, during the lifetime of the former wife a criminal offence, was duly sentenced. The Court of Appeal in New South Wales upheld this judgment. The decision, however, was reversed by the Privy Council which held that the statute in question must be very strictly interpreted, and that the words "in any place whatsoever" meant any place within the area of New South Wales and not outside it.

           

            The Privy Council went on to point out that were the position otherwise it would mean that the colony of New South Wales assumed jurisdiction over every place in the world. The assumption of powers such as these, which exceeded those conferred upon the colony, was inconceivable. The Privy Council cited with approval the remarks of Baron Parke in Jefferys v. Boosey (5) that,

           

            "It is clear that the Legislature has no power over any person except its own subjects, that is, persons natural-born subjects, or resident, or whilst they are within the limits of the Kingdom. The Legislature can impose no duties except on them; and when legislating for the benefit of persons must, prima facie, be considered to mean the benefit of those who owe obedience to our laws, and whose interests the Legislature is under a correlative obligation to protect.”

           

The Court in the case of Nikolaiovitch (3), when dealing with the principle laid down in Macleod's Case (4), pointed out obiter that had it been the intention of the legislature in enacting the Immigration Ordinance to empower the courts of this country to deal with offences committed beyond its territorial waters, it could not have done so because of the limitations upon its own powers. For these reasons Mr. Geiger asks us to conclude that even under section 3 of the Army Code the area of jurisdiction of the Special Tribunal in this case does not extend beyond the borders of Palestine since that section is to be strictly interpreted.

 

31. These arguments too, which were advanced by Mr. Geiger with much ingenuity, do not appeal to us. It is an important principle of the common law that the area of jurisdiction of the courts extends over the area of the State alone, and that they have no jurisdiction in regard to offences beyond the borders of the State - that is to say, that the criminal jurisdiction of the courts is territorial and not personal (see Archbold's Pleading, Evidence and Practice in Criminal Cases, thirty first Edition, page 25). The Privy Council in Macleod's Case (4) reached its decision upon the principles of the common law which have been introduced into the framework of our criminal law by section 6 of the Criminal Code Ordinance. In England too, however, that principle is subject to limitation and change, and it does not apply when the jurisdiction of the courts has been expressly extended by the legislature. Thus it is said by Archbold, (ibid),

 

            "The jurisdiction of the Courts of British colonies is limited to offences committed within their territories unless express legislation otherwise provides".

           

and at page 26 he says,

 

            "in the case of British subjects who have committed offences abroad there are many exceptions to the common law rule by virtue of specific statutes".

           

We have already seen that the Ottoman Law also recognised personal jurisdiction in the special case dealt with in section 5 in the Ottoman Code of Criminal Procedure, and it is not impossible that this is also the intention of section 3(b) of the Criminal Code Ordinance. Section 3 of the Army Code is then only another example of this. This section confers jurisdiction upon military tribunals to try a military offender who has committed an offence beyond the borders of the State. In other words the jurisdiction of military tribunals is personal and is unlimited by geographical boundaries. Moreover, as we have already seen, the words "beyond its boundaries" are intended to refer to any area beyond the borders of the State, without limitation.

 

32. We now come to deal with the second argument of Mr. Geiger that if that was indeed the intention of section 3 of the Army Code, then that section is ultra vires. Mr. Geiger bases this submission upon Article 38 of the Order in Council, the Declaration of the State of Israel and the first Proclamation made on May 14, 1948, section 11 of the Law and Administration Ordinance, and section 1 of the Areas of Jurisdiction and Powers Ordinance.

 

            There would have been substance in this submission of Mr. Geiger had the Army Code, 1948, been enacted by virtue of the Palestine Order in Council. That, however, is not the case. The Code was enacted in the exercise of powers conferred upon the legislature after the establishment of the State. It is stated at the commencement of the Emergency Regulations Army Code, 1948, that they were made by virtue of the powers conferred upon the Minister of Defence by Section 9 (a) of the Law and Administration Ordinance, 1948. Section 9(b) of the Ordinance provides that,

           

            "An emergency regulation may alter any law, suspend its effect or modify it..... "

           

It is true that in terms of section 11 of the Ordinance

 

            "The Law which existed in Palestine on the 14th May, 1948, shall remain in force"

           

but there are added immediately the additional words,

 

            "in so far as there is nothing therein repugnant to this Ordinance or to other laws which may be enacted by or on behalf of the Provisional Council of State . . . . ."

           

Section 2(a) of the Law and Administration (Further Provisions) Ordinance, 1948, moreover, explains section 11 of the Law and Administration Ordinance, 1948, in providing that

 

            "Where any Law enacted by or on behalf of the Provisional Council of State is repugnant to any law which was in force in Palestine on the 14th May, 1948, the earlier Law shall be deemed to be repealed or amended even if the new Law contains no express repeal or amendment of the earlier Law".

 

It follows therefore that whatever may be the effect of Article 38 of the Order in Council and section 6 of the Criminal Code Ordinance, 1936, there can be no doubt whatsoever that section 3 of the Army Code, 1948, repealed or amended or replaced all earlier provisions in the Law as was the case, as we have seen above, with the specific statutes in England which modified the principle applied by the common law. It follows therefore that by virtue of this section a military tribunal is competent to try a soldier who has committed an offence under the Army Code (this including an offence under the general criminal law which has been introduced into the Army Code under section 97) beyond the State of Israel, or beyond the area of Palestine to which the Mandate applied. Since this is so, the Special Tribunal constituted for the purpose of dealing with the offence committed by the petitioner in the village Hula in the Lebanon was also competent to try the case.

 

33. We desire in conclusion to mention one other argument of the State Attorney. He submitted at the outset of his argument that since the Minister of Defence had dealt neither directly nor indirectly with the matter of the petition there was no necessity to join him as a respondent. In any event, he continued, the name of the Minister should be deleted from the petition so as not to hinder him in the exercise of the powers conferred upon him by section 40 of the Army Code.

 

            It might be proper to examine this submission but in view of the conclusion which we have reached, as set forth above: we do not deem it essential to deal with it here since, in any event, the court has refused the petitioner the relief which he seeks.

           

            In view of what we have said it has been decided to discharge the order nisi granted upon the application of the petitioner.

           

                                                       Order Nisi Discharged.

                                                       Judgment given on February 1, 1959.

 

 

 

Justice U. Vogelman

Undoubtedly, information provided to a journalist with the intention that it not be published, and which could disclose the identity of the source, is protected by the journalist’s privilege discussed by President M. Shamgar in Citrin [1]. In my view, any other interpretation will render the principle of a journalist’s privilege, as outlined in Citrin [1], empty of substance. I therefore join in the determinations made in paragraphs 98 and 99 of my colleague Justice E. Rubinstein’s opinion, and in his holding that the state may petition the magistrate court to remove the privilege in accordance with the tests established in Citrin [1]. This does not mean that I take a position – in either direction – regarding the scope of the journalist’s privilege with respect to the handing over of information that will not necessarily lead to the exposure of the source of the journalist’s information, and I wish to leave that question for further review.

 

Decided per the opinion of Justice E. Rubinstein.

 

15^th of Kislev 5773

29 November 2012.

 

The Supreme Court sitting as the High Court of Justice

HCJ 3368/10

HCJ 4057/10

 

Before:                                                The Honorable Justice E. Arbel                                                                                  The Honorable Justice I. Amit                                                                                    The Honorable Justice U. Shoham

 

The Petitioners in HCJ 3368/10:   1.   The Ministry of Palestinian Prisoners

                                                      2.   Adv. Fahmi Shakirat

                                                      3.   Adv. Kamil Sabbagh

                                                      4.   Adv. Kareem Ajwa

 

The Petitioners in HCJ 4057/10    The Association for Civil Rights et al.

 

v.

 

The Respondent in HCJ 3368/10: 1.   The Minister of Defense

 

The Respondent in HCJ 3368/10

and in HCJ 4057/10                      2.   GOC Central Command, Commander of IDF Forces in the Region

 

                                                                        Petition to Grant an Order Nisi

 

Date of Session:                                           14^th of Sivan, 5773 (May 23, 2013)

 

On behalf of the Petitioners

in HCJ 3368/10:                            Adv. S. Ben Natan

 

On behalf of the Petitioners

in HCJ 4057/10:                            Adv. L. Margalit

 

On behalf of the Respondents:     Adv. A. Helman

 

P A R T I A L   J U D G M E N T

 

Justice E. Arbel:

 

The Petitions before us, the hearings of which were united, address the question why not shorten the periods of detention which are prescribed in the security legislation in the Judea and Samaria region, including in the Order Regarding Security Provisions [Consolidated Version] (Judea and Samaria) (no. 1651), 5770-2009 (hereinafter: the "Security Provisions Order" or the "Order"), which came into effect on May 2, 2010. In the framework of the Petitions, this Court was requested to determine periods of detention which shall be shorter than those determined in the Security Provisions Order, as required under international law and in a manner that corresponds with the periods of detention that are customary in Israel.

 

 

Background

 

1. Petitioner 1 in HCJ 3368/10 is the Ministry of Prisoners' Affairs in the Palestinian Authority, to which, under the security legislation, most of the detainees belong, and which attends to their welfare, their families, their legal representation and which engages lawyers who are members of the Israel and Palestinian Bar Associations. Petitioners 2-4 are lawyers who represent, on behalf of the Ministry of Prisoners' Affairs, suspects who are detainees under the security legislation. The Petitioners in HCJ 4057/10 are the Association for Civil Rights in Israel, "Yesh Din" – Volunteers for Human Rights and the Public Committee against Torture in Israel.

 

2. The Petitioners filed their Petitions in light of the legal reality that existed at the time the Petitions were filed, pursuant to which the law applicable to Israeli citizens in the Judea and Samaria region (hereinafter: the "Region"), is different than the law applicable to Palestinians in the Region. In the framework of the Petitions, the said Petitioners requested to shorten the periods of detention prescribed in the Security Provisions Order such that they will be the equivalent to the periods applicable to Israeli citizens in the Region and will correspond to the periods of detention that are customary in Israel.

 

The Law that was in Effect at the Time the Petitions were Filed

 

3. The period of the pre-indictment detention and the period of detention until the end of proceedings are grounded in Article C of Chapter C of the Security Provisions Order, which addresses the arrest and release of Palestinian detainees in the Region. Sections 31 and 32 of the Security Provisions Order prescribed the following with respect to detention prior to judicial review:

 

"31.   (a) A soldier may arrest, without an arrest warrant, any person violating the provisions of this order or if there is cause to suspect that he committed an offense under this order.

(b) A person arrested in accordance with sub-section (a) shall be transferred as soon as possible to a police station or place of detention as determined in this order.

(c)   An arrest warrant against a person arrested in accordance with sub-section (a) must be received within a reasonable time; if an arrest warrant is not given within 96 hours from the time of his arrest - he shall be released.

(d) The Commander of the IDF Forces in the Region may authorize any person to order the release of a person arrested in accordance with sub-section (a), provided that no arrest warrant pursuant to the provisions of this article was issued against such detainee.

 

32.     (a)   A police officer who has reasonable grounds to assume that a person violated the provisions of this order or who becomes aware that the investigation material that was gathered against the person who was arrested in accordance with sub-section 31(a) necessitates his continued detention, is authorized to issue a written arrest warrant for a period which shall not exceed eight days from the time of his arrest.

(b)   If an arrest warrant as noted was issued for a period shorter than eight days from the time of his arrest, a police officer may extend it in writing, from time to time, provided that the total periods of detention shall not exceed eight days from the time of his arrest."

 

With respect to the extension of the detention prior to the filing of an indictment, Sections 37 and 38 of the Security Provisions Order prescribe as follows:

 

"37.   A judge is authorized to grant an arrest warrant and to extend the duration of the detention, provided that the arrest warrant or the detention extension shall not be for a period exceeding thirty days at a time and that the total period of detention in accordance with this section shall not exceed ninety days.

 

38.     A Military Court of Appeals judge, may, at the request of the Region's legal counsel, order the extension of the detention of a person who was arrested under Section 37, or his renewed arrest, for a period which shall not exceed three months; if such an arrest warrant is granted for a period of less than three months, a Military Court of Appeals judge may extend it from time to time, provided that the total period of detention in accordance with this section shall not exceed three months."

 

With respect to the period of detention until the end of proceedings, Section 44 of the Security Provisions Order provides as follows:

 

"44.   The matter of a defendant who after being indicted was held under detention for the same indictment for a cumulative period that amounted to two years and whose trial in the court of first instance did not end with a verdict, shall be brought before a judge of the Military Court of Appeals.

The judge will hear the defendant's matter and order his release, conditionally or unconditionally, unless the judge believed that the circumstances of the matter, including the severity of the offense attributed to the defendant and his level of dangerousness, the fear of him fleeing justice and the reasons for the prolonging of proceedings, do not justify his release.

(b)   If the judge decides that the circumstances of the matter do not justify the defendant's release, the judge may instruct the defendant's continued detention for a period which shall not exceed six months, and may reorder this from time to time."

 

In accordance with that which is stated above, at the time the Petitions were filed with this Court, a suspect who was arrested under the Security Provisions Order could have been held under detention up to eight days without judicial review, up to 90 days before the filing of an indictment, and with court approval – up to six months. Additionally, a defendant could have, before his trial was completed, been held under open ended detention, subject to periodic extensions every six month, after two years from the commencement of his detention.

 

4.As opposed to the detention periods applicable to Palestinians in the Region, which are listed in the Security Provision Order, Israeli law prescribes detention for citizens of up to 24 hours (which can be extended up to 48 hours) until being brought before judicial review, detention of up to 30 days, which can be extended up to 75 days with the Attorney General's approval, before filing of an indictment, and detention of nine months, which can be periodically extended every three months, until the end of proceedings (Sections 17, 29, 30, 59, 60, 61 and 62 of the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996). Additionally, certain exceptions are prescribed in the Israeli law with respect to suspects who are arrested for security offenses and with respect to minors who have been arrested (Criminal Procedure (Arrest of a Security Offense Suspect (Temporary Provision) Law, 5766-2006 and the Youth (Adjudication, Punishment and Methods of Treatment) Law 5731-1971).

 

The Claims of the Petitioners in HCJ 3368/10

 

5.The Petitioners claim, through Adv. Smadar Ben Natan, that the periods of detention prescribed in the Security Provisions Order that applies to the Palestinians in the Region are significantly longer than the standards prescribed for such matters both in international law and in the corresponding periods in Israel. They claim that these periods infringe the right to due process and the protection against arbitrary infringement of liberty which are granted to the residents of the Region, both by virtue of international law and by virtue of the fundamental principles of Israeli law. According to the Petitioners, although at hand are two different regions that are subject to different legal regimes, however both are under the control of the State of Israel.

 

6.The Petitioners further claim that the far-reaching changes that have occurred in Israeli law have hardly been reflected in the military legislation in the Region. They claim that experience shows that the extended periods of detention impact the manner in which arrest and interrogation procedures are conducted, such that they excessively infringe detainees' rights: de facto, the detention of detainees who are arrested in an initial arrest, is not requested to be extended before the lapse of the eight days allowed by the Security Provisions Order; many of them are not interrogated at all during entire days of this detention period and during subsequent detention periods; in many cases, detainees are released after four, five or even eight days without procedures being taken with respect thereto and without a cause of arrest against them being examined by a judge. According to the Petitioners, such an extended period of detention creates fertile ground for inappropriate treatment, for pressure and violence in the interrogation, such as the arrest of a relative without any real cause as a means of pressure.

 

7.The Petitioners add that the proceedings at the Military Courts after the filing of an indictment, are conducted ponderously: Most of the cases end with plea bargains since defendants know that if they chose to conduct a trial, they will stay in detention for a long and unlimited period of time; in the few cases that do go to trial, the periods of time between hearings are extended, the number of judges is small in relation to the volume of the cases, and this reality is created and encouraged by the unlimited detention until the end of proceedings.

 

8.The Petitioners further state that until the implementation of the Disengagement Plan, detainees from the Gaza Strip were subject to the provisions of the Security Provisions Order and that since the Disengagement detainees from the Gaza Strip are brought for detention extensions before the Israeli Courts, subject to Israeli law. According to them, the Israeli law also applies to the population of the settlers. According to the Petitioners, this reality constitutes a violation of equality among people – a legal apartheid. The Petitioners emphasize that not all of the offenses addressed in the Military Courts are security offenses, but the laws of detention apply to all of the detainees.

 

9.According to the Petitioners, the judicial review in the detention proceedings is an integral part of the suspect's right to due process. The very lengthy periods of detention are not justified due to security needs or due to circumstances that are unique to the Region. Therefore, they claim, there is a duty to act in accordance with similar standards in protecting human rights in the procedural criminal proceeding and they request to cancel Sections 31A, 32 and 44 of the Security Provisions Order, to shorten the periods of detention and to determine periods of detention that correspond to those that are customary in Israel.

 

The Claims of the Petitioners in HCJ 4057/10

 

10.These Petitioners, through Adv. Lila Margalit, also requested to amend the Security Provisions Order and they raise similar claims against the periods of detention prescribed in the Order. They claim that the periods of detention severely and gravely infringe the fundamental rights of the Palestinian residents of the Region, their right to liberty and their right to be free of arbitrary arrest, as well as their right to due process, dignity and equality, to appropriate means of supervision in order to ensure fair interrogation and in order to prevent torture. These detainees are subject, so they argue, to illegitimate methods of interrogation and to improper treatment on behalf of the interrogation authorities. These infringements derive, according to the Petitioners, both from the fact that their treatment is arbitrarily different than the treatment of Israelis living in the Region and from the duration of the periods of detention which in and of themselves are exaggerated. According to the Petitioners, these infringements are contrary to the provisions of the customary and contractual international law applicable in the Region and to the principles of Israeli public law which apply to Israeli authorities. They argue that these infringements do not serve an appropriate purpose, are not proportionate and are not reasonable. According to the Petitioners' opinion, it is hard to describe a more severe and grave infringement of human rights than the illegitimate situation in which two "categories" of people who are distinguished from each other based on their national origin, are living beside each other. Even regardless of the discrimination allegation, the Petitioners claim that the periods of detention in the Security Provisions Order are contrary to the principles of international law which apply to the Region and to the principles of public law that apply to any action of Israeli authorities. According to them, immediate and frequent judicial review of the detention of a suspect is a necessary condition of its reasonableness and proportionality; an extended detention without judicial review is not proportionate.

 

11.The Petitioners add that the military prosecution's claim that the judicial review of the detention is to be delayed in order to enable the "formulation of a reasonable suspicion", attests that the Order is used for making arbitrary arrests, without there being a reasonable suspicion against the detainee. Therefore, the Petitioners claim that the initial detention period of Palestinian detainees is meant to enable arresting people without there being a reasonable suspicion against them; to protect the interrogation authorities from the court's "intervention", to grant the interrogators "minimal time" to exhaust the interrogation, to avoid the "disturbance" thereof that is involved in presenting the suspect before the judge, and to avoid the logistical difficulties involved in applying immediate judicial review.

 

12.According to the Petitioners, the lack of distinction between minors and adults in the security legislation regarding the periods of detention and the lack of sufficient consideration of the principle of the child's best interest during arrests of minors, result in a disproportionate infringement of children's rights which are grounded in international law and which are recognized by Israeli Law. The basic premises that Palestinian minors are worthy of less protection than Israeli minors also living in the Region, is, in their opinion, illegitimate.

 

13.The Petitioners add that the judicial review of the detention is meant to ensure the justification, from the outset, of the continued denial of a person's liberty and that there is no place to delay it in order to enable the authorities to progress with their interrogation. Additionally, judicial review also has a role in supervising the manner the interrogation is conducted and serves as an important guarantee against the application of illegitimate means of pressure during interrogation and against the use of the detention itself to make the suspect feel completely disconnected from the outside world and subject to the mercy of his interrogators, while his dignity and his right to be silent are being infringed. According to the Petitioners, interrogation that is far from the court's watchful eye, could lead to the use of illegitimate means of interrogation which violate the detainee's dignity and even the integrity of his body, and therefore, in their opinion, constitutes a breach of the State's duty to prevent torture and inhumane treatment of detainees. The lack of judicial supervision is even more severely significant in cases in which the Palestinian detainee is prohibited from meeting with a lawyer, contrary to international law. According to the Petitioners, the concern regarding the use of illegitimate means of interrogation against Palestinians is not a  mere concern, and they refer to reports that were published by human rights organizations in 2007. According to them, purely logistic considerations or administrative difficulties cannot justify the infringement of a human's right to liberty, equality and dignity.

 

The Respondents' Response

 

14.The Respondents' response was presented by Adv. Aner Helman. Even since the letters of response to the Petitioners' approaches, prior to the filing of the Petition, the Respondents stated that the issue of shortening the periods of detention in the Region is being examined in the framework of in-depth staff work that has commenced long ago. It was further written that the security legislation is based on security and public order considerations and this is also true with respect the laws of detention, and that the differences between the law customary in the Region and the law customary in the State of Israel in this context derive from relevant security considerations.

 

15.In the response which was filed on the Respondents' behalf to this Court on January 9, 2010, the Respondents reiterated their claim that it is not for no reason that the periods of detention prescribed in the Security Provisions Order are different than those prescribed in Israeli law. According to the Respondents, the nature of an area that is held under belligerent occupation (occupatio bellica), even if long-term occupation, necessitates that the special security conditions prevailing therein dictate that different arrangements be prescribed than those customary in the occupying state.

 

16.For example, due to the security situation, the ability to move in the Region is limited, and at times, in light of security conditions which delay or prevent reaching the location, it is not possible to perform interrogations expeditiously, or even at all, in the area; some of the areas of the Region are under Palestinian control and it is not possible or very difficult to reach witnesses and suspects living there; in many cases, suspects who need to be interrogated find shelter in areas that are under Palestinian control making their interrogations and the interrogations of their accomplices who were arrested by the security forces, difficult; in most of the cases, the potential witnesses refuse to cooperate with the security forces, making interrogations difficult; in security interrogations the persons being interrogated acted out of nationalist and ideological motivation, and their interrogation is very difficult. Naturally, there is a minimal period of time that is required until their interrogations will produce initial evidence to support the intelligence information that has been received. At times, a certain interval is required between the time information is received and the time it can be used against the party being interrogated, since using intelligence information very soon after its receipt could "burn" the source of information and at times could even risk his life; in a large share of the security interrogations it is not possible to determine the location and time of the arrest in advance, resulting in the delay of the initial interrogation and it being more difficult; all of the detainees who are suspected of committing severe security offenses are transferred to one of four interrogation facilities which are located in Israel for their interrogation. At times, such transfer, in and of itself, requires not insignificant amounts of time. It is also necessary to exhaust the initial interrogation of the person being interrogated before bringing him before a judge, so as to avoid the possibility of him escaping to the Region; at times it is necessary to arrest many hundreds of people, like for example during the period of the "Defensive Shield" operation in 2002, and it is not possible to prepare to bring all of them before a judge during a short period of time.

 

17.The Respondents argue that these grounds require determining that it is appropriate to allow detaining a suspect for a reasonable period of time that is required in order to formulate initial evidentiary material prior to bringing him before a judge. The Respondents further state that international law does not limit the number of days that a person may be detained without judicial involvement, but rather expresses a principle pursuant to which the decision regarding the detention should be brought to a judge without delay.

 

18.Having said that, the Respondents notified that in recent years staff work has been conducted in the IDF and further on in the Ministry of Justice, by the Deputy Attorney General (Criminal Matters), together with the Deputy Attorney General (Special Assignments) and the Deputy Attorney General (Consultation), which is meant to examine the possibility of shortening the maximum periods of detention in the Region. The Respondents updated that in the framework of the staff work, a decision was reached that, considering the current security situation, at this time, it is possible to significantly shorten the maximum period of detention until bringing a detainee before a judge, however it is not appropriate to make the arrangement which shall be applicable in the Region in this matter the same as the arrangement which is applicable in Israel. The Respondents specified the manner of shortening the periods of detention:

 

19.With respect to offenses that are not security offenses, it was decided that, as a rule, the authority of an initial detention until presentation before a judge shall be for 48 hours; additionally, it will be possible to delay the presentation of the detainee before a judge for an additional 48 hours, as per the decision of an administrative authority, if there is a special cause, such as, for example, urgent acts of interrogation. It was further decided that the arrangement shall be re-examined upon the lapse of two years from the effective date of the amendment of the Order. As for detainees of security offenses, it was decided that the rule that shall be prescribed is that the initial period of detention until presentation before a judge shall be 96 hours at most, with an administrative party being able to extend such period by 48 additional hours, in cases in which the Head of the Interrogation Department at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in substantially prejudicing the interrogation. It was also decided that in very special circumstances it will be possible for an administrative party to extend the period of detention until being brought before a judge by 48 additional hours, beyond the above said 11(sic.) hours (six days), in cases in which the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in harming the performance of an essential act of interrogation that is meant to prevent harm in human lives. Considering the concern that was raised by security entities regarding the operational implications of these modifications, it was determined that this arrangement would be examined upon the lapse of two years from the date the amendment to the Order became effective.

 

20.It was further decided that the extension of an initial detention by a judge will not exceed 20 days and that it will be possible to re-extend the detention for additional periods which shall not exceed 15 additional days each. The extension of detention prior to the filing of an indictment which exceed 60 days shall be subject to the approval of a senior legal authority in the Region.

 

21.The Respondents added that in the framework of the staff work it was decided to add a provision to the Order pursuant to which if a person was arrested and his interrogation ended he shall be released from detention, however, if the prosecutor declared that they are about to file an indictment against him and the court was convinced that there is prima facie cause to request his detention until the end of proceedings, the judge may extend the detention on this  ground for a period which shall not exceed eight days. It was also decided that at the initial stage the period of detention until the beginning of trial shall be 60 days, and that the possibility of shortening this period to 30 days shall be examined upon the lapse of two years.

 

22.The Respondents further updated that it was decided to amend Section 44 of the Security Provisions Order so that with respect to offenses that are not security offenses, the period stated for holding the first hearing before a judge in the matter of a detainee who is under detention until the end of proceedings shall be one year from the date the indictment was filed. With respect to security offenses, the period currently stated in the Order – two years – shall remain in effect, and this matter shall also be examined upon the lapse of two years from the time the arrangement shall become effective. The Respondents estimated that the required adjustments to the modifications shall last approximately six to nine months and that the Order shall be amended accordingly, immediately thereafter.

 

23.The Respondents requested to dismiss in limine the relief requested in HCJ 4057/10 to make the periods of detention of minors in the Region the same as the periods of detention of minors in Israel, and claimed that the Petitioners did not exhaust the proceedings in this matter. According to them, this matter should not be mixed with the matter of the detention of adults in the Region. According to the Respondents this is a "premature petition" since it was already decided to conduct staff work on this matter as well.

 

Hearing of the Petititons and Update Notice

 

24.On January 12, 2011, a hearing took place in this Court before President D. Beinisch and Justices N. Hendel and I. Amit. At the end of the hearing it was decided that within five months the Respondents would file an update notice together with a draft of the Order which shall be issued in accordance with the principles that were formulated. The Bench of Judges even instructed the Respondents to consider its remarks when drafting the Order, especially with respect to the duration of the period of time until first bringing a detainee before a judge and with respect to the period of detention until the end of proceedings after an indictment has been filed.

 

25.On June 1, 2011, the Respondents filed an update notice, and according thereto, in an additional meeting that was held following the court hearing, it was decided to shorten the period until a detainee, who is detained until the end of proceedings for security offense, is brought before a judge, from two years to 18 months. It was further decided that it is vital that the manner of the actual implementation of the arrangement which the staff work decided upon with respect to the maximum period of detention until bringing a suspect before a judge, be examined for a period of approximately two years, before an additional re-examination of the matter. In the framework of this notice, the Respondents added that it is essential, prior to actually shortening the detention periods in the Region, to examine the developments that were scheduled to occur in the Region in September 2011 onwards, in light of the Palestinian Authority's notice that it intends to approach the United Nations General Assembly this month with a request to recognize the "State of Palestine". The Respondents updated that the staff work has not yet been completed and that they expect the Order to be amended during the month of January, 2012.

 

26.Both the Petitioners in HCJ 3368/10 and the Petitioners in HCJ 4057/10 responded to that stated in the update notice. According to them, the shortening of the detention period that the Respondents declared is insignificant and cannot cure the severe defects and infringement of rights that are embodied in the security legislation in the Region. According to the Petitioners, the changes that were made shall not have any practical impact on the arrest procedures of Palestinians who are residents of the Region and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement in the infringement of the right to liberty, of due process and of the presumption of innocence. The Petitioners reiterated their claim that judicial review is an integral part of the arrest process and that there is no justification to delay the judicial review for such an extended period of time. They argued that the initial detention period and the detention until the end of proceedings period constitute an arbitrary infringement of the right to liberty and therefore they insist on their petitions to issue an order nisi in the Petitions and to instruct the Military Commander in the Region to determine periods of detention that correspond with international standards and with those that are customary in Israel. The Petitioners further claimed that there is no reason not to amend the Order due to uncertain future developments.

 

27.The Petitioners in HCJ 4057/10 added that the list of security offenses that is included in the Order spans over dozens of sections and includes offenses such as conducting a procession or an unlicensed meeting, waving a flag without a permit, printing "material which has political significance" without a license from the Military Commander, and the like. The list also includes many "public order" offenses such as throwing objects, disturbing a soldier, breaching curfew or a closed military zone order and the like, thus making the arrangement that relates to offenses that are not security offenses predominantly theoretical. In their opinion, the appropriate criterion for determining the periods of detention is the timeframe applicable to Israelis who also live in the Region. The Petitioners also drew attention to the inconsistencies between the Respondents' notice and the draft of the Order. According to them, the amendment of the Order should not be avoided due to a concern regarding unusual events.

 

Additional Update Notices

 

28.On November 22, 2011, the Respondents filed an additional update notice,  according to which, it was told in meetings that were held at the Deputy Attorney General (Criminal Matters), that the IDF has completed the staff work examining adding the necessary staff positions at the military courts and at the Judea and Samaria Region Prosecution in order to shorten the detention period in the Region and that a decision was even already reached to add the new necessary staff positions, subject to the amendment to the Order becoming effective and to the time required for the procedure of selecting and appointing new judges to the court. It was also clarified that due to a dispute between the Ministry of Finance and the Ministry of Public Security regarding the source of the budget, there is still no budgetary solution for the Police and Prison Service's needs for implementing the staff work and that a few additional months shall be required after such a solution is found in order to recruit and train personnel and purchase and receive additional vehicles. On December 22, 2011, the Respondents filed an additional update notice informing that the dispute regarding the budget source was still unresolved, and this is what they informed on January 16, 2012, as well.

 

29.On February 6, 2012, the Respondents filed an additional update notice that the budget dispute regarding financing the detention periods in the Region was resolved. The Respondents further updated that on December 2, 2012 (sic.), the Commander of the IDF Forces in the Region signed the Security Provisions Order (Amendment no. 16) (Judea and Samaria) (no. 1685) 5772-2012 (hereinafter: the "Amending Order"), which shortened the period of detention in the Region in accordance with the conclusions of the staff work that had been done, and prescribed that its provisions shall become effective gradually, such that the last changes shall become effective on August 1, 2012.

 

The Petitioners' Response

 

30.The Petitioners in HCJ 3368/10 welcomed the amendments made to the Amending Order. However they claimed that a review of the language of the Amending Order reveals that there are significant differences between the changes declared in the Respondents' response and the actual language of the Amending Order. For example, the Petitioners noted that a security offenses detainee can be held under detention for two periods of 96 hours, i.e. eight days, and only be brought before a judge upon the completion thereof, and the same is true in the case of a non-security offenses detainee. The Petitioners claimed that the shortening of the detention period that was applied is insignificant and does not cure the severe infringement of the detainees' rights under the security legislation in the Region. They claimed that in the case of security offenses, which are the majority of the offenses that are addressed in the Region, the Amending Order does not, in effect, shorten the period of detention before initial judicial review. The Petitioners added that the Amending Order shortens the period of detention until the end of proceedings in security offenses in an insignificant manner from two years to a year and a half, which can be extended indefinitely, and that no change was made with respect to minors and that there is no distinction between a minor and an adult with respect to the detention laws. According to the Petitioners, these changes shall hardly have any practical impact on the procedures of detaining the Region's residents and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement with respect to the infringement of the right to liberty, the right to due process and the presumption of innocence. The Petitioners mentioned with respect to the initial detention period, that judicial review is an integral part of the arrest process and that this is the stage where it is necessary to present the court with only reasonable suspicion which is meant to exist upon the actual arrest. Therefore, in their opinion, there is no justification for delaying the judicial review for such a long period.  Interrogation difficulties should be presented before the judge to justify the extension of the detention, including in security offenses.

 

31.The Petitioners further claimed that the European Court of Human Rights ruled that an initial detention period of four days without judicial review breaches the right to be free of arbitrary detention. Therefore they are of the opinion that a period of detention of four to eight days before judicial review constitutes an arbitrary infringement of the right to liberty in violation of the Basic Law: Human Dignity and Liberty, and is illegal. According to them, a period of detention of a year and a half infringes the defendant's presumption of innocence and constitutes an arbitrary infringement of his right to liberty, since it is based only on prima facie evidence and amounts to an infringement of his right to a fair trial, as it constitutes a negative incentive to conduct trials and examine the charge.

 

32.The Petitioners in HCJ 4057/12 also responded to the Respondents' update notice. They also welcomed the Respondents' notice regarding the amendments made to the Amending Order but claimed that they cannot cure the flaw of illegality embedded therein, since even after the amendment, the Palestinian residents of the Region will continue to be subject to exaggerated and discriminating periods of detention which severely infringe their rights. The Petitioners emphasized again that immediate and frequent judicial review of arrest for interrogation purposes is a necessary condition for the reasonableness, proportionality and legality of the detention and that in the absence thereof, it is not possible to prevent arbitrary detention, it is not possible to protect the rights of the suspect and it is not possible to ensure a fair criminal procedure. The Petitioners reiterated their argument that an arrest that is not arbitrary is meant, to begin with, to be based on a reasonable suspicion and that the judicial review constitutes a part of the formulation of the legality thereof. According to them, the special difficulties that characterize the interrogations in the Territories are not at all relevant to examining the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge. According to the Petitioners, the Respondents did not provide grounds which could justify the discriminating policy also with respect to the other periods of detention. The Petitioners stated that the Respondents did not refer to minors in their notice and according to them, the list of security offenses is still "all inclusive", and a situation in which an Israeli detainee who lives in the Region and is suspected of a security offense must be brought before a judge within 24 hours while a Palestinian must be brought before a judge only after an a-priori period of four days, cannot be justified.

 

In light of President D. Beinisch's retirement, President A. Grunis appointed me to hear the Petition on March 14, 2012.

 

Additional Hearing of the Petition

 

33.On April 23, 2012, we held an additional hearing of the Petition, in which the Petitioners presented their claims regarding four matters: the time until bringing a detainee before a judge, the detention of minors, the definition of security offenses pursuant to the Order, and the period of the extension of a detention until the end of proceedings. At the beginning of the hearing, the attorney for the Respondents filed the Amending Order with respect to Section 31 of the Order. According to the amendment, a detention prior to being brought before a judge in special circumstances was limited to a period which shall not exceed 96 hours from the time the suspect was arrested, and can, in special circumstances, specified in the Order, be repeatedly extended by two additional days at a time, in accordance with approval by very senior echelons.

 

34.With regard to minors, it was discovered in the hearing that a new Security Provisions Order was meant to come into effect in August, 2012, and the age of minors in the Region was also recently changed to 18 years of age (instead of the previous 16 years). The Respondents requested to monitor the change for one year from the time it became effective, to monitor the wardens' training procedures, and to consider the state of affairs following the lapse of such period. As such, we ruled that the Respondents shall file update notices with respect to the results of the change by no later than December 1, 2012.

 

35.As for the matter of the offenses defined as security offenses, we ruled in a decision at the end of the hearing that the matter was not raised in the Petitions and an order nisi was not requested with respect thereto, other than in the framework of the responses to the Respondents' update notices. Having said that, we found it appropriate that the Respondents consider our remarks, especially the question whether it is appropriate to relate to the security offenses as one assemblage rather than excluding some of them from the definition of security offenses that appear in the Third Addendum of the Security Provisions Order.

 

36.With respect to the detention until the end of proceedings, the Respondents' attorney notified that it was decided to shorten the period of detention to 18 months in security offenses. Since we were of the opinion that this is still a lengthy period and it is appropriate that the matter be re-examined, we instructed that this be addressed in the framework of the update notice that was to be filed. We also ruled that after filing the update notice, the Petitioners would be able to respond thereto, and that we would thereafter decide regarding the further treatment of the Petitions.

 

Additional Update Notice

37.On December 16, 2012, the Respondents filed an additional update notice. First of all, the Respondents informed that the review of the results of the shortening of the periods of detention in the Region indicated that by dedicating effort the Respondents have managed to implement the shortened periods of detention as prescribed in the Amending Order. The Respondents added that following the remarks of this Court in the hearing and the decision it issued at the end of the hearing, the Commander of the IDF Forces in the Region amended the Security Provisions Order regarding the detention of minors, the definition of the security offenses and the period of extension of detention until the end of proceedings:

 

38.With respect to the detention of minors, the Respondents updated that it was decided to act to amend the security legislation and to prescribe special periods of detention until being brought before a judge and until the end of proceedings, for minors in the Region, which as a rule, shall be shorter than the corresponding periods of detention for adults. In this context, the Respondents informed that on November 28, 2012, the Commander of the IDF Forces in the Region signed two new amendments to the Security Provisions Order: Security Provisions Order (Amendment no. 25) (Judea and Samaria) (no. 1711), 5772-2012 (hereinafter: "Order no. 1711"). The Respondents noted that according to Order no. 1711, as from April 2, 2013, the maximum period of detention of a "youth", as defined in the Security Provisions Order, i.e. a person who is at least 12 years but not yet 14 years old, until being brought before a judge shall be 24 hours from the time of arrest, with a possibility of an additional 24 hours extension due to an urgent act of interrogation. It was decided that this period shall apply to the detention of a "youth" for both security offenses and offenses which are not security offenses. Additionally, the Respondents noted that beginning from such time, the maximum period of detention of a "young adult", as defined in the Security Provisions Order, i.e. a person who is at least 14 years old but not yet 16 years old, until being brought before a judge shall be 48 hours from the time of the arrest, with a possibility of an additional 48 hours extension due to an urgent act of interrogation. It was decided that this maximum period of detention shall apply to the detention of a "young adult" for both security offenses and offenses that are not security offenses. The Respondents further noted that such maximum period of detention applies also to minors over the age of 16 and to adults in the Region who are detained for offenses that are not security offenses.

 

39.According to the Respondents this is a very significant shortening of the maximum period of detention until being brought before a judge for all suspects aged 12-14 and for suspects of security offenses aged 14-16, compared to the periods of detention until being brought before a judge for adult suspects for the said offenses, which were also significantly shortened in the framework of the Amending Order. The Respondents added that the maximum periods of detention until being brought before a judge which apply to adults shall continue to apply with respect to minors over the age of 14 for offenses which are not security offenses, and with respect to minors over the age of 16 for security offenses, as stated in the Amending Order.

 

40.With respect to the period of detention until the end of proceedings for minors in the Region, the Respondents further stated that Order no. 1711 prescribes that the period of detention until the end of proceedings for a minor, i.e. any defendant who is less than 18 years old, shall be only one year. Additionally, the detention of minors until the end of proceedings can be extended by a Military Court of Appeals judge, upon the lapse of a year of detention, for a period which shall not exceed three months, which the judge may re-order. It was noted that such provision applies with respect to minors who are accused of security offenses and offenses which are not security offenses.

 

41.As for the definition of security offenses, the Respondents updated that in the framework of the Security Provisions Order (Amendment no. 26) (Judea and Samaria) (no. 1712), 5772-2012 (hereinafter: "Order no. 1712"), approximately a third of the security offenses that were previously listed were removed from the Third Addendum of the Security Provisions Order which defines "Security Offenses", and one offense (offense under Section 222 of the Security Provisions Order) was added, and therefore, Order no. 1712 actually resulted in the significant shortening of the maximum periods of detention of those who are suspected and accused of the many offenses that were removed from the Third Addendum. The Respondents noted that there was a significant change even in the matter of adults since approximately a third of the offenses that were previously defined as "security offenses" are no longer defined as such, and therefore the period of detention until the end of proceedings for anyone suspected of committing them shall be 12 months rather than 18 months. The Respondents claim that the implementation of such significant changes in the various periods of detention necessitates granting an opportunity, prior to considering additional changes, to examine the implications thereof on the law enforcement system in the Region and on its ability to function. Therefore, it was decided that at this time it is inappropriate to change the periods of detention until the end of proceedings for adults in the Region. The Respondents were of the opinion that in doing so, a worthy balance was struck between all of the relevant considerations, while granting obvious preference to the rights of minor defendants over those of the adults.

 

The Petitioners' Responses

 

42.The Petitioners in HCJ 4057/10 responded to the Update Notice. They welcomed the significant shortening of the period of detention applying to minors aged 12-14 and the additional amendments of which the Respondents informed. However, in their opinion, the Petition has not yet been exhausted since even after the amendments, the periods of detention applicable to Palestinians in the Territories, minors and adults alike, remain exaggerated, discriminating and contrary to the law. According to them, to this day, the Respondents have still not raised any legitimate reason which could justify the continued severe discrimination in this matter between Palestinians and Israelis in the Region. According to the Petitioners, even after the amendments to the Order, it is possible to hold a suspect up to eight days without any judicial review, if he is suspected of an offense which is classified as a security offense, including offenses such as throwing rocks (including towards property) and organizing a protest without a license. Such an extended period of detention also applies to minors who are 16 years old or older. In offenses that are not security offenses, the bringing of a suspect before a judge can be delayed up to 96 hours, even when at hand is a minor who is 14 or 15 years old. The Petitioners mentioned that an arrest is meant to be based, to begin with, on a reasonable suspicion, and that the judicial review constitutes part of the formulation of the legality of the initial detention regardless of the severity of the offense. According to them, the difficulties that characterize the interrogations in the Territories are not relevant to the examination of the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge.

 

43.As for minors, the Petitioners claimed that even after the amendment of the Order it will still be possible to hold a minor aged 12 or 13 for an entire day until bringing him before a judge, or for two days if there is a need to perform an urgent act of interrogation, and a minor 14-15 years old can even be held under detention up to 96 hours for ordinary offenses, prior to being brought before a judge. This, as opposed to an Israeli 12 or 13 year old minor from the Region who must be brought before a judge within 12 hours or 24 hours in certain cases. The Petitioners added that even after the amendment, the prohibition against holding Israeli minors who live in the Region under detention until the end of proceedings, is not applied to minors under the age of 14. Additionally, a longer period of detention until the end of proceedings shall continue to apply to minors, a year as opposed to six months, and this period can be extended for longer periods of time, three months, compared to 45 days at a time under Israeli law. The Petitioners complained that the extension of a detention of a Palestinian suspect under the age of 14 or until his release without indictment, was not shortened.

 

44.The Petitioners added that despite the removal of approximately a third of the security offenses from the Third Addendum of the Order, it still includes a wide variety of offenses that do not justify lengthy periods of detention, such as, for example, the throwing of objects, including throwing rocks towards property, organizing protest without a license and the breach of a closed military zone order. According to them, leaving these offenses in the list was meant to serve considerations that are totally irrelevant to the interrogation needs, such as deterrence considerations. At the very least, leaving them in the list does not comply with the proportionality criterion. According to the Petitioners, there is no justification to hold Palestinian detainees who are suspected of security offenses up to 96 hours without judicial review, when according to the Amending Order judicial review can be delayed for up to six or eight days at terms that are much more lenient than those that are required for the detention of Israelis living in the Region and who are suspected of severe security offense. In their opinion, there is also no justification to set a longer period of time for the period of detention until the end of proceedings in security offenses. Determining a period of detention until the end of proceedings that is too long will result, in the Petitioners' opinion, in disproportionate infringement of the defendant's right to liberty and prejudices the fairness of the criminal process, particularly when the extended period is automatically pre-determined and does not require special approval. In their opinion, the expectation of lengthy detention could result in defendants admitting to that which is attributed to them only to avoid an extended stay in jail. According to them, the lack of stringent limits on the length of a trial allows a delay of justice which could even interfere with the discovery of the truth. The Petitioners stated that the matter of the definition of the security offenses did not appear in the Petition because the special periods of detention for security offenses were first prescribed by the Respondents in their response to the Petition. Therefore, the legality and the proportionality of the duration of the periods of detention for security offenses as well as for other offenses, constitute, so they argue, an integral part of the reliefs that were requested in the Petition to begin with.

 

45.The Petitioners reiterated their objections regarding the period of detention until the end of proceedings that applies to adults in security offenses, which was not shortened in the Amending Order, as well as with respect to holding a suspect up to eight days until being brought before a judge if detained in a "combat arrest", as stated in Section 33 of the Security Provisions Order. The Petitioners emphasized their claim that the proper criterion to examine the reasonableness and proportionality of the periods of detention that apply to the Palestinian residents of the Territories is the timeframe that applies to Israelis also living in the Region.

 

46.The Petitioners in HCJ 3368/10 notified that they join that which was stated in the response of the Petitioners in HCJ 4057/10. According to them, the differences between the legislation in the Region and the legislation in Israel will remain unfathomable even after the changes that were made to the Order, which in and of themselves are welcome.

 

An Additional Hearing of the Petition

 

47.In a hearing we held on May 23, 2013, the parties reiterated their main arguments: The Petitioners claimed that the amendments made in the Amending Order are not sufficient and that they maintain their petitions. The attorney representing the State requested to separate the matter of the detention of minors from the Petitions being addressed and requested to enable the system to examine the implementation of the amendments to the Order over a reasonable period of time in order to ensure that "things work" and adopt educated decisions. The attorney representing the State stated that upon the lapse of the period, the periods of detention will be re-examined, as the system does not rest on its laurels.

 

48.On October 29, 2013, the Respondents filed an additional update notice. The Respondents informed that on September 30, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 35) (Judea and Samaria) (no. 1727) (hereinafter: "Order no. 1727"), which came into effect on the date of the signing thereof. According to Order no. 1727, the provisions of Article G, Chapter E of the Security Provisions Order, including, the age of minors in the Region, shall from now on be "permanent provisions". The Respondents also updated that since the last hearing of the Petitions, and further to additional staff work, on September 1, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 34) (Judea and Samaria) (no. 1726), 5773-2013 (hereinafter: "Order no. 1726"), which came into effect on October 6, 2013. Order no. 1726 introduced an additional significant shortening of the periods of judicial detention of minors for interrogation purposes, resulting in a Military Court judge being able to order the arrest of a minor for interrogation purposes for a period of 15 days and extend the detention for additional periods which shall not exceed 10 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 40 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 40 days, for additional periods which shall not exceed 90 days each.

 

49.Additionally, Order no. 1726 prescribed periods of judicial detention for interrogation purposes for adults that are similar to those applicable in Israel, such that a Military Court judge may order the arrest of an adult suspect for interrogation purposes for a period of 20 days and extend the period for additional periods which shall not exceed 15 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 75 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 75 days, for additional periods which shall not exceed 90 days each.

 

50.According to the Respondents, it is evident that following the coming into force of Order no. 1726, the maximum judicial detention periods of adults for interrogation purposes in the Region are now identical to the periods of detention for interrogation purposes of adults in Israel, mutatis mutandis, except for two matters: one, the maximum period of the first judicial detention order (20 days in the Region compared to 15 in Israel), and two, the requirement to receive the approval of the Attorney General for the request to extend the detention for interrogation purposes beyond 30 days in Israel, compared to the approval of the Military Advocate General, which is only required beyond 75 days in the Region. Considering the previous update notices and this present one, the Respondents are of the opinion that the Petitions have exhausted themselves and should be dismissed.

 

51.On December 30, 2013, the Petitioners in HCJ 4057/10 filed a response to the update notice. According to them, the notice reflects the flawed approach which is guiding the Respondents, who on the one hand prescribed discriminating and exaggerated periods of detention for Palestinians and on the other hand, ostensibly adopted the principle of equality. The Petitioners welcome the Respondents' decision to distinguish between minors and adults with respect to the periods of judicial detention for interrogation purposes and to somewhat shorten the periods applicable to Palestinian minors, however object to the arbitrary determination of longer periods of detention for Palestinian minors as opposed to the periods of detention prescribed for Israeli minors living in the Region and compare them. The Petitioners add that the differences between to the periods of judicial detention for adults are not solely "technical", since while as a rule an Israeli adult suspect in the Region cannot be detained for more than 30 days with respect to the same event, a Palestinian adult suspect can be detained for 75 days and his detention can even be extended without adopting the basic rule pursuant to which upon the lapse of 75 days, "he shall be released from detention, with or without bail". According to the Petitioners, the Respondents have not yet, to this day, provided any legal reasons for the discriminating periods of detention which are imposed upon the Palestinians.

 

Discussion and Ruling

 

52.A person's right to liberty is a constitutional right that is grounded in Section 5 of the Basic Law: Human Dignity and Liberty, where it is prescribed that: "There shall be no deprivation or restriction of the liberty of a person by imprisonment, detention, or any other way." The importance and centrality of the right to liberty in a democratic regime also stems from the implications of denying the liberty for the injured person and for the damage that could be caused thereto as a result thereof. The denial of liberty is not expressed only in a person merely being subject to the custody of the State, but also is felt each and every day, during the period when a person is subject to the rules of conduct and discipline that are customary in the place of custody and which also limit his liberty (see HCJ 2605/05 The Law and Business Academic Center v. The Minister of Finance, paragraph 25 of President D. Beinisch's decision (November 19, 2009)). The right to due process prior to a person's liberty being denied derives from the right to liberty, and it is even warranted that he will be given the opportunity to respond and voice his arguments prior to this fundamental right being denied (LCrimA 837/12 The State of Israel v. Gusakov, paragraph 29 (November 20, 2012)). On the other hand, it is in the public interest to expose criminals and prevent crime, and certainly to try and thwart security offenses. Therefore, it is necessary to strike a balance in the constant tension that exists in the Israeli reality, between security and protecting the rights of someone suspected of committing an offense. This tension emerges also in the matter before us – the periods of detention of Palestinians who are residents of the Region.

 

53.As mentioned, the purpose of the laws of detention, including in the Region, is to strike a balance between the public interest of exposing and preventing crime and protecting the rights of the suspect. One must remember that the Region has unique characteristics which derive from the security reality and the essence of the military rule applicable there, from the security needs and from the difficulties of enforcing the law, in light of the absence of Israeli control in part of the area. There is no dispute that constant judicial review of the process of arrest for interrogation purposes is important for the protection of human rights, however the continuity of the interrogation is important for the purpose of realizing the objective of the interrogation: exposing the truth. Exposing the truth quickly and efficiently is especially important when the security of the State and its citizens are at stake.

 

54.The dilemma, therefore, is clear: on the one hand, the conduct of a proper legal procedure is an essential element to secure the proportionality and constitutionality of an arrest for interrogation purposes, and in principle, the appearance of the suspect before a judge should not be regarded as an obstacle, but rather as a fundamental condition for an effective and constitutional arrest for interrogation purposes (CHR 8823/07 Anonymous v. The State of Israel, paragraph 32 (February 11, 2010)). This follows from the customary fundamental approach that judicial involvement is an integral part of the arrest process. It is not "external" judicial review of the arrest, but rather an integral part of the formulation of the arrest itself. This is a constitutional approach that views the judicial involvement in the arrest procedure an essential part of the protection of individual liberties:

 

"The judicial involvement is the barricade against arbitrariness: it is warranted from the principle of the rule of law (see Brogan v. United Kingdom (1988) 11 EHRR 117, 134). It guarantees that the delicate balance between individual liberties and the security of the general public – a balance that lies at the basis of the laws of arrest – shall be preserved (see ADA10/94 Anonymous v. The Minister of Defense, IsrSC 53(1) 97, 105)." (HCJ 3239/02 Marav v. Commander of IDF Forces in Judea and Samaria, IsrSC 54(2) 349, 368 (2003))."

 

The meaning of this is that it is necessary to adjust the interrogation methods to the need to interrupt them at a certain stage of the interrogation in order to allow an effective and fair judicial procedure to take place. An interrogation that takes place over a period of time, when the person being interrogated is in detention and cannot appear before the court and voice what he has to say, could result in disproportionate infringement of human dignity and liberty.

 

On the other hand, we cannot ignore the fact that the security legislation which is the subject of our discussion was created in light of a complex security situation in a territory that is occupied under belligerent occupation (occupatio bellica), that the special security conditions applicable there dictate the determination of arrangements that are different than those that are customary in the occupying state. This reality has, inter alia, resulted in the detention of Palestinian suspects prior to being brought before a judge, for periods of time that are longer than those of Israeli suspects. In this context, it is important to remember, for example, as the Respondents have clarified, that due to the security situation, the ability to move in the Region is limited and that part of the area is under Palestinian control. The security conditions could, therefore, prevent, or delay, the interrogation parties from reaching the arena, and could make the collection of testimony and evidence more difficult. Additionally, according to the Respondents, potential witnesses do not cooperate with the interrogation parties, either due to their sympathy towards the suspects or due to their hostility towards the State of Israel. According to the Respondents this also creates genuine difficulty in interrogations and greatly delays the ability to formulate initial evidence against the suspect. Furthermore, intelligence material that was received has to be used carefully and often it is necessary to wait before using it so as not to give away the source of the information or god forbid risk his life. Additionally, there is an enhanced concern in the Region of fleeing into areas that are under the Palestinian Authority's control, such that it will not be possible re-arrest such person who was released from detention. In such conditions, the interrogation of the detainees is complicated and complex and at times a longer period of time is necessary to exhaust the interrogation before bringing the detainee before a judge.

 

55.As mentioned, the Petitioners claim that the balance between the need to maintain the security of the general public and the State and the need to protect human rights, dignity and liberty, which is reflected in the Security Provisions Order is not the proper balance even after the amendment thereof, while the Respondents request to examine the implementation of that which is stated in the Amending Order before being able to reach any conclusions on the matter. This is the state of affairs in the case at hand. In any case, it appears that the parties to the Petition share the opinion that judicial review is an essential tool for protecting the legality and propriety of the arrest and share the aspiration to shorten the periods of detention of the Palestinian residents of the Region as much as possible and to apply statutory arrangements thereon which are as similar as possible to those that are customary in Israel, in terms of the degree of protection they provide to the suspect's or defendant's rights. This was also the spirit of what was expressed in this Court, when the matter was presented before it in the past. The Supreme Court expressed its opinion and ruled that:

 

"It is time to apply statutory arrangements in the Military Courts which are similar to those prescribed in the Arrests Law in Israel, in order to protect the rights of defendants; all subject to the unique characteristics of the Region. This is the case with respect to dictating periods of a detention from the time of filing an indictment and until the commencement of the trial (Section 60 of the Arrests Law which does not have a corresponding statutory arrangement in the Region); with respect to limiting the period of the detention between the end of interrogation and the filing of an indictment (Section 17(d) of the Arrests Law, a matter which also does not have a corresponding statutory arrangement in the Region); and with respect to shortening the periods of detention prescribed in the security legislation that applies in the Region, as they are significantly longer than those prescribed in the Arrests Law in Israel" (HCJ 10720/06 Farid v. The Military Court of Appeals (February 11, 2007).

 

56.Indeed, a consequence of this aspiration is the changes that were made to the arrangements of arrests of Palestinian detainees who are residents of the Region. During the course of the Petition, the Respondents took far reaching measures with respect to shortening the said periods of detention, so as to make them more similar to the periods of detention customary in Israel. For the sake of good order and in order to clarify the matter, I shall present the changes that were made to the Security Provisions Order since the Petitions were filed, in the following table:

 

 

 

	Previous Law	New Law (the Amending Order)
Initial detention until being brought before a judge for offenses that are not security offenses	Eight days	Minors: 12-14 year olds: 24 hours 14-18 year olds: 48 hours Adults: 48 hours + an option to extend up to 96 hours
Initial  detention until being brought before a judge for security offenses	Eight days	Minors: 12-14 year olds: 24 hours 14-16 year olds: 48 hours 16-18 year olds: 96 hours Adults: 96 hours + an option to extend up to 8 days
Judicial  detention for interrogation purposes prior to filing an indictment	30 days Can be extended for additional periods which shall not exceed 30 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 90 days. Can be extended beyond the 90 days for three additional months.	Minors: 15 days Can be extended for additional periods of up to 10 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 40 days. Can be extended beyond the 40 days for additional periods which shall not exceed 90 days each.   Adults: 20 days Can be extended for periods of up to 15 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 75 days. Can be extended beyond the 75 days for additional periods which shall not exceed 90 days each.
"Bridge Detention" for the purpose of filing an indictment	Unlimited	Eight days
Detention after filing indictment and before the commencement of the trial	Unlimited	60 days
Detention until the end of proceedings in offenses that are not security offenses	Two years Extensions of up to six months each.	Minors: A year Extensions of up to three months each. Adults: A year Extensions of up to six months each.
Detention until the end of proceedings in security offenses	Two years Extensions of up to six months each.	Minors: A year Extensions of up to three months each. Adults: 18 months Extensions of up to six months each.

 

 

 

57.The difference between the new law (the Amending Order) and the law existing in Israel can be seen in the table below:

 

	Initial detention until being brought before a judge	Detention before indictment	Detention until end of proceedings	"Bridge  Detention " for purpose of filing an indictment
In the Region – Offenses that are not security offenses	48-96 hours	20-75 days	A year + extensions of up to six months each.	Eight days
In Israel - Offenses that are not security offenses	24-48 hours	15-30 days	Nine months + extensions of up to three months each.	Five days
In the Region – Security offenses	96 hours – 8 days	20-75 days	18 months + extensions of up to six months each.	Eight days
In Israel – Security offenses	24-96 hours	20-35 days	Nine months + extensions of up to three months each.	Five days
Minors in the Region – 12-14 years old	24-48 hours	15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in the Region – 14-16 years old	48-96 hours	Offenses that are not security offenses: 15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in the Region – 16-18	Like adults: 48-96-8 days	Offenses that are not security offenses: 15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in Israel – 12-14	12-24 hours	20-40 days	Will not be arrested until the end of proceedings	Five days
Minors in Israel – 14-18	24-48 hours	20-40 days	Six months + extensions of up to 45 days each.	Five days

 

58.The tables I have presented above illustrate the significant changes the Respondents made in the matter at hand. For example, the current maximum period of detention until being brought before a judge for offenses that are not security offenses is 48 hours from the time of the arrest, with an option of extension as per the decision of an administrative authority for additional periods which shall not exceed 48 additional hours due to urgent acts of interrogations. In security offenses the maximum period of detention until being brought before a judge is 96 hours from the time of arrest, with an option of extending the detention by 48 additional hours by an administrative party in unusual circumstances, in which the head of the Interrogation Department at the Israel Security Agency was convinced that the interrogation could be substantially prejudiced. In most special circumstances, it is possible to extend the detention by an additional 48 hours (beyond the said six days), when the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation could result in harming the performance of an essential interrogation that is meant to save human lives. The Respondents repeatedly emphasized in their arguments that the new arrangement requires preparations and is scheduled to be reexamined again upon the lapse of two years from the time the Order becomes effective, based on the experience that shall accumulate during such period.

 

59.A significant change also occurred with respect to the matter of minors. We shall remind that before the Petitions were filed, there was no distinction at all between minors and adults in all of the periods of detention in the Region. Today, the age of minority in the Region increased from 16 to 18, and special arrangements were prescribed for minors based on a division into a number of age groups. Order no. 1711 provides that the maximum period of detention until bringing a "youth", i.e. a person who is at least 12 years old by not yet 14 year old, before a judge, both for security offenses and for offenses that are not security offenses, shall be 24 hours from the arrest, with a possibility of extending by an additional 24 hours due to urgent acts of interrogation; and that the maximum period of detention until bringing a "young adult", i.e. a person who is at least 14 years old but not yet 16 years old, before a judge, both for security offenses and offenses which are not security offenses, shall be 48 hours from the time of the arrest, with a possibility of extending by an additional 48 hours due to urgent acts of interrogation.

 

60.As for the definition of security offenses, the distinction between security offenses and offenses that are not security offenses for the purpose of the periods of detention in the Region was made by the Respondents only after the Petitions before us were filed. Therefore, the Petitioners' objections regarding this matter were not raised in their Petitions, but rather only in the framework of responses to the Respondents' update notices. The dispute regarding which offenses shall be defined as security offenses, is directly and closely linked to the reliefs that were requested in the Petitions, and in fact is a consequence of these reliefs. Indeed, we found it appropriate that the Respondents consider our remarks in the hearing that was held in the Petitions, inter alia, regarding the question whether it is proper to relate to the security offenses as one assemblage rather than excluding some of them from the Order's definitions. Consequently, the Respondents removed a third of the security offenses listed in the list in the Addendum of the Security Provisions Order and this is to be welcomed. If and to the extent the Petitioners still have objections regarding the offenses listed in the Addendum, they are entitled to voice their objections separately and it is inappropriate to further discuss this matter in the framework of the Petitions before us, which already encompass many matters.

 

61.Now, therefore, the staff work that was performed jointly with the Ministry of Justice and the Prime Minister Office produced a welcome change in the periods of detention listed in the Security Provisions Order. The change is meant to reduce, as must as possible, the infringement of the rights of the Palestinian detainees. There is no doubt that the State came a long way and significantly and even dramatically shortened the periods of detention applicable to the Palestinian residents of the Region. It is worthy to note the many discussions and long meetings that the State held with the IDF and the Ministry of Justice, together with other government ministries, until reaching the results which are expressed in the Amending Order (and in this respect, the Petitioners' achievements are invaluable. Their efforts to shorten the periods of detention of the Palestinian residents of the Region, bore significant fruit and are commendable).

 

62.So, considering the differences that stem from the different conditions between Israel and the Region, and in light of the dramatic changes that were just recently made, the "on site" implementation of which must be examined over a period of time – we are of the opinion that the current detention periods which were prescribed for adults, who are suspected of committing security offenses, in the time period before the filing of an indictment – are reasonable and proportionate, and therefore there is no cause for our involvement in this context at the current time. We shall mention that the Respondents requested to examine how the system adjusts to the changes that were made in the Security Provisions Order over a reasonable period of approximately two years, and it is presumed that upon the lapse of the period and in accordance with the on-site reality, the option of further shortening the mentioned periods of detention shall be reconsidered. We therefore assume that the Respondents' policy shall be re-examined from time to time in accordance with the security situation assessments and that if and to the extent it shall be possible to formulate reliefs these shall be applied in the future by the Respondents accordingly, and the periods of detention prescribed in the Amending Order shall be further shortened. Obviously, the Petitioners have the option of voicing their objections regarding the mentioned periods of detention, also upon the lapse of the "adjustment period".

 

63.Having said that, and without making light of the efforts the Respondents exerted and the important changes they made following the filing of the Petitions, we are not comfortable with three central matters (which partly overlap): Firstly, the periods of time in which Palestinian minors who are residents of the Region can be detained. Indeed significant changes were also made with respect to the population of minors, as specified above, however, in light of the special caution and sensitivity that must be applied towards people who are not yet adults, we are of the opinion that it is necessary to continue to monitor what is being done in their matter. The second matter that is not yet exhausted in the current Petitions is the periods of detention that was prescribed for Palestinians who are suspected or accused of offenses that are not defined as security offenses. The reasons presented in the Respondents' response, in its various stages, did not convince us of the need for such long periods of detention for "ordinary" criminal offenses. This is true also with respect to the third matter of detention until the end of proceedings of both minors and adults, in security offenses and offenses that are not security offenses (including detention after filing an indictment and prior to the commencement of the trial, which is currently 60 days). The circumstances and constraints which the Respondents indicated, by virtue of which more extended periods of detention are required in the Region, relate primarily to the stage of interrogation and collection of evidence and not to the stage of conducting the trial, after the indictment has been filed. In light of these difficulties, we considered issuing an order nisi with respect to the three mentioned matters, however at this stage we decided to leave the Petitions pending and to instruct the Respondents to reconsider how to advance these matters and give notice to such effect in the form of an update notice which is to be filed by September 15, 2014.

 

In summary, in all that relates to the maximum periods of detention for adults suspected of committing security offenses, at the stage before an indictment is filed; and in the scope of the offenses defined as security offenses – the Petitions are denied without an order for expenses (subject to that stated in paragraphs 60 and 62). However, in all that relates to the periods of detention of minors, the periods of detention of adults in offenses that are not security offenses; and the period of detention until the end of proceedings (of minors and adults, in all classifications of offenses) – the Respondents shall, as mentioned, file an update notice by September 15, 2014.

 

Given today, 6^th of Nissan, 5774 (April 6, 2014).

 

 

Justice                                     Justice                                                 Justice

                                                                                    AAA 3782/12

 

The Appellants	1. Tel-Aviv Jaffa District Commander – Israel Police 2. Central District Commander – Israel Police 3. Israel Police
	v.
The Respondent	The Israel Internet Association
The Formal Respondents	1.      012 Smile Telecom Ltd. (pro forma) 2.      018 Xphone Ltd. (pro forma) 3.      Bezeq International Ltd. (pro forma) 4.      013 Netvision Barak Ltd. (pro forma)

 

In the Supreme Court sitting as the Court of Appeals in Administrative Matters

[24.3.2013]

Before: President A. Grunis, Justices E.Vogelman, N. Sohlberg

 

Appeal against decision of the Tel-Aviv- Jaffa District Court of 2 April 2012 in Case AAF 45505-10-10 handed down by Deputy President Hon. Judge Michal Rubinstein

 

Facts: In August 2010, the Israel Police ordered major Israeli Internet access providers to block access to eight gambling websites operating outside the State of Israel. The orders were based on section 229 of the Penal Law that permits the District Police Commander to order the closure of any illegal gaming, lottery, or gambling place. The access providers complied with the orders and the Israel Internet Association petitioned the Administrative Affairs Court against the District Commander, contesting the closure, in the interests of Israeli web-users and the general public. The Internet access providers did not petition against the closure of access to the gambling websites. On April 2, 2012 the Administrative Affairs Court (per Judge Michal Rubinstein) granted the petition, holding that the police had no authority to order Internet service providers to block access to gambling websites. 

 

In granting the petition, the Administrative Affairs Court ruled that the Israel Internet Association had an independent right of standing, given the important public interest in enforcing constitutional values and maintaing the rule of law, notwithstanding that no petition was filed by access providers themselves. Furthermore, the closure of Internet websites violated freedom of expression. Even if the content curtailed was of little social utility, websites closure can only be done with legal authority. Primarily the provision in the Penal Law allowed the closure of a physical “place” and did not include the closure of an Internet website. In this context no analogy can be drawn from the closure of prohibited physical places to the closure of prohibited websites, notwithstanding their similar purposes, because the potential for violating freedom of expression and freedom of occupation, and because blocking access to the Internet poses technical, political and legal difficulties, including the possibility of blocking legitimate websites and innocent users. Blocks by third parties – the access providers – also raises questions relating to liability, the manner of blocking and its costs. In view of all these factors the petition was granted.

An appeal was filed against the decision in the Supreme Court.

 

Held:

Regarding freedom of expression, the Supreme Court agreed unanimously that the content blocked on the gambling websites is limited in this case and hence the violation of free speech that resulted from blocking lawful content on gambling websites is of limited degree and lawful. Moreover, the primary infringement here relates to the website operators’ freedom of occupation. In this regard, the case law has already held that the infringement of freedom of occupation, the infringement satisfies the constitutional tests.

 

With respect to the concern that protected information on websites would be blocked, the Court noted that website owners can make such information available on alternative websites, or even on the same website while blocking only prohibited gambling.

 

Regarding standing, Justice Vogelman ruled that the Internet Association satisfies the conditions for recognizing a public petitioner, given that it seeks to promote the public interest of Internet users, an interest shared by the general public, or significant parts thereof, rather than protect its own special interest. Given this case presents a first attempt to define the boundaries of the district police commander’s authority under section 229 of the Criminal Law to block access to Internet gambling websites, the question is a fundamental one that justifies hearing through public petition. As to the sufficiency of the factual infrastructure, had the Appellants felt that any issue was not sufficiently clarified, they could have acted to remedy the situation. Moreover, the public petitioner is required to present the factual infrastructure sufficient for the proceeding. In the current case the factual infrastructure was indeed sufficient for purposes of judicial review.

 

The dispute and the result involved two basic issues: first, whether the language of the Penal Law authorizing police to close a “place” can and should be interpreted broadly to include a virtual Internet website, which is not a physical place, without a specific legislative amendment. The second and more important question was whether the police can and should be permitted to exercise their authority of closure with respect to a website by way of a third party, namely the access providers. 

Justice Vogelman (for the majority, with concurrence by President Grunis), wrote that a gambling website may be viewed as a “place,” and its blocking can also be viewed as its “closing” within the meaning of section 229(A)(1). Additionally, an online gambling site may be considered a “prohibited gaming venue,” under a purposive interpretation of the Criminal Law’s relevant provisions and in the context of time and advancing technology, which render section 229 of the Criminal Law applicable in the “virtual” world. Nonetheless, the main obstacle to such interpretation is the lack of express authority to order private third parties – access providers – to assist in implementing the authority to block websites. According to Justice Vogelman, when the law empowers a governmental agency, it is assumed that the legislature intended that agency, and not another, would implement that authority, and that the agency may act only within the boundaries of the authorizing law. Even if the authorization to close a place can be interpreted as authorizing closing websites, it is not identical to authorizing third parties to block access to websites.

 

This is consistent with the principle of administrative legality which only permits an agency to act within legislation that empowers governmental agencies to order third parties to assist in exercising that agency’s authority. Such authority is not even implied in the Penal law’s provision concerning police authority to order the closing of a place.  Absent explicit statutory source, it is impermissible to compel a person or private entity to act for the authorities. Hence the orders to access providers here violated the principle of administrative legality. The current statutory framework is insufficient because it lacks authorization to order a third party to assist enforcement agencies in exercising their powers.

Even though the rule is that the authority is permitted to receive assistance from private persons or entities as far as the technical aspects of fulfilling their task, there is also an interpretative presumption against delegating authority to private entities and in the absence of appropriate legislative framework, enforcement authority cannot be granted to those not part of the enforcement mechanism

Even if the access providers were not required to exercise discretion, and the police only requested help from them in the exercise of its authority – in the technical act of blocking a website identified through its IP address specified on the order – it is still necessary to prove that the access providers agreed to assist the police. Once the police imposed an obligation upon access providers, it can no longer be considered assistance – hence the need for explicit statutory authorization.

 

Justice N. Sohlberg, writing for the minority, found that as a rule the court will not grant a public petition where there is a private victim in the background who chose not to apply to the court for relief, and that in light of the website owners failure to file an appeal, it is doubtful whether the Internet association has standing. Furthermore, granting standing when the relevant party did not file a petition might mean that the required factual infrastructure would not be presented to the Court. Nonetheless under the circumstances, where the Administrative Court recognized the Internet Association’s standing and ruled on the merits, it would be inappropriate to reject the appeal for of lack of standing without examining the matter on the merits.

 

Regarding the substantive issue, though a specific legislative arrangement would be preferable, the law’s existing language provides a satisfactory solution as to the police authority to issue orders, and waiting for legislative authority frustrates appropriate response in law enforcement and service of justice.

Both in terms of language and purpose the word “space” should be interpreted to also mean virtual space, given that terms that serve in virtual space are borrowed from the tangible world. Accordingly there is no deviation from the principle of legality by finding that “place” also includes virtual space. As the damage wrought by gambling on the Internet is immeasurably greater than that which is caused in physical places and that the legislative purpose was to prevent illegal gambling regardless of its location, a purposive interpretation would and should interpret “place” as meaning virtual space. Accordingly, apart from certain, isolated exceptions, the rule should be that the Internet fits the definition of place.

With respect to the difficulty in using third parties for carrying out a criminal proceeding, the law recognizes the possibility to use a third party to present an object necessary for interrogation or trial. Considering the license the State has granted them, access providers bear public responsibility. It is therefore justified to use them to execute orders to restrict access, given that the order requires the technical acts that do not involve any discretion regarding the closing of a site with a particular IP address specified in the order. Regarding the requirement for third party consent, Justice Sohlberg analogized the status of the website owners to receptionist in a physical place whom the police would have been authorized to require to open.

 

Justice Sohlberg also found that failure to petition against blocking access may be viewed as the website’s owner’s consent to to being used to carry out the police order. Justice Sohlberg based this conclusion on the Talmudic rule of "silence is regarded as admission.”

 

Legislation Cited

Administrative Affairs Court Act, 5760-2000, s. 5 (1)

Basic Law: Human Dignity and Liberty

Civil Procedure Regulations, 5744-1984, reg. 3(a)

Criminal Procedure (Arrest and Search) (New Version) Act, 5729-1969, s.20 23

Criminal Procedure (Powers of Enforcement- Communication Data), 5768-2007, s.1, 3 (2)

Interpretation Act 5741-1981, s.17

Penal Law, 5737-1977 s. 224, 228, 229

Police Ordinance [New Version], 5731-1971, s. 3

Prohibition of Discrimination (Products and Services) in Entrance to Places of Entertainment and Public Places, 5761-2001, s.2

Regulation of Sports: Gambling Act, 5727 – 1967

 

Supreme Court Decisions Cited

[1] HCJ 243/62 Israel Films Studios Ltd v. Levi [1962] IsrSC 16 2407.

 

[2] HCJ 651/03 Citizens Right Bureau in Israel v. Chairman of Central Elections to the Sixteenth Knesset [2003] IsrSC 57 (2) 62.

 

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

 

[4] HCJ 8070/98 Citizens Rights Office in Israel v. Ministry of the Interior (10.5.04).

 

[5] LCA 4447/07 Mor v. Barak I.T.T. [1995] Society for the Bezeq International Services Ltd (25.3.10).

 

[6] CA 9183/09 The Football Association Premier League Limited v. Anon (13.5.12).

 

[7]  Cr.A 1439/06 Zaltovski v. State of Israel (28.3.06).

 

[8] CrA. 7430 /10  Anon. State of Israel (5.2.2010).

 

[9] LCrApp 787/79 Mizrahi v. State of Israel [1980] IsrSC 35 (4) 421.

 

[10]  (HCJ 131/85Savizky v. Minster of Finance [1965] IsrSC 19 (2) 369.

 

[11] HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of the Sixteenth Knesset Central General Elections Committee [2003] IsrSC 57 (2) 62.

 

[12] HCJ 3809/08 Citizens Rights Bureau v. Israel Police (28.5.2012).

 

[13] Association of Renovations Contractors for Restoration v. State of Israel (14.3.2011).

 

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

 

[15]  HCJ 910/86 Ressler v. Minister of Defense [1988], IsrSC 42 (2) 441.

 

[16] HCJ 287/91 Kargal Ltd v. Investments Center Council [1992], IsrSc 46 (2) 851,

 

[17] HCJ 962/02 Liran v. Attorney General(1.4.2007).

 

[18] HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [2002] IsrSC 56(5) 393.

[19] HCJ 80/70 Elizur v. Broadcasting Authority [1970],IsrSC 24 (2) 649.

[20] HCJ 852/86 Aloni v. Minister of Justice  [1987], IsrSC 41 (2) 1.

 

[21] HCJ 606/93 Kiddum Yezumot v. Broadcasting Authority  [1994], IsrSC 48(2) 1.

 

[22] HCJ  2303/90 Philipovitz v. Registrar of Companies [1992], IsrSC 46 (1) 410.

 

[23] (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, (19.11.2009).

 

[24]  AAA 6848/10 Erez v. Giva’ataim (30.5.2012).

 

[25] HCJ 5031/10 Amutat Ir Amim v. Israel Nature and Parks Authority (26.3.2012).

 

[26]CA 630/97 Local Committee for Planning and Building Nahariya v. Shir Hatzafon Construction Company Ltd [1998] IsrSC 52 (3) at 399.  

 

[27]  HCJ 5394/92 Hoppert v ‘Yad Vashem’ Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC 48(3)353.

 

[28] 7368/06 Luxury Apartments Ltd v. Mayor of Yabneh (27.6.2011).

 

[29[ HCJ 6824/07 Mana v  Taxation Authority (20.12.2010).

 

[30]  HCJ 7455/05 Legal Forum for Land of Israel v. Israeli Government [2005] 905.

 

United States Decisions Cited

[[31] Center for Democracy & Technology cy & Technology v. Pappert, 337 F.Supp.2d 606 (E.D Penn. 2004).

 

 

For the Appellants: Advs. Yuval Roitman; Adv.Orli Aharoni

 

For the Respondent: Adv. Haim Ravia, Adv. Dan-Or Hof; Adv. Yossi Markovitz

 

Judgment

 

Justice N. Sohlberg

 

1.         The Israel Police issued orders restricting access to gambling websites on the Internet. The Tel-Aviv-Jaffa District Court, sitting as the Court for Administrative Affairs (Judge Michal Rubinstein) granted the petition by the Israeli Internet Association and ruled that the orders were issued ultra vires and should therefore be voided. The Israel Police appealed and requested the orders be resotred.

Background

2.         Crime is burgeoning and taking new forms. As a result, on 1 January 2006 Government Decision No. 4618 was adopted, establishing a Standing Committee for Direction and Coordination of Activity in the Battle Against Severe Crime and Organized Crime and their Offshoots. The Committee determined that because its far-reaching and grave consequences the phenomenon of Internet gambling would be a central enforcement target combining several tools – criminal, fiscal, and administrative. This is a growing crime-generating phenomenon that is accessible to a broad segment of the population. Within this context, with the knowledge of the Attorney General and the State Attorney, the Committee decided to restrict Israeli users’ access to gambling websites. Internet access providers were issued warning letters and given a list of gambling sites and their IP addresses to be blocked. The access providers and the website operators were also allowed the opportunity to object. In August 2010 the orders were issued. In October 2010 the Israel Internet Association petitioned to the Administrative Affairs Court to revoke the orders, and in April 2012 the petition was granted

The Ruling of the District Court

3.         The principle elements of the Administrative Affairs Court’s ruling are:

(a)        Locus Standi: The direct victims – the access providers and the website operators – chose not to exercise their right to petition against the orders. Nonetheless the court found there were grounds for recognizing the locus standi of the Israel Internet Association, given that it does not represent the interests of the access providers and website operators, which have primarily commercial interests, but rather as the representative of users in Israel and their rights to free expression and access to information. This is a matter of general public importance pertaining enforcing constitutional values and maintaining the rule of law. 

(b)        Restricting access to Internet gambling sites infringes freedom of expression: The Internet is an excellent tool for exercising the right to access information in a practical, efficient, cheap and reliable manner. It is a democratic tool that promotes equality, enables a decentralized and diverse discourse, facilitates economic growth, and is an excellent platform for business ventures. Access to information is a constitutional right and limitations on the use of Internet are therefore rare. yet, the Internet is also subject to abuse, to violation of copyright, publication of slander, pornography, encouragement of violence, drug abuse etc. The desire to minimize the harm caused by damaging uses of the Internet has led the authorities of different countries to adopt various means, including blocking access to websites that function as platforms for illegal activity, or use technological screening measures. The Israeli approach has been that freedom of expression is “all encompassing” and applies even to expressions that encourage illegal activity.  Still, freedom of expression is not an absolute right. When there are interests that justify it, such as security, or social, political and other interests, freedom of expression may be curbed. When applying a proportionality test, the balance may vary according to the type of expression and its inherent social value weighed against the benefit of restriction. The content of illegal gambling sites – for example game instructions, various lists, graphics and other audio-visual aides – are, generally speaking, of little social value. The expressions are of a purely commercial nature, encouraging acts restricted under criminal law. Conceivably, limiting access to such expressions may be justified by legitimate purpose. But the mere fact that an expression may be harm does not exclude it from protection. As such, restrictions on free speech, even on expressions with little social value such as those in illegal gambling sites, must pass constitutional muster and be legally authorized.  

(c )       The Police has no authority to order Internet access providers to restrict access to gambling websites.  The relevant sections of the Police Ordinance [New Version], 5731-1971 (“Police Ordinance”), and the Penal Law, 5737-1977 (“Penal Law”), through their language and purpose, authorize the Israel Police to order the closing of places where gambling is takes place, but these are only physical places, as opposed to preventing access to an Internet website. A website is not a “place” but rather an amalgamation of information and applications installed in a computer that communicates with other computers via the Internet. Information is transferred from the computer to the server. The police is authorized to order the closing of a “place” of prohibited games or a “place” where lotteries or gambling are held, but preventing access to a website is not equivalent to the closing of a place, and is not covered by that authorization, neither explicitly nor implicitly. That the law grants the police the power to shut down physical places cannot, in itself, be understood as legislative intention to broaden the authority to allow “censorship” power to the police, without clear guidelines for its exercise. Even if the purpose of the orders – reducing the prevalence of gambling – is identical to that of the authorizing closing down physical gambling places, blocked access to a website implicates freedom of expression and freedom of occupation differently.  Blocking access to the Internet poses technical, political and legal difficulties: the concern for possibly blocking legitimate websites or innocent users. Executing blocks by a third party – the access providers – raises questions of liability, methods for blocking and costs. The appropriate legal policy would be to wait for explicit regulation of restrictions to free expression on the Internet in primary legislation, following in depth public debate. “Acrobatic” interpretations should not be invoked to authorize the police to violate civil rights. Furthermore, over the past few years the legislature has considered proposals for legislative amendments on this issue, but the legislative initiatives were hindered for being insufficiently balanced. The subjective and concrete legislative intention indicates a desire not to authorize the police to block access to gambling websites at its own discretion.

In short, the orders to restrict access to gambling websites were issued ultra vires and should be voided. This was the ruling of the Tel-Aviv-Jaffa District Court, sitting as the Court for Administrative Affairs.

Principal Arguments of the Parties

4.         Attorneys for the State argue that the Administrative Affairs Court erred in determining that the Israel Internet Association has standing.  The latter is a public petitioner with no personal interest in the orders, and his petition should therefore have been dismissed in limine, especially given the existence of petitioners who could have presented the factual infrastructure required, yet they ultimately refrained from filing a petition. The petition seeks to permit illegal activity, rather than preserve the rule of law, and there was no justification for conducting a judicial hearing for this kind of petition by a public petitioner. Attorneys for the State further argue that the Administrative Affairs Court erred in holding the orders infringe freedom of expression. The websites subject to the orders do not serve as a venue for expression and their entire raison d’etre is conducting prohibited gambling. There is no justification to fully exempt the Internet from rules that apply to other media. Blocking access to gambling is accepted practice all over the world, and is necessary for crime prevention.

5.         The primary claim the State’s attorneys make is that the police is authorized to order blocking access to websites. The Administrative Affairs Court adopted a “rigid” interpretation that failed to fully account for the law’s language and purpose. The Administrative Affairs Court failed to consider a possible alternative in the authorizing statute. In any case the relevant provision can be seen to include Internet space, as well as physical space: a “place of gambling” is also a “virtual place”. The authority to close a place also encompasses orders to block access to virtual space. The attorney for the State argues that when the law was passed it was impossible to anticipate the existence of virtual space, but the purpose is the same: preventing illegal gambling, which causes immense harm to both the individual and the public. Waiting for primary legislation to explicitly grant parallel authority to virtual space means perpetuating Internet gambling, its grave consequences and its harm, while forcing the police to combat it with hands tied behind its back.

6.         On the other hand, the Israel Internet Association discussed the public interest in Internet access, and as a natural outcome, its right of standing in this petition vis-à-vis its activities to promote Internet use in Israel as a technological, research, educational, social, and business resource. The limited economic interest of website owners and access providers is not comparable to the public interest in having unfettered access to the Internet. This is the purpose of granting standing rights to a public petitioner, thus enabling judicial review in a matter of public and constitutional importance that implicates the rule of law. The Israel Internet Association also emphasized the right to know. “A governing authority which claims the right to decide what the citizen ought to know, will eventually decide what the citizen should think; and there is no greater paradox to true democracy, which is not ‘guided’ from above” (HCJ 243/62 Israel Films Studios Ltd v. Levi [1] at p. 2416). A website consists of layers of information, each of these a protected expression, including: the code, the graphic design, games, trailers, data and explanations. The suspicion of a criminal offense does not excuse limits on expression in advance.

7.         The Israel Internet Association further claims that the law does not authorize the Police to order a third party to block access to gambling websites. An Internet website is neither a “place”, nor “premises” but rather a collection of “pages” which contain information collected from files on a service computer that communicates with other computers via the Internet (Abraham Tenenbaum “On Metaphors in Computer and Internet Law”, Sha’arei Mishpat 4 (2), 356, 374 (2006)). The analogy between “site” and “place” is fundamentally flawed. Blocking access to knowledge is distinguishable from closing a physical place, inter alia because of the infringement upon freedom of expression. Physical closing does not implicate the rights of the general public. Blocking access to knowledge does. Internet access providers are not enforcement agents of the police. They serve as a channel for providing information to Internet users, and they have an immensely important role in exercising the right to access information.

8.         The Israel Internet Association requests we uphold the Administrative Affairs Court’s decision regarding standing based also on the fact that the consequences of blocking access to a website differ from the consequences of blocking a physical place. Blocking access to websites involves technical challenges that may block access to innocuous sites. Blocking may be ineffective, as well. It may have implications for international obligations, and raise questions about access providers’ liability. Costs are likely to be “rolled” onto users. As a matter of judicial policy, infringements upon freedom of expression and access to information should only done in explicit primary legislation. The Knesset debates around private bills on the matter reflect substantive reservations against conferring the police with the requested powers. Upholding the appeal would turn the police into investigator and prosecutor, judge and executor, while performing interpretive acrobatics and infringing free expression.

Discussion and Ruling

9.         I divide the discussion into three categories, following the path taken by the Administrative Affairs Court:

(a) Standing; (b) Freedom of Expression; (c) Police Authority.

 (a)       Right of Standing

10.       As mentioned, the orders compelled Internet providers to block access to a number of websites used for illegal gambling. The access providers and the website owners chose not to challenge the orders. Prima facie, as claimed by the attorney for the State, the Israel Internet Association is stepping into a dispute in which it has no part. The Administrative Affairs Court deviated from the rule that “the court will generally not grant a public petition where there is a private victim who chose not to turn to the court for relief ” (HCJ 651/03 Citizens Right Bureau in Israel v. Chairman of Central Elections to the Sixteenth Knesset [2] at p. 68).  Recognition of standing rights for the Israeli Internet Association prompted the petitions’ adjudication without presenting the Administrative Court with the required factual infrastructure. The precise contents of the websites subject to the orders were not presented, nor was a full description of the technical ability to block access. No basis was presented for the argument – which the Administrative Court found acceptable – that blocking access to gambling sites could also be expected to block other sites.

11.  The Israeli Internet Association further argued before the Administrative Affairs Court that the Internet providers’ right to hearing had been violated. It further argued that the decision to block certain sites was discriminatory. The problem however is that these are not arguments that can be raised by a public petitioner. These are arguments that only the website owners and the access providers could have raised, had they so wished to do so.

12.       It seems that a priori the petition should have been dismissed in limine in the absence of standing. However, post factum, once the Administrative Affairs Court recognized the Israel Internet Association had standing, and ruled as it did on the merits, it seems inappropriate at this stage to uphold the appeal merely based on his issue, without ruling on the merits of the appeal itself. It is incumbent upon us to rule on the legality of the orders.

Freedom of Expression

13.       The attorneys for the parties spoke loftily and at length about freedom of expression and the right to access information that derives from it. Indeed, we must make every effort to avoid infringing the free dialogue in the new “town square” and the flow of information on the Internet. Freedom of expression is the air we breathe, and the right to access information – our daily bread. All the same, in its decision, the Administrative Affairs Court stated that illegal gambling on the Internet certainly is not a protected right, and that in such circumstances indeed there is no “discourse of rights” (para. 21). However, the gambling sites also feature additional content: expressions, pictures, texts, explanations, lists and other audio-visual information. According to the Administrative Affairs Court all of these are of social value, concededly of “low value”. Nevertheless, “in the prevention of access to gambling websites the Respondents infringed the freedom of expression of users interested in entering the website and in browsing the information and of the site owners who uploaded the content” (para.23).

14.       This infringement upon free expression was scathingly criticized by the Israel Internet Association, but it appears to me that the alleged infringement is not quite what it was made out to be.  Attorneys for the State dispute this, claiming that the aforementioned gambling websites contain gambling content and nothing else, and that in any event, it is not content of a kind to which access cannot be denied based on freedom of expression. As mentioned, the petition was filed by the Israel Internet Association and not by access providers or website operators, with whom the relevant information is stored. This matter again exemplifies the problematic nature of granting standing to a party meddling in a dispute that is not its own, because the factual infrastructure laid before the court was insufficient and a court may follow it blindly.

15.       Regardless, even had the gambling websites under discussion included legitimate content alongside platforms of illegal gambling, there is nothing to prevent website owners from making the information accessible to users by one of two methods: either on an alternative site, or on the same site, together with blocking possible engagement in prohibited gambling there. The infringement of free expression is therefore quite marginal, if at all.

16.       We should not forget that the closure of a physical gambling place violates the right to property, a basic constitutional right, but is nonetheless permitted and frequently done according to the law. Case law, too, has permitted the closure of a physical gambling place, even when it serves for other legitimate activities (per former Justice Grunis in AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [3] at p.798 (hereinafter: Tishim Kadurim). As mentioned above, the Israeli Internet Association argues that not all of the content on the gambling sites at issue is illegal and that these sites serve as platforms for chatting and other legitimate uses. This is a factual claim that requires factual substantiation. But assuming it is correct, we again analogize to a physical gambling place, which may undisputedly be legally closed. In addition to serving for illegal gambling, such a place can also serve as a place for social interaction, where conversations, even on matters of highest importance, may be held. But this would not rise to the level of speech protected by the right to free expression that would prevent closing a physical place of gambling. Visitors would be able to continue to meet, to speak, and to exchange opinions in alternative venues.  Similarly, there is nothing to prevent taking the same action regarding a website where illegal gambling takes place.  Access to the latter would be blocked, and to the extent that other legitimate activities took place on the website, there would be no impediment to continuing those, whether on this site or on another site.

17.       Hence, in terms of practical implementation the concern for violating a fundamental principle has been alleviated. The elevated status of freedom of expression is far beyond dispute. It remains intact and its status is securely enshrined, and access to illegal Internet gambling can be restricted without infringing freedom of expression or the right to access information. I make additional comments on guarding against any infringement of free expression below, in my discussion of discretion in exercising police authority.  

(c)  Police Authority

18.       Law enforcement agencies source their actions in two statutory provisions. Section 3 of the Police Ordinance provides that: “The Israel Police shall work toward prevention and detection of offences, apprehension and prosecution of offenders, safe custody of prisoners, and maintenance of public order and the safety of persons and property”. This is a basic and important provision, but because of its generality is of limited value to us. A more important provision for our purposes is the specific provision of section 229(a)(1) of the Penal Law, which addresses “closure of places”, as follows:

 “A district police commander may order the closing of a place for prohibited games or a place for the conduct of lotteries or gambling.”

19.       There are two, similar alternatives. The first: “a place of prohibited games”, and the second, “a place for the conduct of lotteries or gambling”. The Administrative Affairs Court focused on the first alternative, which is defined in section 224 of the Penal Law:

“‘Place of prohibited games’: premises where prohibited games are held regularly, whether open to the public or only to certain persons, regardless of whether those premises are also used for some other purpose.”

Based on dictionary definitions in both Hebrew and English, the Administrative Affairs Court ruled that the statutory definition refers to a physical, delineated place; such as a house, building, field (para. 36 of the Administrative Affairs Court opinion). The court relied on Y. Kedmi’s book, which interprets premises “in the broad and comprehensive sense of the concept... Immovable property as distinct from movable property.” (Yaakov Kedmi, The Criminal Law (Part IV)  2283 (2006).

20.       Can the term “premises” be said to include the world of Internet? In my opinion “virtual premises” are also “premises” but this question can be left for future decisions. Section 229(a)(1) of the Penal Law, as mentioned above, consists of two alternatives. The second alternative, as worded, does not necessitate reference to the definitions section. The question therefore arises as to whether “place” can be broadly interpreted to mean “virtual space”. The Administrative Court answered this question in the negative, with sound, logical and, at first blush, persuasive reason: 

“Moreover, relating to a website as a ‘place’ is inconsistent with its mode of operation. A website, by definition, is an agglomeration of information and applications, installed on a computer, that connects with many other computers over the Internet. When a user ‘enters a website;, their personal computer contacts another computer (‘the website server’) which is found elsewhere, and requests information. The user’s computer has a unique number (IP address) and the website server has a unique number (a different IP address). The website server transmits the information to the personal computer, which uses a browser to arrange the information for reading. When “actions” take place on the website, the personal computer asks for new information from the website server, receives it, and arranges it on the personal computer. Information is transmitted between the personal computer and the server, but there is no “place” here at all. Justice Tenenbaum described this well in his article: ‘The choice of the Hebrew word “site”, intuitively conjures the notion of a geographical site. Perceiving the site as a “place” induces us to say “enter a site”, “exit a site” and the like… all the sites on the Internet are connected to each other and the vulnerability of one also harms the other… the Internet was created, developed and exists by virtue of all the individuals which support it and maintain its integrity. Correct and appropriate public policy must be based on this and facilitate these efforts… a “website” is not a place. In fact, a “site” is nothing more than a computer that holds software that regularly communicates with many other computers’” (para. 37 of the Administrative Affairs Court opinion).

21.       These comments were repeated and reiterated by the attorney for the Israel Internet Society, and I am prepared to endorse them unreservedly. A website, in essence, is not a “place” according to its technological definition. However, even if this is our point of departure, the necessary conclusion does not specifically exclude virtual space from the scope of section 229(a)(1) of the Penal Law, as will be explained. But prior to doing so a few comments must be made about the Internet, progress and the attempts of law and justice to keep up with the times. 

22.       Humanity in its entirety, laymen and experts, almost all of us are still learning, wondering and marveling at the Internet. Its influence is felt all over the world, but it will certainly take a long while before we can assess its full effect and implications: “We are living at the height of a revolution: Technological development in the computer realm, digital information and digital networks are generating a social, economic and political upheaval (Niva Elkin-Koren and Michael Birnhack, Introduction, in Legal Network: Law and Information Technology (with Niva Elkin-Koren, 2011);

The computer – and with it the Internet – are not merely a mutation of previous life forms that we have known, which we have given a home to in the legal system. They are a new life form, and their movement is not the movement of the life forms with whom we are accustomed to live. They move in the manner of the knight (the horse) in a chess game; its movement is not altogether forward, nor altogether backward or altogether to the side. It is not altogether diagonal. Its movement is a tinkling of this and a tinkling of that, and it exists in its own right. But here is how the new life form differs from the knight: we know in advance how the knight will move and we know, more or less, how to protect ourselves when it attacks us. As for these new life forms of the computer and the Internet – we have yet to fully explore them; we have yet to reach the bottom of the pit. One click in Jerusalem, and you are in Tel-Aviv, a second click and you are in Australia, a third click – and the system rebels and everything is erased as if it never was. We have begun to move at the speed of light whereas our bodies are in the carriage, and our stream of thought moves at the speed of the carriage (Mishael Cheshin, “Introduction” The Computer and the Legal Proceeding: Electronic Evidence and Procedure  (2000).

Some view the Internet as a new universe. “In a short time the Internet has created a new universe of inconceivable dimensions. This universe dominates almost every aspect of civilization, replicates it and corresponds to it” (Rubick Rozental, A Few Comments on the Language of Internet, Legal Network: Law and Information Technology, eds Michael Birnhack and Niva Elkin-Koren, 2011, 61).  The Internet has come to our world, entering into its inner domains, but we still have trouble defining it. It exists all over the world and simultaneously in no place at all. More precisely, there is access to Internet and its activity all over the world, but its existence is “nowhere”.     

23.       As is well known, the law follows sluggishly in the footsteps of innovations, and legislation does not keep up with the pace of scientific progress. Offenders against the law adapt to progress more rapidly than its enforcers. This is axiomatic. The former have no restraints; the latter do. Many years passed between the invention of the computer and the enactment of the Computers Law, (1995). Less than a generation or two passed in terms of computers, and the law is already out of date, because the legislature did not foresee, nor could it have foreseen the innovations in technology. But not only is the legal world perplexed. Psychology too has encountered new phenomena of addiction and psychological injuries, and is attempting to develop updated, “on the go” reponses.  The same is true for sociology, and other disciplines in social sciences, natural sciences and the humanities. Not surprisingly, the world of law too is still unequipped. Some have taken an extreme view, claiming that given the virtual nature of the Internet, it cannot be subjected to the laws of space, time and state (see written references for this approach in the article of Yuval Karniel and Chaim Wismonski, Freedom of Expression, Pornography, and Community in the Internet, Bar Ilan Law Studies 23 (1) 259 (2006); Michal Agmon-Gonen, The Internet as a City of Refuge?! Legal Regulation in Light of the Possibilities of the Technological Bypass Technologies and Globalism of the Net, Legal Network: Law and Information Technology, eds. Michael Birnhack and Niva Elkin-Koren, 2011, 207).

24.       This extraterritorial approach is unacceptable. Concededly, an abundance of legislation that would impair the tremendous benefit inherent in the Internet is undesirable, nor is there any point in legislation which is unenforceable given the characteristics of the network. However, for good or bad, virtual space exerts a tangible influence over the concrete world, and our world will neither consent to nor tolerate the virtual realm’s exemption from the law. Act of pedophilia committed online are still pedophilia, drugs sold via the Internet still have the same addictive and destructive affect as drugs sold on city streets, the terrible harms of Internet gambling are no less damaging than danger from gambling in a physical place. Quite the opposite, the Internet opens new horizons for the world of crime. They should be blocked. The approach of excluding law and justice from virtual space must be kept off bounds.

25.       All the same, undeniably, the legal regulation of activity in virtual space is complex and complicated. Normative claims as to what the law ought to be are difficult to make, nor is it easy to apply the existing law. Not by chance, there are those who have concluded that this is an area best suited for legislation; while others feel that case law is the appropriate method for adjusting the law to the Internet era. Both camps are uncertain about the extent to which Internet users should participate in formulating the rules governing virtual space and their application. (For a comprehensive review of the possible models, see: Iris Yaron Unger Uncovering the Identity of an Anonymous Internet wrongdoer – Comparative Review, The Knesset, Legal Department, Legislation and Legal Research, 2012).  A variety of models in case law and legislation have been adopted by states around the world (Miguel Deutch, Computer Legislation in Israel, Tel-Aviv Law Studies 22 (2) 427, 428 (1999)). The issue is weighty and broad and its influence far-reaching, but I will not elaborate on it beyond what is required for discussing the concrete questions of this appeal: the authority of the police to issue an order restricting access to gambling websites on the Internet.

26.       It seems that a comprehensive statutory regulation of this field, in a precise manner adjusted to the virtual era is preferable.  The question is whether, absent updated and comprehensive legislation, the law as currently worded satisfactorily considers the police’s authority to issue the orders in question. The Administrative Affairs Court decided to defer the legislative process, but to void police powers to order closure of virtual gambling places until the statute is expressly amended to confer such authority. This ruling involves difficulties.

27.       The ‘waiting period’ created restricts, and occasionally frustrates, appropriate responses toward law enforcement and justice.  This approach, coupled with the previously described pace of technological progress, can be expected to lead to a situation where many legislative acts will be neither relevant nor applicable. Even after the legislature has amended the legislation, it is entirely possible that within little time that amendment will no longer be useful. Hence waiting for the legislature to act will not necessarily provide a solution. “The judge interprets the law. Without his interpretation of the law, it cannot be applied. The judge may give a new interpretation. This is a dynamic interpretation that attempts to bridge between the law and changing reality without having to change the law itself. The law remains as it was, but its meaning has changed because the judge gave it a new interpretation that is consistent with society’s new needs. The court ... realizes its judicial role in bridging law and life (Aharon Barak, The Judge in a Democratic Society 57 (2004); and see HCJ 8070/98 Citizens Rights Office in Israel v. Ministry of the Interior [4], para. 12 of former Justice Grunis’ opinion; LCA 4447/07 Mor v. Barak I.T.T. [1995] Society for the Bezeq International Services Ltd (hereinafter: Mor) paras. F-I, of Justice Rubinstein’s opinion; CA 9183/09 The Football Association Premier League Limited v. Anon [6] paras. 4-6 of Justice Melcer’s opinion (hereinafter:  Anon)).

28.       On one hand, Internet crime is becoming increasingly sophisticated. On the other, criminal law develops slowly. The chasm between the two must be bridged. The Knesset achieves this through legislation, while the courts through case law. The reality of life does not allow us to wait for the Penal Law to be amended to determine which offences can escape sanction when committed over the Internet and which cannot.  Nor is it legally necessary to wait until the legislature has reviewed all of the criminal law’s provisions and decided which of them are applicable to the Internet. The court must respond to the specific matter brought before it and rule one way or another. This is not a question of ‘judicial legislation’, but rather of ‘judicial creation’. The same criminal offences proscribed many years ago and committed on city streets, are now committed on a larger scale and with greater force via the Internet. Occasionally, the actus reus is identical, the mens rea is identical, the legislative purpose is identical, and the damage, is quite often more extensive and severe in the virtual realm.  

29.       Needless to say, we are still bound by linguistic restraints and cannot deviate from their boundaries to cast our net over whatever we see as a crime or a tort in the “real world” and possibly appears as such in the virtual domain. All the same, the legislative purpose, generally common to all offences, whether committed here or there, requires an interpretative effort to prevent greatly harmful artificial loopholes in enforcement. The tremendous damage that can be wrought by the Internet was descussed by Justice E. Hayut: “The infringement concerned enlists human progress and technological innovations in computing in the service of crime, thus yielding a new and dangerous form of criminality that cannot be taken lightly. This form of criminality does not involve physical-tangible harm that leaves its marks on the victim’s body. It is committed remotely, with the click of a button, but its damage is extensive and carries different levels of implications, including to, as stated, a victim’s personal security and privacy, his property, his business, and his commercial secrets” (Cr.A 1439/06 Zaltovski v. State of Israel [7]). In the same vein, former Justice Grunis wrote: “The Internet is fertile ground for committing different types and categories of criminal activity, and inter alia, activities directed against state security. That the Internet era has made it significantly easier, technically, to commit offences such as a conspiracy to commit an offence cannot be ignored. Hence, in the case before us it is undisputed that “A” and “S” became acquainted by chance… via the Internet. In other words, conceivably, if not for the chance Internet meeting they would not have met and could not have conspired to commit the acts described in the indictment. Hence, the case before us demonstrates a need to impose punishment that deters from the negative and criminal side-effects that accompany technological developments” (CrA. 7430 /10 Anon v. State of Israel [8]). There are numerous other examples, and we take judicial notice of the Internet being exploited for grave and dangerous harm on a broad scale.

30.       Pedophilia is a pernicious scourge on the Internet. Is pedophilic material in virtual space nothing more than a collection of ‘pixels’ – with no substance – that the law is powerless to reach?  In practice, the courts do not stand idly by, and they ideed apply the Penal Law’s provisions to offences committed over the Internet. Naturally, this is not done reflexively, but rather the required physical and mental elements have been examined, under the circumstances of each case, and the principles of criminal law have been applied. (See Assaf Hardoof, Cybercrime, 17 (2010) who sharply criticizes the approach that the Internet’s characteristics undermine the foundations of criminal law. According to his approach, the mental complexities leading to criminal conduct committed in a physical environment also exist on the Internet.)

31.       We will return to the meaning of a “place… of gambling” in section 229(a)(1) of the Penal Law, which the police is permitted to close. If, according to the Administrative Affairs Court’s decision, it refers to a physical and not virtual place, then logic dictates that this would also be the meaning of a “place… of gambling” immediately above in section 228 of the Penal Law. If so, then not only would the police be prevented from issuing orders restricting access to gambling websites, but it is doubtful it would even be possible to convict a person operating, over the Internet, “a place for prohibited games or a place for the conduct of lotteries or gambling” (section 228 of the Criminal Law). On its face, this would conclusively preclude not only restricting access to illegal gambling websites, but also the enforcing the prohibition of possessing or operating illegal gambling websites. This state of affairs would remain until we are saved by a statutory amendment, which may or may not come soon.

32.       Moreover, in Israeli legislation, the term “place” is used for different offences and in numerous contexts. For example, “public place” is defined in section 34(24) of the Penal Law and is mentioned in numerous other sections concerning offences and punishments; Chapter C of the Preliminary Part of the Penal Law, deals with “Applicability of Penal Laws according to Place Where the Offense Was Committed  (emphasis mine – N.S.). A place in which an Internet website is viewed, or is used is a “place” that establishes judicial jurisdiction. Should we exempt the Internet from the Penal Law going forward because it is excluded from the definition of a “place”? Similarly, would we permit discrimination on the Internet just because it is excluded from the definition of a “public place” in section 2 of the Prohibition of Discrimination (Products and Services) in Entrance to Places of Entertainment and Public Places, 5761-2001? (See e.g. the conviction for supporting a terrorist organization on the Internet, where the internet was found to be a “public place” CrimF (Nazareth) 12641-11-10 State of Israel v. Abu-Salim (Deputy President Yung-Gefer) paras. 47-56 (1.4.12)).

33.       The civil law, too, is frequently required to apply the concept of “place” to the Internet. On more than one occasion courts have held that Internet-based conduct fall within the jurisdiction of courts all over the country. For example, in a breach of copyright and intellectual property case, concerning a website for a virtual shop selling household goods and gifts, the court held that “the picture was presented on the Internet, namely – in each and every place within the area of the State of Israel. It is therefore clear that the place of the omission was in the entire state and by extension in each and every district… the territorial jurisdiction extends to the entire area of the State of Israel” (Comments by Judge Tenenbaum in App. (Magistrates – J-Lem) 8033/06 Steinberg v. Levi (10.4.2007). These remarks, made in his role as judge are inconsistent with his decisive remarks in his role as scholar in the article cited above: that “an Internet site ‘is not a place’, which the Administrative Affairs Court relied upon in the decision appealed here (para. 37)). Even more accurately, all the alternatives stipulated in Regulation 3(a) of the Civil Procedure Regulations, 5744-1984 employ the language of “place” (place of residence, place of business, place of creating obligations, place intended for fulfillment of obligations, place of delivery of asset, place of act or omission).  Is it possible to exclude the Internet from territorial jurisdiction because it does not fall into the category of “place”?

34.       Due to space constraints and in the absence of satisfactory arguments it cannot be responsibly councluded that wherever the term “place” appears in primary or secondary legislation it must be applied to the Internet as well. Conceivably, there could be certain, isolated exceptions, but the rule should be that the Internet fits the definition of “place”. The Israeli Internet Association’s claim, which the Administrative Affairs Court accepted, that both in truth and according to its dictionary definition, virtual space is not a “place” is not sufficiently persuasive. The settled, entrenched and well-accepted law is that “the words of the law are not fortresses, to be conquered with the help of dictionaries, but rather the packaging of a living idea which changes according to circumstances of time and place, in order to realize the basic purpose of the law” (comments by then Justice A. Barak (LCrApp 787/79 Mizrahi v. State of Israel [9] at 427). There, the Court held that the “one who escapes from lawful custody” refers not only to an inmate who literally escapes from prison but also to a prisoner who fails to return from furlough: “it may be argued that our concern is with a criminal provision that should be accorded a narrow construction, by attaching only ‘physical’ meaning to the terms ‘custody’ and ‘escape’. I cannot accept this line of thought. A criminal statute, like any other statute should be interpreted neither narrowly nor broadly but instead by attaching to it the logical and natural meaning that realizes the legislative purpose" (ibid).These statements have retained their vitality and are applicable to our case too, and even a fortiori: in that case the issue concerned a criminal offense, whereas our concern here is with an administrative measure.

35.       As stated, the legal world is still not best prepared to handle the Internet, and this is also true of the world of language.  The terms that serve us in virtual space are borrowed from the tangible world. On the Internet we use a “desk top”; the user “cuts”, “copies”, “pastes” and “deletes”; “writes” “notes”; “stores” in “files”; and “sends” to the “recycling bin” and receives “documents” and “junk mail” into a “mail box”. Given this background, the word “place” is by no means exceptional. It would not be a deviation from the ‘principle of legality’, nor from the rules of interpretation were we to determine that “place” also includes virtual space, and that its meaning also encompasses a website. Since we speak of an Internet “site” in our daily conversations, we should remember its dictionary definition and its Talmudic root (b.Zevahim 7a): a “site” is a “place”.

36.       Therefore, in interpreting section 229(a)(1) of the Penal Law, I see no justification for taking a literal and narrow approach, which interprets the word “place” as a physical place only. In the current modern era, a website is also a type of place. The section’s language also tolerates the classification of virtual space – or perhaps better termed as “computerized space” – as a “place”.

37.       From language to purpose: In the case of Tishim Kadurim [3] then Justice A. Grunis explained the purpose for prohibiting certain games as a value-based goal. Man is born to labor rather than easy enrichment based on luck. Addiction to gambling is a serious scourge that harms the individual, their family and society as a whole. Before the Penal Law there was the Criminal Law Amendment (Prohibited Games, Lotteries and Bets), 5724-1964, and before Justice A. Grunis there was Justice Haim Cohn who made the following remarks about the legislative purpose behind the previous statute:

                        The legislative purpose, as reflected clearly in the nature and the language of the law, is to combat, by criminalization, the scourge of gambling and betting – the scourge of winning money or its equivalent other than by work or other reasonable consideration, but rather by the luck of the draw. Mr. Terlo rightly mentioned the well-known fact that mankind has an evil tendency to try his luck in gambling. One need not have a particularly developed commercial instinct to assess the tremendous prospect for profit in the commercial exploitation of this natural human tendency.  Mr. Terlo said, and I agree with him, that such commercial exploitation, in all of its various forms, produces demoralization. I further add that from my perspective, the wrong that the law seeks to prevent is not only the encouragement of desire for lawful easy enrichment without labor, but also – and perhaps primarily – the placing of an obstacle before the blind, where instead of spending his money on his own sustenance and that of his household, he invests in dubious ventures based on luck (HCJ 131/85 Savizky v. Minster of Finance [10] at 376).

38.  As we can see this plague is nothing new to us. The following is a reliable testimony from two hundred years ago about this phenomenon and the harm it causes, relating to the fate of those who wager on dice: “The number of those involved has multiplied, where their foolish preoccupation is such that they spend nights and days gambling, in their homes, on their roofs and on street corners, until they lose everything. Even if they are wealthy, eventually they lose all and must steal and resort to violence, while their family members starve; their children beg for bread, and there is none to give them, for they do not work to bring food to their families. And one sin leads to another, in that they neglect prayer and fulfillment of the commandments, for when temptation seizes them and they engage in gambling, it is extremely difficult for them to forsake it, as difficult as separating one’s fingernail from one’s flesh. They do not take care of themselves and do not tear away from gambling, even to eat at the time for eating and to sleep at the time for sleeping. One who is addicted to gambling will not leave it even when he is old, for only will-power can separate from it.” (Rabbi Eliezer Papo, Pele Yo’etz, Constantinople, 5584 - 1824).[1] […]

39.   In 1975 the legislature added a provision to the Penal Law Amendment (Prohibited Games, Lotteries and Bets), 5724-1964, which granted the District Commander of the Police the authority to issue an order to close “a place for prohibited games or a place for the conduct of lotteries or gambling” (S.H 5735, No. 779, 222). According to the introduction to the Explanatory Note of the bill, the legislature was dissatisfied with the existing criminal sanction, and sought to close places where prohibited games were conducted, as a preventive measure: “The Law imposes a punishment on the possessor or operator of a place for conducting games with cards, dice, game machines, and the like, But there is no law that prevents the actual existence of such place… The proposed law seeks to establish provisions… by enacting legislation directly designed to address the phenomenon of the crime that thrives in such places, and to confer the authority for the advance prevention of the opening of businesses that are liable to harm public safety and generate crime. It also proposes to stiffen the punishments and to adapt them to any given situation (H.H. 5735-1975).” Incidentally, the Explanatory Note refers to the closing of “a certain place”. In light of our conclusions above, it is not inconceivable that “a certain place” encompasses the Internet, it being a place where anonymity is preserved and where we have no knowledge of a website owner’s or users’ identities, nor do we know what that place is, or where is it located, all of these are considered  “anonymous".

40.       The harm wrought by gambling on the Internet is immeasurably greater than that which is caused in physical place. Gambling websites on the Internet are accessible to all sections of the population, from adult to child, the rich and the poor, the honest and the corrupt, the wise and the legally incompetent. With just a click of a button and press of a key any novice can gamble on the Internet. But not only accessibility is concerning, there is also availability – at  any time and any hour.  Identity can be disguised to enable the use of all features of virtual spaces. All of these come together to exacerbate the phenomenon and its range of harms: addiction, vast loss of funds, money laundering, tax evasion, incidental crime, and more. A large physical gambling venue can hold hundreds, perhaps even thousands of clients, but it pales in comparison to the Internet, which is available to millions of people. With these capacities, the number of victims also rises exponentially, as well as the amounts of funds dubiously invested.

41.       When section 229(a)(1) of the Penal Law was enacted, the legislature did not anticipate the Internet and by extension did not consider the illegal gambling that would be conducted there. However, the legislative purpose evidently was to prevent illegal gambling, regardless of location.  The police pursuit of offenders does not end at virtual space; the Internet cannot become a city of refuge. The material factor is not the platform for illegal gambling but rather the phenomenon itself. “Do not look in the canister, but at what is inside (Mishnah, Avot 4.2)” If it is technically possible to close a gambling place, even if the closure is not an enclosure but rather a prevention of access, the legislative purpose should be realized, to the extent possible, through proper interpretation. And again, if we assume that it refers to a physical place, then illegal gambling need not necessarily be conducted in a closed structure, for example, a vast area in which illegal gambling takes place.  The possibility of ordering its closure exists and can be done by preventing access through the gate. The police would be authorized to close the gate and prevent access to a space used for criminal activity. In the same vein, the Internet too is a space: a computerized space (some have used the expression “global public space”. See Jurgenb Habermas, The Structural Transformation of the Public Sphere, Thomas Burger & Frederick Lawrence translations (1989); Tal Samuel-Azran, Global Public Sphere on the Internet: Potential and Limitations, Legal Net:  Law and Information Technology, 433, 434 (Niva Elkin-Koren and Michael Birnhack eds, 2011)). Entrance into computerized space is also through a “gate” embodied by the access provider and the website operator. Concededly, the entrance is not physical, actually consists of communication between computers, but this is immaterial, because the technological definition is inconclusive as to the interpretative question.

42.       Jewish Law can enlighten us. The Torah was given at Mt. Sinai. In the ancient world, modern technology and the Internet era were unimaginable. Nonetheless, the Torah seeks to adapt to present and future reality by way of interpretation, for otherwise it would become a dead letter instead of a living document. Interpretation must adhere to language in order to fulfill the Divine words and to not deviate from them in any way. It was specifically because of this that the Talmudic Sages saw no difficulty in adapting terms such as ox or donkey or camel, used in those times for labor and transport, to the context of vehicles and planes. This is the present need for otherwise Jewish law will no longer be relevant or valuable. Rabbi Aharon Lichtenstein made remarks pertinent for our purposes, and they should guide us: 

                        In the developing technological reality the ability to cause damage, physical or even virtual continually increases, without incurring any liability under the criteria of Nahmanides or of Rabbi Yitzhack.[2] The harm may be more abstract and the process of causing it may be more indirect than the minimal threshold for liability under garma.[3] Nonetheless, the result is quite severe.

                        Accordingly, a learned and sharp-minded thief would be able to plan and execute the perfect burglary, with the assistance of grama tools for breaking in, without consequences, whether due to direct damage or force of garmi.  Should we persist to grant exemptions in this kind of scenario based on the law of grama in torts?...

                        The request is simple, the authority exists and eyes are raised in anticipation. In the event that leading Jewish authorities succeed in enacting an amendment for this matter it would provide a  remedy for a real concern for society, and at the same time, would  elevate the glory of the Torah (Lessons of Rabbi Aharon Lichtenstein, Dina d'Grami, 200 (5760); See also in the comments of Justice N. Hendel, para. 6 Anon.)

43.       Thus far on the laungauge and the purpose. We now proceed to address some of the difficulties the Administrative Affairs Court considered in the decision appealed here, in terms of applying of the law to the virtual sphere. These difficulties also lead the court to conclude that the solution lies with the legislature and not the court, and that it is appropriate to wait for legislative amendment.

44.       A primary difficulty is that the orders restrict access to the Internet through third parties – the access provider. According to the Administrative Affairs Court, based on the Israeli Internet Association’ claim, the law authorizes closing a place, but does not authorizes ordering a third party to prevent access to an Internet site. The claim is a weighty one. Access providers’ legal responsibility poses questions in different legal contexts. For example, in the Mor [5] case the Court held that the provider is not obligated to disclose the identity of anonymous “talkbackers”, and called upon the legislature to regulate the matter. Similarly, in Anon [8] the Court ruled that a supplier cannot be compelled to reveal the particulars of a site owner who breaches copyright in order to file an action for that breach. This decision was also accompanied by a call for legislation of the matter. At the same time, the Court held that if a certain matter did not find a legislative solution, courts would have to provide solutions in case law, and the legal doctrines required to fill in the lacunae were presented. The matter before us is different. Here, it cannot be said that there is no legislative provision that confers authority. There is no need for primary legislation of the issue. The section’s interpretation leads to the conclusion that the section applies to the virtual realm. Legal issues concerning the access provider may be adequately resolved in the context of how the police may exercise its authority to order restricted access to gambling websites. That such difficulties exist should not be a determinative factor in whether the authority exists.

45.       I also believe that the legal challenges involved in restricting access to gambling websites vis-a-vis the access providers were exaggerated. First, using a third party to execute criminal proceeding is not illegitimate. The law recognizes, for example regarding a summons to present evidence for investigation or a trial (section 43 of the Criminal Procedure (Arrest and Search) (New Version) Act, 5729-1969. Second, given the license they receive from the State, access providers have a public duty. They sit at a central intersection – the “Internet points of control” – and under these circumstances using them to execute orders restricting access is justified.  Third, it appears that had it concerned the closure of a physical place by the police, with third party assistance, there would have been no problem.  The attorneys for the State demonstrated this in another context thus: Illegal gambling is being conducted in an isolated villa. A guard is in charge of the path leading to the villa. Would the police not be authorized to order the policeman to prevent gamblers’ access to the path leading to the villa? Fourth, a police order directed at access providers instructing the to restrict access to illegal gambling websites does not require them to conduct any investigation or inquiry and does not unlawfully breach any of their rights, ordering them only to “execute a technical act that does not involve any discretion of the closing of a site with a particular IP address, explicitly specified in the order” (section 41 of the State’s summations). Case law has stressed that imposing legal responsibility on the supplier raises concerns that should be regulated statutorily (see Rachel Alkalai, Civil Liability of Internet Services Suppliers for Transfer of Harmful Information Hamishpat 6, 151, 154 on the Report by the Knesset Sub-Committee for Communications and Information on the Need for a Legislative Arrangement). However the situation in the case before us differs from the one described there. We do not hold that Internet providers are legally responsible to prevent, on their own initiative, access to websites used for illegal gambling.  Moreover, our ruling does not prevent access providers from petitioning a court in appropriate cases in order to subject it to judicial review. This right is stipulated in section 5(1) of the Administrative Affairs Court Act, 5760-2000 (item no. 7 of the First Schedule). Recall that the access providers did not exercise this right and did not challenge the order.

46. The Israeli Internet Association claims that this is an “unprecedented and exceptional measure” (page 1 of the summations). This is not so. The Administrative Affairs Court recognized that restricting access to Internet websites used for gambling is accepted practice around the world: “The desire to minimize the harm from negative uses has led certain authorities, even in liberal democratic countries, to take various measures against websites that support anti-social activities (see: Betting on the net: An analysis of the Government’s role in addressing Internet gambling, 51 Fed. Comm. L. J. (1999)). One of those measures is blocking access to websites that are breading grounds for illegal activity, by various technological means…” (para. 19 of the opinion) (ed. note: translated form the Hebrew opinion’s translation).  In Australia, a law was enacted in 2001, stipulating that “access providers shall block access to illegal gambling sites should they receive an express demand to do so from the authorities” (ed. note: translated from Hebrew opinion’s translation), subject to the conditions set forth in the Interactive Gambling Bill 2001. In 2006, the United States passed a law prohibiting Internet gambling – the Unlawful Internet Gambling Enforcement Act of 2006, which inter alia allows that under certain circumstances, the court may grant orders to compel internet providers to block access to gambling websites (paras. 54- 55 of the Administrative Affairs Court opinion).

47.       Additional restrictions are common around the world. The Council of Europe’s Convention on Cybercrime deals with the adoption of legislation intended to protect society from crimes committed online (http://conventions.coe.int/Treay/en/Treaties/Html/185.htm). It provides inter alia that all parties to the convention will adopt legislative and other measures as may be necessary to criminalize various acts of child pornography, which is disseminated over computer systems (Article 9). In 1998, Sweden passed a law addressing liability for electronic bulletin boards, including various categories of Internet pages (Act (1998:112) on Responsibility for Electronic Boards).  This statute requires service providers who store information (as distinct from Internet access providers) to make illegal content inaccessible or to remove the content. If further refers to a number of provisions in Sweden’s Penal Law, for example, incitement to racism, or child pornography (http://www.nai.uu.se/forum/about-nai-forum-1/SFS-1998_112-Act_E-boards.pdf.).

48.       Australia established an agency known as Australian Communications and Media, which is charged with, inter alia, regulating Internet content. The agency is authorized to investigate potentially prohibited content on the Internet, and to issue access providers “notice of warning and removal” relating to the contents of Internet websites used for illegal gambling. In Italy, since 2006, Internet gambling has been prohibited, unless on authorized websites.  Internet access providers are required to restrict access to unauthorized websites listed in a “black list” kept by an administrative body: Autonomous Administration of State Monopolies, http: www.aams.gov.it/site.php?id=6560).  As it turns out the restriction of access to websites is an accepted measure, occasionally following an order by an administrative body. The a priori involvement of a judicial body is not always necessary, and there is no need for a criminal investigation to precede the administrative directive. States around the world acknowledge the necessity of restricting prohibited activities on the Internet as well. The State of Israel is not a pioneer in this realm.

Police policy is to exercise this authority with caution. The investigations and intelligence branch prepare the infrastructure required for issuing an order.  Legal counsel to the police examines the material, and so does the State Attorney.  Immediately before issuing the order, the access providers and websites operates are given the right to present their arguments. The decision to issue the order is given at the level of the district commander.  A party who could have been aggrieved may file an application for a second review, and following that, as stated, may also petition the courts. After issuing the order, the police examines it periodically, and at least once a month considers whether to extend it, revoke it or amend it. Against this background, if the police orders, consistent with its authority, a third party to assist it in preventing an offence, and if the latter agrees, why should the court prevent it from doing so? If the same access providers wish to object, the doors of the court are open to them in order to hear their claims.

50.       As we have said, the authority is there; the manner of exercising it is subject to discretion and judicial review. Recall, that the access providers filed no petition to any court, and in this sense, the Internet Association is indeed meddling in a dispute to which it is not a party (HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of the Sixteenth Knesset Central General Elections Committee PD 57(2), 62.) Regardless, in the absence of appropriate factual infrastructure, there is no practical possibility or legal need to elaborate further on this matter.

51. The Administrative Affairs Court stated that restricting access through the orders in question could incidentally block innocent websites. Attorney for the State responded to this argument, claiming that from a technological perspective this fear was negligible because the IP address can be crossed with the website’s URL address in order to prevent restricted access to innocent sites. Personally, I see no need to rule on this point, given that it was not fleshed out in the Administrative Affairs Court.  The state can consider these claims in light of its discretion to exercise the authority. In preparing the order, the police must ensure that execution by access providers does not harm innocent websites, but only restricts access to the targetted website. Where it is impossible to avoid harm to innocent websites, as a side-effect of blocking access to a gambling website, to the extent that the Israeli Internet Association is correct and such situations indeed occur, the police would not be permitted to order restricting access to the site. Presumably, a provider wishing to avoid harm to innocent websites would present such claims under the right to be heard, in a petition for second review by the police, or in a petition to the court.

52.       The Israeli Internet Association also claimed that restriction of access was ineffective. The attorney for State argued in response that the inefficacy claim directly contradicted the Israel Internet Association’s claim concerning the damage such orders would cause: If the orders are ineffective, then naturally no harm would be caused. In any event, the court has no expertise regarding the efficacy of the orders. The position of the Israel Police – the professional body charged with the matter – is that the orders have a substantial effect and that this is another effective tool against illegal Internet gambling.  The Israel Police is aware of the methods used in an attempt to ’bypass’ the orders (for example, changing the URL website address, or its IP address). But this involves costs and not all end users know how to do it, and the police also has the tools for dealing with ‘bypass’ attempts. Actually, enforcement difficulties are not unique to virtual space and are common in all areas of crime: “For by wise counsel thou shalt make thy war” (Mishlei 24:6).

53.       The Administrative Affairs Court had difficulty not only with “place”, but also with “the closure”. According to the court, “closure is one thing, blocking access is another” (para. 41), and “even a broad interpretation of the law cannot confer the police commander authorities not specified in the law”  (ibid). My opinion is different. If the police is authorized to fully close illegal gambling websites on the Internet, then let alone it should be authorized to block or restrict the access to them. This is a less harmful measure. Section 17(b) of the Interpretation Law 5741-1981 provides that “any authorization to act or compel action implies the auxiliary authorities reasonably required therefore.” Authorization to close (and afortiori if closing is not possible) also means granting powers to block access.

54.       The Israeli Internet Association opposed various claims by the State’s representatives regarding the legislative regulation of the issue. This may be so, and it would have been preferable had they spoken in one voice, but we must remember that the issue raises real doubt. There is nothing to prevent changes in views or thought processes, and in making deliberations more productive. The binding position of the State’s representatives, at the end of the day, is that of the Attorney General, and the arguments were made on his behalf. Without derogating from its claims here, the State also submitted the draft bill to clarify the situation, but one cannot know how the legislative process will develop. The same applies to the four previous draft bills presented to the Knesset. Each one of them attempted to explicitly authorize the police to order access suppliers to block access to gambling websites, but none of them materialized into a legislative act. The Knesset members expressed varying opinions but I do not think it is possible to distill a clear conclusion from their comments regarding the subjective intention of the legislature, as concluded by the Administrative Affairs Court: “The fact that the legislator debated the proposal substantively and decided not to enact it, indicates that its subjective intention was not to apply its principles in fact… the subjective and concrete intention of the legislature in this matter, indicates that it sought not to give the District Commander authority to block access to gambling sites pursuant to his own discretion”  (para. 61). In my view, this conclusion is by no means inevitable. According to the record, some of the Knesset Members felt that a legislative amendment was entirely unnecessary, and that the authority already exists. In view of the differing views, additional possibilities exist. Summing up the debate, the committee chairperson pointed out the difficulties that were raised, but the general position was to conduct another hearing. A small part of the legislative proceedings and a few Knesset members who are members of the Constitution, Law and Justice Committee cannot provide a basis for a generalized legislature’s subjective intention.

Final Word

55.  I do not think that there was any justification to cancel the orders issued by the police, with the State Attorney and the Attorney General’s knowledge, to restrict access to gambling websites. First, it is doubtful whether the Israel Internet Association has locus standi in this petition; second, the alleged infringement of free expression is certainly not as serious as was alleged; third, the main point is that section 229(a)(1) of the Penal Law constitutes an authorization for the police to issue the orders. This is consistent with the section’s language, its logic, the legislative history and the legislative purpose.  I therefore propose to my colleagues to strike down the decision of the Administrative Affairs Court and to order the restoration of the orders to restrict access to gambling websites.

Note

56.       After reading the opinion of my colleague, Justice U. Vogelman, my impression is that he was slightly tough on the State regarding the use of a third party – access providers – for purposes of exercising the authority under section 229 of the Law. I addressed this point in paragraphs 44-45 above. I will add just this: My colleague mentioned the well known distinction between delegating authority which also includes the exercise of discretion, and receiving assistance in technical matters related to exercising that authority. My colleague acknowledges that the access providers were not required to exercise discretion, and the police only requested their help in exercising its own authority – in the technical act of blocking a website identified by its IP address as specified in the order. However, according to my colleague, it is still necessary to show that the access providers agree to assist the police, and once the police imposed an obligation upon the access providers, it can no longer be considered assistance.

My view is different. First, let us assume that the police district commander seeks to order the closure of a room used for gambling. To do so he orders a third party, in possession of the keys to that place, to lock the door, without requesting consent. Is there anything wrong with that?  Had the place of gambling not been an Internet site, but rather a room in a hotel, would the police not be authorized to order a reception clerk to assist it in exercising its authority to close that room or to open it? Would this require a legislative amendment?

Second, as mentioned in para. 49 above, prior to issuing the order the access providers were given the right to present their claims; the access providers are entitled to request a second review of the decision to issue an order, and the access providers are also permitted to petition the Administrative Affairs Court. In fact, the access providers took none of these steps. They may have reconciled themselves to the orders as a token of good citizenship; they may have an interest in preventing access to gambling websites, because in doing so they reduce their exposure to law suits (for example: parents suing them for their damages as a result of their children’s Internet gambling). I will not belabor the point speculating because the facts suffice: The access providers did not institute any legal proceedings to express their objection to the orders. My colleague seeks to be meticulous about the access providers’ rights, and requires that their consent be “explicit”, “sincere and genuine willingness”. Under the circumstances, my view is different. In the Haggadah of Pessach, tomorrow night, with respect to the son who does not know how to ask, we say “you shall open your mouth for him”. By way of analogy, this is how we relate to a mute, who is incapable or does not know how to present claims or to ensure their rights are protected. Access providers do not fall into this category and I see no justification for treating them under the criterion of “you shall open your mouth for him”, when the gates of the court were open to them, and they knowingly refused to enter. More precisely, in the future too, whenever the police seek to issue an order, Internet providers will be able to object and to present their case before the order is issued, after it is issued, and also to file an administrative petition. It therefore seems that we may appropriately apply the Talmudic rule that “silence is regarded as consent” (Bavli, 87b), to infer their agreement, and thus remove the obstacle to the exercise of the police authority to restrict access to gambling websites.

 

Justice U. Vogelman

Is the District Police Commander of the Israel Police authorized to order Internet access providers to restrict Israeli users’ access to gambling sites on the Internet, under their authority under section 229(a)(1) of the Penal Law, 5737-1977 (hereinafter: the Penal Law), to close down gambling places? This is the question before us.

General

1.         The appearance of the Internet has radically changed our world.  It enables easy and convenient communication between people. Some use it for interactive entertainment; others use it for electronic trade. Many use it – occasionally on a daily basis – to send electronic mail and for sending instant messages. A countless number of websites enable video and audio, and others enable telephony, files sharing, and the like (Assaf Hardoof, Hapesha Hamekuvan) [CYBERCRIME], 114, 117 (2010)). The web also enables access to immense quantities of information pooled on the Internet – an ever growing collection of documents created by independent authors and stored in servers’ computers. In that sense, the Internet is the most outstanding feature of the “information era” in which we are living, an era in which advanced technological reality enables the immediate transfer of data on a massive scale compared to the world around us (see HCJ 3809/08 Citizens Rights Bureau v. Israel Police [12] para.1 (hereinafter: the “Big Brother” law). In this way the Internet has and continues to contribute to social, economic, scientific and cultural developments around the world. Alongside these numerous advantages, phenomena of lawbreaking are likewise are not absent from the virtual world. The Internet enables activity that is defined as a criminal offence or civil tort, as well as technologies that enable the commission of torts or offences (Michal Agmon-Gonen, The Internet as a City of Refuge?! Legal Regulation in Light of the Possibilities of the Technological Bypass Technologies and Globalism of the Net, in Legal Network: Law and Information Technology, eds. Michael Birnhack and Niva Elkin-Koren, 2011). Illegal gambling enabled by the Internet is part of the content available on the Internet. Gambling websites offer their services from their locations in countries that permit it, and are accessible from different states around the world, including those in which participation in gambling is prohibited or restricted. Over the past few years these websites have become increasingly ubiquitous, given the high financial incentive for establishing them. Online gambling is one of the most profitable branches of trade on the Internet (Chaim Wismonsky, Sentencing Guidelines for Computer Crimes, Bar-Ilan Law Studies 24(1), 81, 88 (2008)).

2.         There is no need to elaborate on the negative social value involved in gambling. My colleague Justice N. Sohlberg also discussed this at length. This phenomenon has seen plenty of opposition, including the claim that a one’s livelihood should be based on work, a vocation or some other legitimate activity rather than easy enrichment based on luck. Whereas participating in gambling is not creative and undermines one’s work-ethic, a person participating in prohibited games may become addicted to this “occupation”, and the addict could cause extensive losses to themselves and their family and ultimately become a burden upon their family and upon society. As known, there are a few legal arrangements that permit gambling games under state auspices, encompassed in the Regulation of Gambling in Sports Act, 5727-1967 and in section 231(a) of the Penal Law. Mifal HaPayis,[4] for example, operates under such a permit. Notwithstanding that state-sponsored permitted gambling enables quick enrichment based on luck and also poses the danger of addiction, it should be distinguished from illegal gambling. Permitted gambling enables fundraising for public causes; they are not usually accompanied by negative elements such as coming under the control of organized crime, and finally, the state can oversee their mangagement and the distribution of funds (see AAA 4436/02 Tishim Kadurim [3] at p. 804,806; Ofer Grusskopf, Paternalism, Public Policy and the Government Monopoly over the Gambling Market, Hamishpat (7) 9, 28 (2002)).  As an aside, it should be noted that in many states gambling is permitted on a wider scale, but needless to say, our decision at this stage is restricted to Israeli Law and the legislatures’ values-based determinations.

3.         Techonolgically, it is now possible to block access to a particular website (compare:  Rachel Alkalai, Civil Liability of Suppliers of Internet Services for Transfer of Damaging Information, Hamishpat  (6) 151, 159 (2001)). This is the background for the orders subject to this proceeding. The events concerning us unfolded as following. At the end of June 2010 Israel Police district commanders sent warning letters to Internet access providers, notifying them of their intention to order blocking Israeli users’ access to various gambling websites (hereinafter: the warning letters). In the warning letters the district commanders specified the URL addresses and IP addresses of these websites. Notably, the Appellants claimed that the website operators also received a similar warning. The Internet access providers received a 48-hour extension to submit their challenges of the orders, and a further extension was granted to providers who so requested. One provider, Respondent 2, exercised its right to object to the orders. In a letter to the district commanders, Respondent 2 claimed that the orders because were unlawful because the district commander is only authorized to order closure of physical places; and also because the Penal Law does not authorize a district commander to use the providers to prevent users in Israel from having access to gambling websites. In August 2010 the police gave notice that it had rejected these claims and the orders forming the subject of the appeal were subsequently issued.

4.         Our decision in this appeal therefore relates to the legality of these orders. My colleague, Justice N. Sohlberg, found that there is a doubt regarding the locus standi of the Israeli Internet Association in this petition; and that there was no justification to declare the orders invalid because they were issued by the district commander without authority, as per the ruling of the District Court. Having read the comprehensive opinion by my colleague, and having considered the matter, I have concluded I cannot concur with the result that he reached. My conclusion precedes the analysis. As detailed below, in my view, section 229(a)(1) is short of authorizing the police to issue the relevant orders. In the first part of my remarks I will discuss the locus standi of the Israeli Internet Association. Next, I discuss the source for the claimed authority – section 229 of the Penal Law, and examine whether it sufficiently authorizes ordering the Internet providers to block access to gambling websites.

Locus Standi of the Public Petitioner

5.         The Israeli Internet Association is a non-profit organization that works to promote the Internet and its integration in Israel. The Association seeks to further the interests of Internet users. It has no self-interest beyond the interests it shares with the general public, or at least with significant parts thereof, and as such its petition is a “public petition”. As a rule, this Court’s jurisprudence has taken a permissive approach to standing rights of public petitioners (HCJ 5188/09 Association of Renovations Contractors for Restoration v. State of Israel  [13] para. 7.) Our firmly settled rule is that a public petition will be recognized where “the matter raised in the petition is of a public nature, which has a direct effect on advancing the rule of law and establishing policies to ensure its existence in practice” (HCJ 1/81 Shiran v. Broadcasting Authority [14] at p. 374; see also HCJ 910/86 Ressler v. Minister of Defense [15], at 462-463). Who can serve as the public petitioner? It could be any one of many people aggrieved by a certain administrative act (HCJ 287/91 Kargal Ltd v. Investments Center Council [16] at p. 862), including any one who is unable to indicate a personal interest in the matter or harm caused to them personally (HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of Central Elections Committee for Sixteenth Knesset [11] at p.68)). The judicial policy on this issue was and still is influenced by fundamental value-based concepts about the role of judicial review in protecting the rule of law and supervising appropriate functioning of public administration. As such, the court should refrain from refusing the hear a person who claims that an administrative authority has violated the rule of law for the sole reason that they have no personal interest in the matter, given that this would lead to providing the authority with a stamp of approval to continue violating the rule of law (HCJ 962/02 Liran v. Attorney General [17] para. 14 (hereinafter: “Liran”). Yitzchack Zamir Administrative Power Vol.1 120-121 (2^nd ed. 2010) (hereinafter: Zamir)). Along with broadening of the scope of standing rights, the principle that the court will not generally grant a public petition where there is a particular person or body who has a direct interest in the matter should be preserved, unless they themselves have failed to petition the court for relief in the matter concerning them (see Liran [17]). In the words of former Justice M. Cheshin in HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [18]: “…in a case of this kind we would tell the public petitioner seeking to claim the right of the individual injured: Why are you meddling in a quarrel which does not involve you? If the victim did not complain about the infringement that he suffered, why have you come to provoke dispute?” (ibid., p. 443).  

6.         My colleague Justice N. Sohlberg felt that the Internet Association was “meddling in a quarrel which does not involve it”. I do not share this position. In the case before us, the Internet Association has raised grave claims about the alleged overstepping of authority in issuing orders to Internet access providers. Our concern is with a first attempt to define the scope of the district commanders’ authorities under section 229 of the Penal Law, in terms of blocking access to Internet gambling websites. This is a fundamental question. It is undisputed that the administrative authority’s activity within the boundaries of its authority are central to maintaining the rule of law. This Court has already held that claims of exceeding of authority are categorized as claims that justify broadening standing rights, for “...a court takes a more lenient attitude to the right of standing of persons not directly and substantially harmed where it concerns exceeding authority of a tribunal or agency, or where it concerns an act committed unlawfully, as distinct from other cases” (per Justice Kister in HCJ 80/70 Elizur v. Broadcasting Authority [19] at p.649; compare HCJ 852/86 Aloni v. Minister of Justice  [20], at p.63).

7.         One of the underlying considerations in Justice N. Sohlberg’s position on the Internet Association’s standing was the concern that conducting a proceeding on the part of the Internet Association might mean that the court would not be presented with the required factual foundation.  While I do not deny this concern, it seems that it need not undermine the Association’s standing.  First, we may assume that had the Appellants who participated in the proceedings in the lower court wished to clarify any factual matter or otherwise, they would have done so. For example, consider the Appellant’s complaint that the trial court was not presented with a full description of the technological ability to order blocking access to the websites. Without making an iron clad determination on the question at this stage, it suffices to say that nothing prevented the Appellants themselves from presenting data on this point, to the extent that they disputed the factual infrastructure in the petition. Second, nothing prevents the public petitioner from presenting the necessary factual foundation. In this case, too, I do not find the legal foundation presented to the Court to have hindered judicial review. Consequently, in my view, there is no ground for us to intervene in the District Court’s ruling that the Internet Association has locus standi in this proceeding.

With this in mind we can proceed to the merits of the matter.

The Question of Authority

8. Section 229(a)(1) of the Penal Law, titled “Closure of Places” provides that “A district police commander of the Israel Police may order the closing of... a place for prohibited games or a place for the conduct of lotteries or gambling”. In section 224 of the Law, a “place of prohibited games” is defined as “premises in which prohibited games are habitually conducted, whether open to the public or only to certain persons; regardless of whether those premises are also used for some other purpose”. In order to determine that the orders directed at the access providers requiring them to block access to gambling websites, are within the authority detailed in section 229 of the Law, three interpretative moves are necessary. First, we must determined that a website fits the definition of “place” as defined by the law; second, that blocking access to the website is the equivalent of “closing” as defined in the Law; and third, that the access providers can be used to exercise such authority.

9.         I am prepared to assume, in line with my colleague Justice N. Sohlberg’s holding that a website could constitute a “place” as defined in different contexts in our legislation, and that an online gambling website may be viewed as a “place of prohibited games” as defined in section 229 of the Penal Law. In this regard, I tend to agree that a purposive interpretation of this legislation, in the spirit of the times and technological progress, may indeed lead us to the conclusion my colleague reached that section 229 of the Penal Law could be also applied to “the virtual world” (compare Assaf Hardoof Criminal Law for Internet Users: The Virtual Actus Reus, HaPraklit (forthcoming) (52) 67, 122-124 (2012) (hereinafter - Hardoof)).

10.       Regarding the infringement of free expression. Internet sites indeed serve for voicing opinions and exchanging ideas, but – as is well known – the law does not treat each and every expression similarly. Even had some of the gambling websites included pictures, explanations concerning the rules of different games, information about gambling relations, chat rooms, and others – this is content located at the periphery of the protected value. As such, even if blocking gambling websites may cause blocking access to lawful content, it must be remembered that the value of the “expression”, which we are asked to protect, is not high and that the extent of protection afforded corresponds to the extent of the interest in question (HCJ 606/93 Kiddum Yezumot v. Broadcasting Authority [21] at p. 28). Moreover, to the extent that it concerns the blocking concrete websites, it seems that the primary infringement relates to the website operators’ freedom of occupation. Our precedents have already held that this is an infringement that passes constitutional tests (Tishim Kadurim [3] at pp.814-815). However, despite this and though I am prepared to assume that the extent of the infringement of freedom of expression is limited, I think it important to note that I share the general approach of the District Court, that when dealing with the sensitive topic of blocking Internet websites, we should particularly scrutinize the concern for infringement of freedom of expression. With respect to gambling websites, and only to them, my opinion, as mentioned above, is that the infringement of free expression that resulted from blocking lawful content on the gambling websites, is of a limited degree, On the other hand, it is certainly possible that other cases will reache us in the future, where there may be reason to significantly broaden the scope of protection afforded to expressions displayed on any particular website. Each site has its own characteristics.

11.       Aadditionally, the sensitivity of the matter – blocking websites – has another aspect , given that the trial court also found that blocking illegal gambling websites could also block access to “innocent” sites which the order did not target.  An unintentional block may occur because a number of websites, not linked to each other, may be located on a server with the same address. Regarding this point, the trial court referred to Center for Democracy & Technology v. Pappert [31] 337, F.Supp.2d 606 (E.D Penn. 2004), in which the United States Federal Court struck down a law that enabled censorship of pedophile websites, among others because of the filtering of “innocent” websites. The Appellants, for their part, challenge this holding. They claim that from a technological perspective, the fear of blocking sites that are unconnected to gambling activity is negligible, because the access providers were requested to block websites based on the combination of the IP address and the website address (the URL). This combination of the IP address and the URL address, allegedly, minimizes any possibility of blocking innocent websites. Apparently, this point was not fully clarified because even after examining of the papers filed with the trial court, it is unclear whether it is technologically possible to block only “targeted” gambling websites, as alleged by the Appellant, or perhaps, technologically, it poses difficulties. If indeed, there is danger of blocking “innocent” websites, then this would clearly constitute a grave infringement of free expression and the right to access information – an infringement that would necessitate explicit statutory authorization as well as compliance with the limitations clause.

12.       Had the question of blocking “innocent” websites been the only difficulty arising from this case, it might have been appropriate to remand to the trial court for an in-depth examination of this issue. However, the central obstacle the Appellants face is fundamental and disconnected to the previous question, namely using a third party to execute an authority, without explicit statutory empowerment to do so. In my view, section 229 cannot be sourced to exercise the authority by giving an order directed at a third party – the Internet access providers. My colleague, Justice N. Sohlberg, found that restricting access to gambling websites through a third party does raise concerns, but in his view these difficulties do not negate the authority to do so. My view is different, and I will clarify my reasons.

13.       Our concern is with a district police commander who issued orders to the Internet access providers to block access to gambling sites. These are “personal orders” – in other words, orders directed at a particular person or entity, imposing a prohibition or a duty upon them. This is an individualized rule of conduct. This kind of order, like any administrative decision, requires a written statutory source (Zamir, at 284).  The question therefore is whether the district police commander is authorized to order the providers – a private body that is not accused of any offence – to perform various actions on behalf of the Israel Police, and to actually serve as its long arm. This authority, arguably, is found in section 229 of the Penal Law, which authorizes the district commander to order the “closure” of places used for gambling.  As mentioned, I accept that had law enforcement authorities been able to affect the closure of websites used for gambling criminalized under Israeli Law (for example by disconnecting the website from its connection to the Internet or by shutting down the server’s activity) there would be no question regarding authority.  However, in this case, the relevant websites were not actually “closed”. Instead, the district police commanders ordered third parties – the Internet access providers – to block access to those websites. The issue then becomes whether the powers granted by by section 229 support doing so.

14.       When a governmental authority is conferred with a power, according to settled case law, the authority must exercise this power itself. When the legislature specifies an authorized office holder, it is presumed the legislature wishes that particular office holder, and that alone, exercise it (HCJ 2303/90 Philipovitz v. Registrar of Companies [22] (hereinafter: Philipovitz), at p. 420; see also Daphne Barak-Erez Administrative Power, 178 -170 (hereinafter: Barak-Erez)). These comments are particularly true for criminal enforcement. In the absence of appropriate legislation, law enforcement authority cannot be given to those not part of the enforcement mechanism. Criminal enforcement authority is one of the classic authorities of the state. This authority enables the state to fulfill its responsibility to enforce criminal law through its own execution. It is the state that exercises the Government’s authority over the individual in the criminal proceeding. Therefore, the state – having established the behavioral norms and having been charged with their enforcement – is the entity directly responsible for caution and restraint required for exercising this power. It is the entity that is accountable to the public for the way it executes its powers (HCJ 2605/05 Academic Center for Law and Business v. Minister of Finance [23], para. 28 of former President D. Beinisch’s opinon and para. 14 of Justice A. Procaccia’s opinion.)

15.       By attempting to source the authority in section 229 of the Penal Law, the State maintains it is exercising the authority by itself, and that enlisting Internet access providers to block gambling websites is merely exercising auxiliary powers that administrative agency must employ in order to exercise its authority (section 17 of the Interpretation Law, 5741-1981). I cannot accept this construction. As well known, there is a distinction between delegating authority that includes exercise discretion regarding a particular authority, and receiving assistance in technical matters related to exercising the authority (Philipovitz [22] at p. 424). Whereas the authority is permitted to receive assistance from private bodies about technical aspects of fulfilling their task, there is also a presumption against delegating authority to private entities (AAA 6848/10 Erez v. Giva’ataim [24] para 18; HCJ 5031/10 Amutat Ir Amim v. Israel Nature and Parks Authority [25] para. 18). Here, the access providers were not required to exercise discretion regarding the websites to which access was to be blocked. As such, it could be argued on its face that the authority did not delegate power but only requested assistance in exercising it, and that such assistance is in principle permitted. However, where assistance is concerned, the first and foremost element to demonstrate is that the person or entity whose assistance is required consents to assisting the authority, regardless of whether consent is motivated by commercial and economic motives (compare to Philipovitz [22] at 415), or by voluntary motives. The most important thing is that the authority may receive assistance only from those seeking to offer assistance based on pure and genuine motives and after securing explicit consent. When the authority imposes a duty on a person or entity to perform any act, one can no longer speak of assistance. In our case, the Appellants claim that the expression “closing of a place for prohibited games” mentioned in the relevant section of the Penal Law, also contains the possibility of ordering closure of access routes to that place using auxiliary authority. This is not so. Our concern is with orders that compel a private body – the Internet access providers – to “assist” the authority. Consequently the argument that the providers are an entity that grants its services voluntarily must fail. This is doubly important when the orders themselves warned, in bold print, that failure to comply with the order could constitute an offence of breaching a statutory provision, an offense of assisting the conduct of prohibited games, and an offence of assisting to maintain a place for prohibited games (sections 287, 225, and 228 of the Penal Law, combined with section 31 thereof).

16.       Additionally, I wish to clarify that were there an explicit statutory authorization it could be possible to “impose a duty” and receive assistance from any person for the purpose of realize various legislative goals. Indeed, different pieces of legislation empower an authority to order a third party to assist it, even in the criminal context. For example, section 20 of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 5729-1969 provides that every person must help a police officer to arrest any person whom they are authorized to arrest. In a matter close to our own, a similar arrangement exists: the Criminal Procedure (Powers of Enforcement-Communication Data), 5768-2007 (also known as the “Big Brother Law”) allows Israeli investigatory authorities to be assisted by “holder[s] of a Bezeq license” (as defined there) in order to receive communications data on Bezeq subscribers for various purposes, such as discovering and preventing offences (section 1 and section 3(2) of this law). The various Internet providers are among the companies that may be required to submit communications data (see in the matter of the “Big Brother” law, para.2). This affirmation however also implies the opposite. Imposing a duty, coupled with a sanction, requires legislative bases. Without explicit legislative authority, it is impossible to charge a private entity with performing actions for the authority (compare: Civ.App. 90868/00 (District-T.A.) Netvision Ltd. v. Israel Defense Force- Military Police, para.9 (22.6.2000); Crim.F. 40206/05 (District-T.A.) State of Israel v. Philosof para. 8 b) (5.2.2007)). We are thus left with the need for explicit lawful authorization. In our case however, the language of section 229 of the Penal Law does not contain so much as the slightest hint of an authorization to impose a duty on a third party. And for good reason. Such authorization involves complex matters of law and policy.  In 2008, when the Knesset deliberated over the legislative amendments that would confer authority to block access to gambling websites, representatives of the Minister of Justice (as well as representatives of the police) expressed reservations about conferring authority as stated, for various reasons which will not be addressed here. Today the position of the authorities – with the support from the Attorney General – is different. Of course, the authorities are not bound by their former position, but the only lawful way to confer the district commander with the authority to order a third party service provider, in my view, is an amendment to primary legislation (an amendment which, needless to say, would have to satisfy the limitations clause in Basic Law: Human Dignity and Liberty). Accordingly, the manner in which the orders were issued here deviated from the principle of administrative legality, which is a fundamental norm of administrative law. “This principle teaches that the power of the public authority flows from the powers conferred upon it by law and nothing else. It is the law that grants the license to act, and defines the boundaries of its scope. This is the ABC of administrative law” (Baruch Beracha, Administrative Law, Vol.1 35 (1987); CA 630/97 Local Committee for Planning and Building Nahariya v. Shir Hatzafon Construction Company Ltd [26], at pp. 403-404; HCJ 5394/92 Hoppert v.'Yad Vashem' Holocaust Martyrs and Heroes Memorial Authority[27] at , 362 (1994);  HCJ 7368/06 Luxury Apartments Ltd v. Mayor of Yabneh [28], para. 33; see also HCJ 6824/07 Mana v  Taxation Authority[29]; HCJ 7455/05 Legal Forum for Land of Israel v. Israeli Government [30] at p. 910; Zamir, at 74-890; Barak-Erez at p. 97 and on). This is especially so in context of a mandatory authority, as anchored in the Penal law (see and compare Hardoof at p. 124).

17.       Could future legislation enable imposing the task of blocking gambling websites upon Internet access providers? An arrangement of this kind might take several forms. The legislature might determine that a court must grant such an order; it might grant the district police commanders – or any other authority – the authority to issue these orders, without petitioning a court (compare with “Big Brother” Law, para. 2). We assume that this legislation would also resolve additional concerns stemming from imposing the duty on access providers, while considering the costs likely involved in ensuring effective blocks, including the definition of access providers’ responsibility towards third parties, such as users and website owners whose access to them is blocked, and the like. In any event, it is clear that in our legal system the legislature is branch competent to consider the appropriate way to handle blocking access (Hardoof, ibid). Therefore we shall not jump the gun. We are not required at this point to pronounce on future legislation that has yet to be enacted and the details of remain unknown (and which, as mentioned, will also have to satisfy the limitations clause).

Other Legal Systems

18.       My colleague, Justice N. Sohlberg, found that restricting access to websites used for gambling is acceptable practice all over the world. Before we consider his comparative analysis, we should again note that the treatment of gambling in some countries is more lenient and as such no conclusive analogy can be drawn from the existing law in those countries to our legal system. On the merits of the matter, while certain countries receive assistance from Internet access providers to block gambling websites, as noted by my colleague, these are generally arrangements explicitly mandated by legislation, rather than acts designed to exercise general administrative powers. I will provide some examples.

19.       In the United States, gambling is regulated primarily at the state level rather than the federal level. There are significant differences between the various states in whether and how they view gambling and how they treat it. Federal legislation is therefore designed to assist states in enforcing local gambling laws where gambling activity extends beyond state-lines. Four primary pieces of federal legislation serve the authorities dealing with the gambling phenomenon: The first is the Federal Wire Act, of 1961 (18 U.S.C. §1084), which targets interstate gambling through linear communication. Though this law was enacted years before the Internet came into common use, and long before the online gambling became prevalent, this is legislation that authorities relied upon in the earlier days of the problem (see e.g. United States v. Cohen 260 F. 3d 68 (2d Cir. 2001)). The second act regulating the issue is the Illegal Gambling Business Act of 1970 (18 U.S.C. §1955) that was passed to battle organized crime that used gambling businesses as a main source of income, and it regulates the criminal responsibility of owners of large gambling businesses. The third is the Travel Act of 1961 (18 U.S.C. §1952), which prohibits the use of mail and interstate travel and travel outside the United States for unlawful purposes, including illegal gambling. The forth piece of legislation is the Unlawful Internet Gambling Enforcement Act (31 U.S.C. §5361-67), which prohibits gambling businesses from knowingly receiving payment linked to one’s participation in online gambling. It is interesting to note that law enforcement authorities occasionally found it difficult to rely on old statutes to receive Internet access providers’ assistance in closing gambling websites. Hence, for example, in April 2009 authorities in Minnesota instructed Internet service providers to block state residents’ access to 200 online gambling sites – an instruction given under the Federal Wire Act. However, this was challenged in court based on the argument that this act is inconsistent with the First Amendment’s protections for freedom of expression, and with the Commerce Clause (Edward Morse, Survey of Significant Developments in Internet Gambling, 65 Bus. Law, 309, 315 (2009)). In response, the Minnesota enforcement authorities withdrew the orders issues to the access providers (Lindo J. Shorey, Anthony R. Holtzman, Survey of Significant Developments in Internet Gambling 66 Bus. Law. 252 (2010)  

20.       In Australia, the Australian Communications and Media Authority’s power to order providers to block access to illegal gambling sites is regulated in detail in the “Interactive Gambling Act 2001 (sections 24-31) and in the regulatory code enacted under it (Interactive Gambling Industry Code (December 2001)). In Italy, a state my colleague referred to in his opinion, authorities’ authorization to order access providers to block illegal gambling sites is also set in legislation. Section 50(1) of Law No. 296 of 27 December 2006 (the Budget Law for 2007) established the authority of AAMS (Amministrazione Autonoma dei Monopoli di Stato), an organ of the Italian Ministry of Finance, to instruct, in an order to the communications bodies, to take measures toward removing illegal gambling websites, while setting an administrative fine of €30,000-80,000 for any breach by the communication providers. Under this law, Administrative Order No. 1034/CGV of 2 January 2007 was issued. It details the manner of exercising the power. According to the AAMS data, as of October 2010, 24000 websites were included in the “black list”. Every month hundreds of websites are added.

21.       Therefore we must conclude that even were there countries around the world that recognize the possibility of assistance from Internet access providers in blocking illegal gambling websites – this possibility is authorized there in explicit legislation. Where the subject was not regulated in explicit legislation, questions s about the power of the authorities to do so were raised in various countries, for reasons similar to those given by the District Court.

Afterword

 22.  Before concluding I would like to respond briefly to my colleague Justice N. Sohlberg’s comment regarding my position (para. 56 of his opinion). I wish to clarify that the thrust of my opinion does not turn on the interest of the access providers and the question of their concrete consent to blocking the websites. The conclusion I reached is based on the rule that an authority can only act within the boundaries of the powers the law conferred upon it, and that when exercising police powers the strict application of this rule is especially important. I would point out that I do not accept, as a given, my colleague’s assumption that a third party can be compelled to become “the long arm” of the police without its consent. Take a situation in which the reception clerk of a hotel (an example my colleague provides) fears a confrontation with criminal elements and has no interest in coming into contact with them. Would it also be possible then to compel the clerk to close the room? In my view this question is not free of doubt, but regardless, this we are required to rule on this question. In our case the totality of the circumstances that I presented and the sensitivity of the material discussed, in my view, lead to the conclusion that the existing authorization lacks the power necessary for exercising the alleged authority. 

Epilogue

I have reached the conclusion that section 229 of the Criminal Law does not authorize a district police chief to issue orders directed at Internet access providers, ordering them to block access to gambling websites. In my view, this requires express statutory authorization and the current arrangement is insufficient, because it does not contain authorization to order a third party to assist the enforcement authorities in exercising the power.

            For this reason, were my opinion to be followed, I would dismiss the appeal against the decision of the Administrative Affairs Court and would order the Appellants to pay the Respondents’ attorneys fee, for the sum of NIS 25,000.

 

                                                                                                Justice

 

President A. Grunis

My colleagues, N. Sohlberg and U. Vogelman are in dispute both about the preliminary issue of the locus standi of the Appellant and about the substantive issue of the district police commander’s authority. Regarding the first matter I see no reason to express a position. My colleague, Justice N. Sohlberg who addressed the position that the Appellant had no locus standi in the Administrative Affairs Court, analyzed the substantive issue, and concluded that it would not be proper to allow the appeal based on the preliminary issue without having considered the legality of the orders issued by the district police commanders. Under these circumstances I agree that it is appropriate to address the issue on its merits. Regarding the substantive issue, I concur with Justice U. Vogelman. That is to say, that I agree that the district commanders of the Israel Police do not currently have the authority to issue orders to Internet access providers to block access to gambling websites. The solution lies with the legislature.

 

                                                                                                            The President

 

It was decided by a majority opinion (President A. Grunis and Justice U. Vogelman) against Justice N. Sohlberg’s dissent, to dismiss the appeal, and to order the Appellants to pay the Respondent’s attorneys fees in the sum of NIS 25,000.

 

Handed down today 13th Nissan 5773 (24 March 2013).

 

 

H.C.J 100/57

H.C.J 103/57

 

           

IZHAK WEISS

v.

THE INSPECTOR GENERAL OF THE ISRAEL POLICE AND ANOTHER.

H.C.J 100/57

 

 

YOHANAN MILLER

v.

THE INSPECTOR GENERAL OF THE ISRAEL POLICE AND ANOTHER.

H.C.J 103/57

 

           

In the Supreme Court sitting as the High Court of Justice.

[February 13, 1958]

Before Olshan P., Sussman J., and Landau J.

 

 

 

Jurisdiction - Police Ordinance - Court of Discipline - Offence committed by Police in Gaza Strip after Sinai Campaign - Distinction between jurisdiction of Court of Discipline and ordinary criminal jurisdiction - Jurisdiction personal and  not territorial - International Law.

 

                The petitioners were members of the Israel Police Force. They were sent to the "Gaza strip" when it was occupied by Israel armed forces after the Sinai Campaign to do normal police work there. In contravention of an order forbidding the purchase of goods, they bought nylon material, medicines, cameras and films. They were charged before a Court of Discipline which was set up under the Police Ordinance. The petitioners contended that the court had no jurisdiction to hear charges against them because, inter alia, the Police Ordinance only dealt and could only deal with offences committed in Israel and not with offences committed in Gaza which was not part of Israel and had not even been declared to be the occupied territory of Israel. They obtained an order nisi from the High Court calling upon the Inspector General of the Israel Police and the Court of Discipline to show cause why the proceedings against the petitioners should not be discontinued.

           

            Held, discharging the orders nisi, that the jurisdiction of the Court of Discipline, which was established for preventing the lowering of the standards of the police, is not the same as ordinary criminal jurisdiction, but is personal and not territorial. The tribunal, therefore, had jurisdiction in the present case, although the offences were committed beyond the territory of Israel.

               

Palestine case referred to:

 

(1)        Privy Council Appeal 24/45 Lipshitz v. Valero & Others (1947), 14 P.L.R. 437.

 

            Israel cases referred to:

 

(2)        H.C. 279/51 Amsterdam & Others v. Minister of Finance (1952), 6 P.D. 945.

(3)        Cr. A. 126/51 EI-Tourani v. Attorney-General (1952), 6 P.D.1145.

(4)        Cr. A. 174/54 Shtampfer v. Attorney-General (1956), 10 P.D. 5.

(5)        H.C. 27/48 Lahisse v. Minister of Defence & Others (1949), 2 P.D. 153.

(6)   H.C. 268/52, H.C. 47/53 Sapoznikov & Others v. Disciplinary Tribunal (1953), 7 P.D. 656.

(7)   H.C. 13/57 Tsimoukin v. Civil Service Disciplinary Tribunal & Others (1957), 11 P.D. 856.

(8)        Cr. A. 20/53 Neiman & Others v. Attorney-General (1955), 9 P.D. 845.

(9)        C.F. 82/51 Haifa, Attorney-General v. A.B. (1951/52), 5 P.M. 123.

(10)      C.F. 208/52 Jerusalem, Shababo's Heirs & Others v. Heilin (1952/53), 8 P.M. 455.

 

English cases referred to: -

 

(11)      Niboyet v. Niboyet: (1878), 4 P.D. 1.

(12)      Re A Solicitor, Ex parte Incorporated Law Society: (1898), 1 Q.B. 331.

(13)      R. v. Casement: (1917) 1 K.B. 98.

 

Rabinovitch for the petitioners.

H.H. Cohn, Attorney-General, for the respondents.

 

LANDAU, J. The question raised in both these petitions is whether a Court of Discipline of the Israel Police Force has jurisdiction to deal with offences against discipline committed by Israel policemen in the Gaza strip at the time when the strip was in the occupation of the Israel Defence Forces.

 

            Both the petitioners are serving in the Frontier Force, Israel Police. The petitioner in File No. 100/57 holds the rank of assistant district inspector and the petitioner in File No. 103/57, the rank of police sergeant. During November and December, 1956, they served with the Israel Police Force in the Gaza district. In April, 1957, they were charged together with a third policeman before a Court of Discipline of the Israel Police on nine counts in connection with the purchase of various goods (nylon cloth, medicines, cameras and films) in the months of November and December, 1956, in Gaza, contrary to the orders given by the Deputy Inspector of Police, Gaza District, and, alternatively, by the Military Governor and, alternatively, contrary to standing orders for the Gaze area, all of which prohibited the purchase of goods in Gaza by anyone not a local inhabitant. These offences were described in the indictment as disobedience to an oral order duly given by a superior officer (that is to say an oral order given by the Deputy Inspector of Police, Gaza area); and as disobedience to an order duly given in writing by a superior officer (that is to say standing orders for the Gaza area) all of which are offences against the good order and discipline of the Police Force as set out in s. 18(1)(i) of the Palestine Police Ordinance and paragraphs 1 and 84 of the addendum to the Police (Definition of Disci­plinary Offences) Rules, 1955. The tenth count was confined to the petitioner Weiss for leaving without a reasonable cause the area of duty, contrary to paragraph 7 of the addendum - in that on December 1, 1956, being a member of the Police Force and serving in Gaza, he left the Gaza area and proceeded to Migdal without reasonable cause and, finally, the eleventh count also against the same petitioner and again contrary to paragraph 1 of the addendum - in that on the same day he used a police transport car for a purpose not connected with police duty, namely transporting goods contrary to orders of police headquarters.

 

            In their petition to the court, the applicants claimed that the Court of Discipline had no jurisdiction to deal with these offences. This court has issued orders nisi against the Inspector General of the Israel Police and against the Court of Discipline to appear and show cause why the proceedings before the Court of Discipline should not be discontinued and the complaint lodged before it struck out.

           

            The Attorney-General, who represented the respondents on the return day, did not deny the facts as set out in the petition, and the difference between the parties concerns the legal questions alone. The facts necessary to understand the dispute are shortly these: -

 

            (a) On the conquest of the Gaza strip by the Israel Defence Forces, the area was placed under martial law. The Israel Police entered the district at the request of the army for the purpose of doing police duty there. In an order setting out the "powers of the Israel Police in the district of Gaza in accordance with the law in force in the district of Gaza" which was issued by the Israel Army Commander, Gaza, to the Inspector General of the Israel Police, the Army Commander, by virtue of his authority, ordered that "the Israel Police Force is as from November 15, 1956, authorised to act in the Gaza area as a police force in accordance with the Police Ordinance as it was in force in Palestine on May 15, 1948, with such amendments as were added thereafter in the Gaza District". It was further ordered, "that every policeman or officer duly appointed in Israel shall have the right in the Gaza District to exercise the same powers that he had in Israel." The petitioners claim that they went to the Gaza strip after its conquest by the Israel Army and stayed there from time to time. It must be presumed that during those times they were there on police duty.

 

(b) In the order of the Military Commander which was mentioned in the indictment against the petitioners before the Court of Discipline, the purchase or sale of anything by anyone who was not a local inhabitant of the Gaza District was forbidden except by permission of the Commander or on his behalf. The order further provided that anyone contravening its provisions would be tried, in the words of the order, "by a military court set up to try offences against the Defence (Emergency) Regulations, 1945, and shall be liable to imprisonment for up to 3 years or a fine of up to IL. 1,000.- or both". We have also been told that the standing order for the Gaza area mentioned in the indictment repeated the contents of this order of the Military Commander.

 

(c) The area of the Gaza strip had not been declared as an 'occupied area' in accordance with section 1 of the Judicial and Administrative Areas Law, 1948. In the proclamation issued by the Commander of the Israel Army in the Gaza strip on November 13, 1956, it was declared that "the laws which were in force in the District on November 1, 1956. shall remain valid in so far as they shall not be contrary to this Proclamation or other proclamations or orders that have been given or will be given by me and subject to such modifications as the establishment in the Gaza District of martial law by the Defence Army of Israel may make necessary."

 

 (d) No proclamation was made according to section 51 of the Police Ordinance 1⁾ that enabled the Police Force or any part thereof to be placed under military command.

 

            Counsel for the petitioners, Mr. Rabinovitch, claims that the above facts do not entitle the Court of Discipline to entertain jurisdiction and try his clients for what they did during their stay in the Gaza district, that the jurisdiction of the Court of Discipline was derived from section 18 of the Police Ordinance, that the whole of the Ordinance, and therefore also the disciplinary jurisdiction provided for by it, apply only to acts committed within the State of Israel, that is to say, within the area to which the law of the State of Israel applies according to the Judicial and Administrative Areas Law. For the same reason the superior officers of the appellants in the Police Force had no legal right to send them outside the State of Israel. Further, the jurisdiction of the Court of Discipline set up under the Police Ordinance was a criminal jurisdiction and the acts alleged against the petitioners in the indictment were criminal acts and for this reason as well, there was no jurisdiction to try them. Criminal jurisdiction, they submitted, is territorial, that is to say limited to acts committed within the borders of the State, unless otherwise provided in the law - and there was no such provision. If it was possible to try the petitioners at all, either it would have to be done in accordance with the Police Ordinance, and such amendments of it as were made after 15.5.48 in the Gaza district - and no such amendments were called to our attention - or the petitioners should have been tried under martial law in accordance with the Order of the Military Governor.

 

            In spite of the exhaustive arguments of counsel for the petitioners, I have come to the conclusion that these applications must be dismissed and that the Police Court of Discipline had jurisdiction to try the petitioners for the offences set out in the indictment submitted before it.

           

            Counsel for the petitioners quoted at length from the judgment of Agranat J. in Amsterdam v. Minister of Finance (2), and indeed we can gather from this illuminating precedent the following principles relevant to this case: -

           

(a) From the point of view of internal ('municipal') law there is no restriction upon the power of a legislator possessing sovereign jurisdiction to enact laws concerning property and persons even if they are situated outside the borders of the State (ibid., at pp. 965, 966).

 

(b) Nevertheless the common law (and following it also Israel Law) recognises the principle that a law passed by Parliament applies only within the territory of the State unless it is otherwise provided, either expressly or by implication (ibid., at pp. 967, 968).

 

(c) An implied intention not to follow the territorial principle can be gathered from the general purpose of the law viewed as a whole in all its sections, or from the nature of the provisions of the law under consideration (ibid. p. 968, also the conclusions at p. 971).

 

            There is no conflict between these principles and Article 38 of the Palestine Order in Council, on which counsel for the petitioner relies. This Article (as amended in 1935) provides:

           

                        "Subject to the provisions of this part of the Order and any Ordinance or Rules the civil courts hereinafter described and any other courts or tribunals constituted by or under any of the provisions of any Ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine" (substitute Israel).

           

 ject to the provisions) were meant to restrict and not to extend what is said in the body of the Article in the same way as similar words in the first paragraph of Article 431⁾ must be read restrictively (see Lipshitz v. Valero (l)). Does this mean, then, that according to the interpretation of this Article the civil courts in Israel have territorial jurisdiction only in respect of property and persons within the State? If this were so, this would seriously limit the above principle that a sovereign legislator has power to make laws applicable to matters and persons even if they are outside the borders of the State. For what is the use of a law which is meant to apply extra-territorially if the court has no power to enforce it? Both these matters are the two sides of the same coin. This proposition would lead us to the surprising conclusion that there was no validity to such laws as section 5 of the Ottoman Code of Criminal Procedure and the Rules for serving abroad of a summons to appear for trial before a civil court.

 

            The Attorney-General contended in this connection that the words "all matters and over all persons" in Article 38 do not mean that in a trial before the court both the matter and the person concerned must be within the boundaries of the State but that it would be sufficient if one or the other was in Israel. That is to say that for the purpose of Article 38 it would be enough in the case before us if the petitioners were to be present in Israel at the time of their trial although the incidents being the subject matter of the prosecution took place outside the boundaries of the State. I personally expressed  a similar opinion in the case of the Attorney-General v. A.B. (9). The judgment in that case was confirmed in EI-Tourani v. Attorney-General (3). This would be a sufficient answer here were we to hold that in Article 38 the legislator had made provisions concerning the jurisdiction of the courts of the State over persons or matters outside the State.

 

            But on further consideration it seems to me that this proposition itself is doubtful especially as regards the question of the extraterritorial jurisdiction of the courts in criminal cases. Article 38 is phrased in language commonly used in English statutes and had the legislator intended to make rules on this matter he would no doubt have been more exact and would have said that the local courts had jurisdiction in criminal matters when the accused at the time of committing the offence was within the country. For as is well known according to English law, the jurisdiction of a court to try an accused for a crime depends first and foremost on the place where the accused was at the time when the offence was committed. But according to Article 38 the jurisdiction of the court would be made dependent on the place where the accused is found at the time of trial. From this we see that this Article is not dealing with the question of extra-territorial jurisdiction of the court but with a different question altogether - that is to say with defining the boundary line of the jurisdiction of the civil courts therein mentioned and that of the other courts with limited jurisdiction, especially the religious courts. The legislator lays down that the jurisdiction of the civil courts is general, covering all persons and all property in Palestine, subject always to such limitations as are set out in the law as, for instance, Article 51(1) in connection with the jurisdiction of the religious courts in matters of personal status. Article 38 does not deal at all with the power of the Mandatory legislator to issue laws with extra-territorial effect or with the courts to enforce these laws. In other words the emphasis in this Article is on the comprehensive nature of the jurisdiction over all persons and all property in the land but it does not exclude additional jurisdiction - which need not necessarily be comprehensive - with regard to persons or property outside the country or with regard to causes of action originating abroad.

           

            I find support for my views in the judgment of Witkon J. which was given by him whilst sitting in the District Court in the case of Shababo's Heirs v. Heilin (10). That judgment was cited with approval by this court in Shtampfer v. Attorney-General (4). The subject-matter of that case was the immunity enjoyed by foreign diplomats and it was contended that Article 38 repudiated this claim to immunity. It is true that that case was different from the one before us because there an attempt was made to limit the comprehensive scope of the jurisdiction of the courts over all persons within the boundaries of the State. That contention, of course, could not possibly stand because Article 38 is also subject to and is restricted by Article 46 of the Order in Council 1⁾ which transfers to the body of the local law the rules of the common law relating to immunity of foreign diplomats. But in the course of his judgment Witkon. J. said : -

 

            "Article 38 is a kind of introduction to that part of the Order in Council which deals with the administration of justice by the courts and the division of their jurisdictions between the various courts themselves. The article is not meant to lay down rules in the field of International Law."

           

            With respect, I should like to agree with those words which also apply to our case. Consequently therefore (so long as there is no law enacted specifically on the subject) the general principles of the common law with regard to extending the extra-territorial jurisdiction of the local courts apply in this country. And this is not because the first words in Article 38 are directed to Article 46 but because of the provisions of Article 46 itself without any reference at all to Article 38.

           

            The law applying in the case before us is the law which was in force before the enactment of the Courts Law, 1957. In this connection however it is necessary to point out that the Israel legislator was of the opinion, it would seem, that the introductory proviso in Article 38 could be dispensed with altogether, for this Article was repealed by s. 48(8) of the Courts Law without being re-enacted.

           

            Counsel for the petitioners contends further that the jurisdiction of the Police Court of Discipline is by its very nature criminal and that, unless the law expressly provides otherwise, criminal jurisdiction is territorial and that the Police Ordinance has no such provision at all; on the contrary it has clear indications that it was intended to apply only within the confines of the territory of the State.

           

            Counsel for the petitioners is correct when he says that the basic principle of the criminal jurisdiction of the court is territorial. Such is the English law (see Halsbury, third edition, Vol. 10, p. 317, s. 579) and we have the same principle as it came to us through section 6 of the Criminal Code Ordinance. 1936. But this law is not without its exceptions. There are such exceptions in English law which were created by special statutes to cover certain crimes which were committed by British subjects outside England such as, for example, treason, homicide, bigamy (Halsbury, ibid., at p. 322 ff.). In Niboyet v. Niboyet (11), Brett, L. J. laid down the principle as follows: -

 

            "All criminal statutes are in their terms general but they apply only to offences committed within the terri­tory (of the State) or by British subjects" (p. 20).

           

From the historical point of view the personal principle preceded the territorial in criminal law, having its origin in the feudal notion of the tie of allegiance binding the king and his subjects. As we have said the principle continues to exist even today in connection with certain crimes and it does so side by side with the territorial principle which has in these days become more important. According to International Law too every State is entitled to exercise its legal jurisdiction over its subjects even whilst they are abroad. See for instance how Schwarzenberger in A Manual of International Law, third edition, p. 42, explains the historical transition from the personal principle to the territorial principle in modern times. He writes as follows: -

 

            "Thus the conception of territorial - as distinct from personal - sovereignty and jurisdiction developed, and the notion of personal sovereignty was pushed into the background. It would not, however, be correct to assume that the conception of territorial jurisdiction completely replaced that of personal jurisdiction. In modern international law the conceptions of personal and territorial jurisdiction exist side by side, though with the emphasis on territorial sovereignty."

 

And Oppenheim in the eighth edition of his book, vol. I at p. 330 says: -

 

            "The Law of Nations does not prevent a State from exercising jurisdiction within its own territory over its subjects travelling or residing abroad, since they remain under its personal supremacy."

 

            Thus our own Criminal Code Ordinance in section 3 (b)1⁾ strays from the territorial principle in prosecutions for crime and the same is the case in Article 3 of the Army Code (see Lahisse v. Minister of Defence (5), paragraph 31 of the judgment at p. 166). Further, the Israel legislator has recently abandoned the territorial principle to an even greater extent in the Criminal Amendment (Offences Committed Abroad) Law, 1955.

           

            I have dwelt at length on these matters because as we shall see they are of some importance: not that I am to be taken as agreeing with the contention of counsel for the petitioners that trials before a Police Court of Discipline are subject to the principle of territorial jurisdiction of criminal trials. Counsel for the petitioners relies on the judgment of Sussman, J. in Sapoznikov v. Disciplinary Tribunal (6), which upheld the jurisdiction of the same Court of Discipline to deal with an offence "of a civil nature", such as rape, although purporting to be an offence against discipline for acting in a manner likely to bring discredit on the good name of the force (ibid. at p. 662). The view was expressed in that judgment (at the end of p. 661) that a policeman who had been convicted in such a prosecution before a Court of Discipline could plead "autrefois convict" in a prosecution for the same offence before an ordinary court. The President of the court, dissenting, differed from this way of interpreting the law which would give to a policeman a special status that was better than that of an ordinary citizen as regards responsibilty for criminal acts that had nothing to do with his police duties (ibid. at p. 665). Counsel for the petitioners also cited the words of my judgment in Tsimoukin v. Civil Service Disciplinary Tribunal (7), where I respectfully agreed with the opinion of Sussman J. that the trial of a policeman before a Court of Discipline might induce an ordinary court to accept a plea of 'double jeopardy' and I added that such a trial was "very much like an ordinary criminal trial". Such a similarity no doubt exists especially in 'civil crimes' that are triable before a Court of Discipline. But we must not conclude from this that because the methods of the trials are similar, that trial before a Court of Discipline is in its nature essentially identical with that of an ordinary criminal trial. Regarding this point Cheshin, D.P. said this in Tsimoukin v. Civil Service Disciplinary Tribunal (7), at p. 861: -

 

            "The object of a trial before a criminal court is not the same as that of a trial before a court of discipline. In a criminal prosecution the purpose is to find out whether the accused has broken the law and whether he should receive the punishment prescribed by law; whereas the purpose of a trial before a court of discipline is not so much to punish the 'criminal' as to establish first and foremost whether he is still worthy of the trust which the authorities and the public had placed in him before he came under suspicion."

 

            We have to note in this connection that although according to section 18 (6) of the Police Ordinance the accused who is charged before a Court of Discipline is liable to both imprisonment and fine, according to section 18 (7) he is liable to dismissal which is the penalty par excellence of proceedings before a Court of Discipline.

           

            In a judgment on the same subject, I said in Tsimoukin v. Civil Service Tribunal (7), supra, that "proceedings before a Court of Discipline are sui generic and the usual notions regarding criminal or civil proceedings do not fit them completely". In spite of the fact, undesirable though it may be, that a policeman who has committed a crime might escape punishment in a prosecution for the same act before an ordinary court after a trial before a Court of Discipline, the purpose of proceedings before a Court of Discipline is completely different from that of regular criminal proceedings, in that it is meant to preserve the discipline and good order of the Police Force and to eliminate all unworthy elements from its ranks.

           

            Because of this difference in purpose, one cannot apply to trials before a Court of Discipline the principle of territorial jurisdiction which is characteristic of criminal trials - that is that criminal enactments are applicable only to offences committed within the State unless otherwise specifically provided.

           

            Because of this difference, the position is the same even if the acts in respect of which the petitioners were accused may also possibly be criminal offences against the Defence (Emergency) Regulations, 1945, in accordance with the order of the Military Commander. For at the hearing before the Court of Discipline these acts will be considered not from the point of view of their being crimes as of their being offences against discipline, in that the petitioners disobeyed orders which were given to them in their capacity as policemen.

 

            We return therefore to the general basic principle set out above following the judgment in Amsterdam v. Minister of Finance (2), that every enactment is territorial in application unless otherwise expressly or by implication stated; that the intention not to follow the territorial principle can also be gathered from the general object of the law as appearing in all its several parts or from the nature of the particular legal provision that is under the consideration of the court. In connection with this point, counsel for the petitioners, as will be remembered, contended that the Police Ordinance not only does not disclose that it meant to disregard the territorial principle but that, on the contrary, it had many sections that supported it. For instance, it is said in section 3 that "there shall be established in Palestine a Force to be known as the Police Force" and section 16 provides that "A police officer, when in Palestine shall..... be considered to be always on duty: he may at any time be employed in any part of Palestine" (now Israel).

           

            This being the case, Mr. Rabinovitch contends that the service of the petitioners by its very nature is confined to the area where they are obliged to serve and it was illegal to have sent them outside that area and having been sent there they did not take with them the special law, the Police Ordinance, that applies to them, and with it the jurisdiction of a Court of Discipline set up under it.

           

            The Attorney-General's reply to this contention is that no matter how the Police Ordinance was meant to be interpreted in the days of the Mandate, the fact that there is now a sovereign State makes all the difference. And from now on we have to consider the Ordinance as authorising the employment for service of the Israel Police Force in all areas, even outside the boundaries of the State, which are in fact under the control of the State and where the Israel authorities are bound to keep the peace among civilians. This is the conclusion of the Attorney-General who considers it to be in accordance with International Law which permits a State to send its armed forces outside its boundaries.

 

            This answer to the contention of counsel for the petitioners does not seem to me to be convincing. It is possible that the "territorial" sections of the Police Ordinance were originally enacted so that the law should be in harmony with the obligations of Palestine owing to its status as a country under mandate. But does this entitle us to breathe new life into these sections to make them fit the changes brought about by the creation of the State, as the Attorney-General is asking us to do ? There would of course have been no problem on this point had Israel proclaimed the Gaza strip to be occupied territory. But the Minister of Defence has refrained from issuing such a proclamation. The question therefore is whether there is any legal principle under which one can consider a policeman who is serving in an area which is in fact under the control of the State as if he were serving within the State itself. I have found no such rule either in our own municipal law or in International Law. The function of the police is of course to keep order within the State whereas it is the duty of the army to preserve the peace against all dangers from without. When a State sends its army outside its borders and conquers additional territory which it occupies without extending its sovereignty over it, it is occupying the territory through its army which sets up military rule therein. (See Oppenheim, seventh edition, vol. II, p. 438). Israel too has acted in this way with regard to the Gaza strip, that is to say it established there a military government from which all other authority was derived. The civilian police also- functioned in fact within this framework, for this force had been asked to operate there by the army, under whose command it was placed. And within this framework it carried out police duties among the local inhabitants. The Attorney-General has contended that the police are part of the armed forces of the State which are bound to serve also outside its borders and which in any case carry with them the prerogative of the State to try them wherever they are. As far as the army is concerned, it is true that this principle has received expression in sections 13 and 14 of the Military Justice Law, 1955, which provide for trial by court martial of members of the Israel Army in respect of military and other offences committed whether '"inside or outside" the boundaries of the State.

           

            But where is the authority for the proposition that for this purpose the civil police are part of the armed forces of the State? Section 51 of the Police Ordinance enables the Minister of Police during a war or an emergency to issue a proclamation declaring that the Police Force or some part of it is to be considered as a military unit; and on the declaration being made certain consequences follow as enumerated in the relevant section of the Ordinance. Such a declaration was never issued in connection with the Israel Police in the Gaza strip. Had it been, it is possible that those policemen who had been sent there for service would have been considered as soldiers also in this respect that they too were under an obligation to serve outside the area where Israel law applies. In the absence of such a proclamation, there was no legal authority to compel them to serve anywhere except within that part of the territory of the State where a policeman is bound to serve in accordance with the Police Ordinance. We cannot therefore consider this as being the source from which the Court of Discipline derived the necessary jurisdiction to try the petitioners whilst they were in the Gaza strip.

 

            But this does not end the matter. They were under no duty to serve in the Gaza strip and had the petitioners refused at the proper time to be transferred there, in my opinion, it would not have been considered on their part as a breach of duty. But nothing prevented them from agreeing of their own free will to undertake this additional service. A policeman may also volunteer to perform a service outside the State. It is sometimes necessary, for instance, to send police officers abroad, to make contact with the police of another State in connection with the investigation of a crime which a local resident is suspected of having committed. A policeman who undertakes such a task does not cease to be a policeman when abroad. I see no difference in principle between such a case and what happened here - except on a bigger scale - with regard to the Israel Police Force serving in the Gaza strip, that is to say in a place in Palestine outside the area where the law of the State of Israel applies. We have not heard that the petitioners objected to or protested against their being sent to the Gaza strip. In their application they say simply that "they went there". It seems that they must be considered as volunteers who undertook to perform a service which they were not obliged to do. But from its nature this was police work. If we come to the conclusion that the jurisdiction of a Court of Discipline is not territorial but personal in character, that is to say that it also exists in relation to matters connected with the behaviour of a policeman, wherever he is, even outside the State, then there is no difference between a policeman who went there under an order or as a volunteer. We dealt with a similar problem - though in another field - in Neiman v. Attorney-General (8). There the appellant, a clerk of the Jerusalem Municipality, claimed that he could not be held guilty under section 140 of the Criminal Code Ordinance, 1936 (Breaches of Trust by Public Officers) because the act was committed in Bet-Mazmil which was outside the area of the Municipality of Jerusalem. In rejecting this claim, this court said (at p. 857) :

 

            "Mr. Meridor was unable to cite any authority according to which an official, such as the appellant, would be exempt from liability if he could show that what he did was outside the confines of jurisdiction of the public body employing him..... The work at Bet-Mazmil was done in accordance with the decision of the Municipality, the way it was done was no different at all from the usual way of doing such things at the Municipality and the second appellant did this work in the course of his usual duties."

 

            And the same can be said in our case: the duties with which the petitioners were charged were ordinary police duties which had to be performed in accordance with the rules of discipline when carrying them out.

           

            We thus come to the decisive question in its simplest form : What is the nature, then, of a trial before a police Court of Discipline - is it connected with the territory of the State or is it per­sonal, that is connected with the man ? Counsel for the parties have carefully searched for precedents dealing directly with this question and have found none. I too have searched to no effect. The Attorney-General has mentioned an English judgment in re A Solicitor (12). In that case the English court was asked to revoke the licence of an English solicitor because of his misconduct in South Africa. The application was refused because the court was not prepared to accept, as the only ground for its decision, the judgment of the court of South Africa which had revoked the licence of the solicitor in that country. But this judgment can also be taken as ruling - although the question was not specifically considered - that had there been sufficient proof before the English court it would not have hesitated in granting the application, although the charge was in respect of an offence against discipline which was committed abroad. Wright, J. said at p. 662:

           

            "I do not say at all that there may not be cases where a solicitor is struck off the rolls by a foreign court when this court ought to - and probably would act - if the facts were brought before it in a proper way and if it could see clearly what it was that the solicitor had done....."

           

            In order to test the nature of disciplinary jurisdiction in the absence of direct authority we can only solve the problem in the light of general considerations and by reference to two opposing principles- the territorial principle and the personal principle - and decide which of these two is more appropriate to the jurisdiction in question.

 

            As I have already hinted, the territorial principle of jurisdiction is strongly linked to the notion of sovereignty of a State over its territory, whereas the personal principle is connected with the tie of personal allegiance existing between the sovereign and his subject. When we base jurisdiction on the notion of the sovereignty of each State within its own territory, it becomes clear that on the one hand the State is entitled to adjudicate on all matters within its territory, irrespective of the persons concerned and that on the other, an offence or some other act committed outside that territory must, as a matter of course, come within the jurisdiction of the foreign State where the offence or other act took place. An ideal division of jurisdiction between States based purely on territorial principles would require each State, in its administration of justice, to confine itself to matters taking place within its own borders and every time a State went beyond these it would be considered as interfering in the internal affairs of another State. (We have seen that this principle is not carried out in practice in its entirety but that it is sometimes mixed with elements having the characteristics of personal jurisdiction which result in fact in parallel proceedings in the courts of two States.) But when does this happen ? When the other State also claims for itself the right to try the persons concerned in the same matter. Every civilized State for example is prompt in punishing crimes committed within its borders and is willing to enforce civil obligations created there. But when the foreign State is indifferent to the same act and does not react at all to it, no clash need be feared between two different judicial jurisdictions. Now every trial by a Court of Discipline is held within the framework of some organisation which is either international or is limited to one State. If international, then it certainly is not confined to the area of any one State and if it is national no other State would have any interest in its doings. In any case no conflict can arise between two judicial jurisdictions. If, for instance, an Israel policeman committed an act which was a breach of discipline, whilst in France, that aspect of his behaviour would be of no interest to France.

 

            Further, as the Attorney-General has pointed out, the Gaza strip is not within the sovereign jurisdiction of any other State and for this reason too one cannot speak here of a conflict with the lawful jurisdiction of another State.

           

            So far I have dealt only with the point of inter-State relations according to which there is no objection to the extension of the jurisdiction of Courts of Discipline to deal with acts that took place outside the borders of the State. But that does not cover the whole problem. For the basic principle is that prima facie all jurisdiction is territorial and before it can be extended beyond the boundaries of the State, one has to show clearly that this was the intention of the law either expressed or implied. I am of the opinion that such an intention can also be implied from the very nature of a trial before a Court of Discipline. As I have said such a trial is held within the framework of some special organisation and concerns no one who does not personally belong to this particular body. Its purpose is to prevent the lowering of the professional standards of members of the organisation. Each such member has special duties and in consequence generally enjoys special privileges, all of which require the upholding of a special standard to ensure the effective functioning of the organisation and the protection of its reputation vis-a-vis others. These rights and duties too are personal to the member of the organisation and they forge a special tie of allegiance between him and it. One may draw in this connection a close comparison with the duty of personal allegiance which is at the root of jurisdiction, based on the personal principle. Here is a description by an ancient English writer explaining why the jurisdiction in a trial for high treason is personal [Foster in Crown Law, quoted in R. v. Casement (13)]:

 

            "With regard to natural born subjects there can be no doubt. They owe allegiance to the Crown at all times and in all places. ...

 

            Natural allegiance is founded in the relation every man standing in to the Crown, considered as the head of that society whereof he is born a member; and on the peculiar privileges he derived from that relation..."

           

            When we divest this conception of its 'royal' apparel does it not also fit the relationship of loyalty, to protect which, trial before a Court of Discipline is provided ? It is clear that such a relationship cannot be subject to any territorial limitation as it is necessary to protect the professional standards of a man who is subject to the discipline of an organisation "at all times and in all places" wherever he may be carrying out his duties. It would be unreasonable to give the law another interpretation whereby a policeman on police duty abroad would move about in a vacuum, as it were, as far as discipline was concerned.

           

            Finally I will answer briefly two further contentions of counsel for the petitioners: First that the petitioners should have been court-martialled for contravening the order of the Military Governor. Possibly they were also liable at the time to be called to account for the actions of which they are accused by being prosecuted before the Israel Military Court in the Gaza strip; but this was not done. The fact that this method was not used can certainly not prevent their being charged before a Court of Discipline for breach of discipline and misbehaviour which the actions themselves imply. The second contention of the petitioners was that the Court of Discipline when trying them should apply, with all its amendments which are unknown to us, the Police Ordinance as it was in force in the Gaza strip on the eve of its conquest by the Israel Army. This contention is based on the orders of the Military Governor for the Gaza District which authorised the Israel Police Force to operate as the 'Gaza Police Force' in accordance with the Police Ordinance with all its amendments made for Gaza. But this law applied in relation to the powers of the Gaza Police vis-a-vis the public when dealing with the local inhabitants. Vis-a-vis the Force the petitioners remained Israel policemen even whilst serving in the Gaza Police and as such they continued to be subject to the jurisdiction of a Court of Discipline to try them in accordance with the Police Ordinance as it was in force in the State of Israel.

           

            I am accordingy of the opinion that the orders nisi must be set aside, and the applications of both petitioners dismissed.

           

SUSSMAN J. I concur.

 

 OLSHAN. P. I concur. I am of the opinion that the question whether a person who is serving in the Police Force can be sent abroad in connection with his police duties, without his own consent, needs further consideration.

 

Order nisi discharged.

Judgment given on February 13, 1958.

Crim. A. 112/50

 

           

GAD BEN-IZHAK YOSIFOF

v.

THE ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal.

[March 29, 1951]

Before: Smoira P., Silberg J., and Landau J.

 

           

Criminal Law - Bigamy committed by Jews contrary to s. 181 of Criminal Code Ordinance, 1936 - Whether section ultra vires on grounds of discrimination - Jewish Law - Freedom of religion and conscience - Prohibition of polygamy not contrary to Jewish Law.

           

                The appellant, an Israel Jew belonging to the Caucasian community, married in the year 1936. He married a second time in the year 1950 while the first marriage still subsisted. He was convicted of bigamy under s. 181 of the Criminal Code Ordinance, 1936 1) and sentenced to imprisonment for one year. On appeal it was argued that s. 181 was ultra vires the powers of the High Commissioner by reason of Article 17(1)(a) 2)2) of the Palestine Order in Council 1922 (as amended) in that the section introduced discrimination between the inhabitants of Palestine, namely, between Moslems and Jews, and in that it restricted freedom of conscience and worship.

               

                Held:      Dismissing the appeal,

          (1) that as the section did not discriminate against men and women of the same community regarded as one unit there was no discrimination within the meaning of Article 17(1)(a) of the Order in Council.

          (2) The question of freedom of worship did not arise in this case.

          (3) As regards freedom of conscience, religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. The Jewish religion does not compel polygamy, and accordingly no ground exists for the suggestion that there was any infringement of the right to freedom of conscience.

 

          Per Silberg J. Bigamy was never an institution rooted or permanent or favoured in the life of the Jewish people.

 

Palestine cases referred to :

(1)   Cr. A. 85/38 - The Attorney-General v. Ya'acov Ben Yehiel Melnik (Kimhi) : (1939) 6 P.L.R. 34.

(2)   C.A. 119/39 - Pessia Nuchim Leibovna Shwalboim v. Hirsh (Zvi) Shwalboim : (1940) 7 P.L.R. 20.

(3)   M.A. 18/28 - The Attorney-General v. Abraham Alt shuler: (1920-1933) 1 P.L.R. 283.

(4)   M.A. 9/36 - Sharif Esh-Shanti v. The Attorney-General: (1937) 1 S.C.J. 31.

(5)   H.C. 109/42 - Vaad Adat Ashkenazim, Beit Din Hassidim v. District Commissioner, Jerusalem and others : (1942) 9 P.L.R. 715.

 

Israel cases referred to :

(6)   H.C. 10/48 - Zvi Zeev v. Gubernik, the District Commissioner, Urban District of Tel Aviv and others : (1948) 1 P.D. 85.

(7)   C.A. 376/46 - Aharon Rosenbaum v. Sheine Miriam Rosenbaum : (1949) 2 P.D. 235.

(8)   H.C. 8/48 - Shlomo Gliksberg v. Chief Execution Officer, Tel Aviv and others : (1949) 2 P.D. 168.

 

American cases referred to:

(9)        Quaker City Cab Co. v. Commonwealth of Pennsylvania : 48 S.C.R. 553.

(10)      Lindsley v. National Carbonic Gas Co. : (1911) 31 S.C.R. 338.

 

Wiener for the petitioner.

E. Shimron, State Attorney and E. Hadaya, District Attorney of Jerusalem, for the respondent.

 

            LANDAU J.  The appellant, Gad Ben-Izhak Yosifof, was convicted by the District Court of Jerusalem (Halevy P.) of the felony of bigamy, in contravention of section 181 of the Criminal Code Ordinance, 1936, as amended in 1947, and was sentenced to imprisonment for one year. His appeal in directed both against the conviction and the sentence. Upon the suggestion of Dr. Wiener, counsel for the appellant, and with the consent of the State Attorney, we decided to hear the appeal in two stages - the first stage relating to the conviction, and the second stage (should we reject submission of counsel in regard to the conviction), relating to the sentence.

           

2. The facts are set out in detail and with great clarity in the judgment of the learned President of the District Court, and since they are almost undisputed, there in no need for me to repeat them at any length. The appellant, an Israel Jew belonging to the Caucasian community, married ~ woman in the year 1936, and she has born him five children. His marriage with her in still subsisting. In the year 1950 the appellant married a second wife by religious rites with the consent of the office of the Rabbinate in Jerusalem. He obtained this consent by a false declaration which was supported by two witnesses, in which he concealed the fact of his existing marriage.

 

3. Dr. Wiener's submissions in regard to the conviction were directed solely to the legal basis of the judgment of the District Court. Dr. Wiener in fact denies the validity of section 181 of tile Criminal Code Ordinance, as amended. His arguments are these : that in enacting the section referred to the legislature in the days of the Mandate exceeded the powers conferred upon it by Article 17(1)(a) of the Palestine Order in Council, 1922, as amended in 1923, in that :

 

        (a)    Section 181 of the Criminal Code Ordinance discriminates           between the inhabitants of Palestine;

 

            (b)        the section restricts freedom of conscience and         worship.

           

4. In order to understand these submissions it in necessary for me to deal shortly with the history of these sections. Section 181 of the Criminal Code, in its original form, provides :

 

            "Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment for five years. Such felony is termed bigamy;"

 

            The section then proceeds to provide for three situations which, if established by the accused, will afford him a good defence. These are:

           

"(a) that the former marriage has been declared void by a court of competent jurisdiction or by a competent ecclesiastical authority; or

 

(b) the continuous absence of the former husband or wife, as the case may be, at the time of the subsequent marriage, for the space of seven years then last passed without knowledge or information that such former husband or wife was alive within that period; or

 

(c) that the law governing the personal status of the husband both at the date of the first and at the date of the subsequent marriage allowed him to have more than one wife."

 

            Special attention should be directed to the opening words of the section which require as one of the elements of the offence that the new marriage shall be void by reason of its having taken place during the lifetime of the husband or the wife of the previous marriage. This is an exceptional requirement, the basis of which was the desire of the legislature to adapt this provision of the Criminal Law to the conceptions of the Moslem religion which permits more than one wife. The second marriage of a Moslem is not void, and the prohibition imposed by section 181, therefore, does not affect him. It was also the purpose of the third defence mentioned in the section referred to, to protect a person whose personal law permits him to have more than one wife.

           

5. The Jewish law of marriage, however, was overlooked by the mandatory legislature from the outset, and the language of the section was not made appropriate for the special position created in Jewish law when a man marries two wives. According to that law, as is well-known, the second marriage remains valid throughout, and may be terminated only by divorce. It follows that the language of the section in its original form imposed no obstacle to polygamy among Jews, as appears from the judgment of the Supreme Court in Attorney-General v. Melnik (1), in which a Jew was acquitted of the offence of bigamy because of the defective drafting of the law.

 

6. Some years passed until the publication in 1947 of the amended section 181, which was drafted with the intention of bringing the provisions of the criminal law in regard to bigamy into conformity with Jewish law. And this is the solution which the legislature found to this problem:

 

(1)       The requirement at the beginning of the section that the new marriage should be void was deleted, and it was provided as to the future that the offence is committed whether the subsequent marriage is valid, or void or voidable. In this way the section was also made applicable to the second marriage of a Jew which is not void. It would appear that as far as Moslems are concerned, it was decided by the legislature that the original language employed at the beginning of the section was not necessary to exclude them from its operation, since they are in any case excluded by "the third defence" provided in the law governing personal status which permits polygamy.

 

(2)       The second and third defences provided for in the original section were restricted. Cases in which the law as to marriage applicable to the wife or husband at the date of the subsequent marriage was Jewish law, were excluded from the second defence, and cases in which the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law, were excluded from the third defence.

 

            In place of these defences which were excluded a new fourth defence was laid down for Jews, namely, the case in which "the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage, was Jewish law and that a final decree of a rabbinical court of the Jewish community ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage. ''

           

7. Dr. Wiener's whole argument, as 1 have said, was directed to the point that section 181 is inconsistent with Article 17(1)(a) of the Palestine Order in Council. The provisions of that Article, in so far as they affect the problem before us, are as follows : -

 

            "The High Commissioner shall have full power and authority..... to promulgate such Ordinances as may be necessary for the peace, order, and good government of Palestine, provided that no Ordinance shall be promulgated which shall restrict complete freedom of conscience and the free exercise of all forms of worship, save in so far as is required for the maintenance of public order and morals; or which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion, or language."

           

            Article 83 of the Order in Council again emphasises that "All persons in Palestine shall enjoy full liberty of worship subject only to the maintenance of public order and morals..." This section is in the general chapter of the Order in Council, and it adds nothing to the provisions of the amended Article 17(1) (a) which deals particularly with matters of legislation. The source of Article 17(1)(a) is Article 15 of the Mandate for Palestine from which it has been copied almost word for word. These conceptions, which were embodied in Article 15 of the Mandate, were not new, but had already found their place in the world of political thought in the French Declaration of the Rights of Man and the Citizen, of the year 1789, and in the days of the first ten amendments of the American Bill of Rights of the year 1791. The principle of non-discrimination reflects the aspiration of the equality of all citizens before the law. Freedom of conscience and worship is one of the liberties of the subject which is guaranteed to him under every enlightened democratic regime. In the declaration of the establishment of the State of Israel it is said:

           

            "The State of Israel... will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex. It will guarantee freedom of religion, conscience, language, education, and culture..."

           

            Dr. Wiener mentioned these words in His argument, but he drew no legal conclusions from them. In this he was correct, for the court has already held in Zeev v. Gubernik (6), that that declaration "contains no element of constitutional law which determines the validity of various ordinances and laws, or their repeal". Dr. Wiener agreed, therefore, that if the Knesset of the State of Israel were to enact a section such as section 181, he would not have been able to challenge its validity. His submission, therefore, is limited in scope and touches only upon the situation which existed during the time of the Mandate. I am in agreement with him and with the learned President of the District Court that if it should indeed emerge that there existed an inconsistency between section 181 of the Criminal Code Ordinance and Article 17(1)(a) of the Order in Council and that section 181 was void ab initio, then it was not a part of "the existing law" in accordance with section 11 of the Law and Administration Ordinance, 1948, and would therefore be invalid in the State of Israel as well.

 

8. The learned President of the District Court in his judgment rejected the general submission of Dr. Wiener both in regard to discrimination and also in regard to freedom of conscience and worship. He summarised his opinion in paragraphs 21-28 of his judgment, which read as follows :-

 

            "21. The institution of monogamous marriage is regarded among all peoples, in all faiths and in all communities in which it exists as one of the most valuable conceptions of human culture. The establishment of the family and the peace of the community depend upon it. The institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists. In Palestine, where it exists in proximity to the institution of polygamous marriage, it requires stringent protection."

 

            "22. It cannot be conceived for one moment that the Palestine Order in Council wished to prevent the Mandatory legislature from affording monogamous marriage in Palestine effective protection by means of the criminal law. All that was demanded by the Order in Council in this connection was that the law of bigamy should not prejudice that section of the population whose law of personal status recognised polygamy."

 

            "23. Section 181 was designed to protect the institution of monogamous marriage which existed in a certain section of the population of the country and in no sense prejudices the institution of polygamous marriage which exists among another section of the community. In other words, the object of section 181 is to protect those men and women (and their children) whose marriages, in accordance with their law of personal status, are monogamous marriages. Section 181 takes care not to prejudice the law of personal status (religious or national) of any inhabitant. It does not prejudice liberty of religion (which is included in the guarantee "of freedom of conscience and worship") but, on the contrary, it respects that liberty in all its provisions. Were it necessary for me to base my judgment upon this ground, I also would not hesitate to decide that the criminal law defending monogamous marriage is required "for the preservation of public order and morals". As far as discrimination in favour of the Moslems is concerned, it is not section 181 which created the distinction between the law of monogamous and polygamous marriage in Palestine; this distinction exists and is rooted in fact and confirmed by the Order in Council upon which counsel for the accused relies. It is for these reasons that I decide to reject the general submissions of counsel for the accused to the extent that they do not touch upon the special provisions of section 181 in regard to Jews."

 

            In so far as the special provisions of section 181 relating to Jews are concerned, it was held by the President - after a comprehensive survey of the development of Jewish law in this field - that "Jewish law does not permit a person to take a second wife in Palestine, unless he first obtains permission so to do according to law". In support of this opinion the President cited in his judgment a number of authorities on Jewish law which he culled from Rabbinical literary sources. He therefore rejected the idea that there exist in Palestine Jews of the Eastern communities who are permitted by Jewish law to take more than one wife without special permission so to do, and held that section 181 is in full conformity with Jewish law.

           

9. Dr. Wiener strongly attacked the general theories of the learned President. In his opinion there is no room for these propositions in the judgment of a judge whose duty it is to interpret the law and not express opinions on social problems such as the preference of monogamy over polygamy.

 

            I see no substance in these criticisms of Dr. Wiener. The learned President did not just express opinions. He refrained, for example, from expressing generally any preference for the system of monogamy over that of polygamy, but particularised and said (in paragraph 21 of his judgment) that "the institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists." We find nothing wrong in this expression of opinion. It is not the function of a judge simply to interpret the law mechanically. A judge is sometimes required to interpret abstract conceptions such as, in the case before us, "discrimination" and "freedom of conscience". It is of no avail in such circumstances to attempt to confine oneself within the four corners of legal theory. The judge must make a thorough investigation, must weigh the benefit of the community and that of the individual, the degree of justice and equity, and other considerations such as these in order to reach a correct assessment of the intention of the legislature.

 

10. Dr. Wiener argued his submissions in regard to the merits of the case under two headings - the one dealing with discrimination, and the other with freedom of religion and worship. I shall deal with the submissions in that order. Dr. Wiener confined his argument with regard to discrimination to the following points:

 

            (a) The idea that there exists a distinction in principle between monogamy and polygamy has no basis in the law of Palestine. According to the intention of the legislator who drafted the Order in Council marriage is an institution common to all communities, and the Mandatory legislature could not therefore lay down in subsequent legislation on marriage different principles for different communities. The criminal law relating to bigamy falls within this rule.

           

            (b) An argument that the legislature adjusted the section in question to the religious needs of the different communities cannot be justified, since section 181 is not so drafted, and in any event there was no necessity for a High Commissioner to set himself up as a "policeman" for the religious communities.

 

            (c) The test of discrimination is an objective test and we must not, therefore, enquire into the intentions of the legislator. The prohibition against discriminatory laws is absolute without its being reserved to matters of the maintenance of public order and morals, for these are only mentioned in connection with freedom of conscience and worship.

 

11. Mr. Shimron, the State Attorney, argued against this submission upon the question of discrimination. In his submission the prohibition against discrimination does not mean that the legislature must introduce a mathematical equality between all citizens. Discrimination must not be confused with distinction. The prohibition extends only to discrimination to the disadvantage of a particular group of people. The Palestine legislature, however, did not discriminate in favour of one community or against another community. It found itself faced with a varied social and legal state of affairs in the different communities, with each community having its own way of life. It therefore tried to find a legislative solution which would be in conformity - as far as possible - with this existing situation. The solution which it found is a reasonable and not a capricious one. Mr. Shimron, in his submissions, relied upon judgments of the Supreme Court of the United States which, in interpreting the Fourteenth Amendment of the Constitution of the United States in connection with the equal protection of the laws, decided that this amendment does not prevent classification of different groups within the community by the legislature.

 

12. It must be pointed out at the outset that Article 17(1)(a) of the Order in Council does not provide in general terms that all discrimination is forbidden. The article lays down, however, in a consolidated form, three aspects according to which discrimination between inhabitants of the country is forbidden, and these are on the grounds of race, religion, and language. Does section 181 mention religion as a reason for differentiating between the communities? Counsel for the parties did not deal specifically with this question. It seems to me that the matter is open to doubt. In the time of the Mandate the court recognised Jewish law as "the national law" of the Jews of Palestine (see Shwalboim v. Shwalboim (2)). I do not think that, in speaking in section 181 of the person whose law relating to marriage is Jewish law, the mandatory legislature intended to restrict this conception to Jews who were members of the Jewish community as a religious community. It designedly created a special class of people who are distinguished by their law of personal status. This has little effect, however, as far as Article 17(1)(a) of the Order in Council is concerned, for if the dividing line under section 181 is not religion we shall be compelled against our will to reach the conclusion that the differentiation is based on race, or on a conception of religion and race combined.

 

13. It seems to me that the articles of the Order in Council itself destroy the contentions of Dr. Wiener that marriage under the Mandatory law was considered the same institution for all the communities. The legislature allocated jurisdiction in matters of marriage between the different religious communities, and in so doing it was undoubtedly aware of the wide distinction between the various laws of marriage of the main communities in the country. See in this regard the judgment of this court in Rosenbaum v. Rosenbaum (7). It was only in 1989 that the first step was taken to introduce a unified law of marriage for persons who were not members of the recognised religious communities (see Article 65A of the Order in Council). This provision, however, merely provided the additional legislative framework, but this frame was never filled with content. It is clear to me that the law of marriage which existed in the time of the Mandate and which exists in this country today is not a single one, but is varied according to the different systems of personal law.

 

14. What is the correct meaning of the expression "discrimination", which appears in Article 17(1)(a)?  It is true that according to its etymological source this English word means no more than "distinction" and not necessarily a distinction for good or bad. In the social sciences, however, the word has acquired a more restricted connotation.

 

            I quote from the Encyclopaedia of the Social Sciences, New York, 1948, vol. 14 at p. 131 where it is said: -

           

"The term social discrimination may be tentatively defined as unequal treatment of equals, either by the bestowal of favors or the imposition of burdens."

 

and further on the same page :-

 

"Discrimination should not be identified or confused with differentiation or distinction."

 

and on page 182 :-

"Discrimination carries with it the idea of unfairness."

 

            I have already explained that the expressions which I am considering here are not merely legal terms. They are the common heritage of people with a democratic tradition and we do not hesitate therefore to seek assistance from American non-legal sources. The distinguishing feature implicit in the expression "discrimination" is an attitude which is unequal and unfair - for different classes of people. This is also the opinion of the English judges in the time of the Mandate. In the well-known case of Attorney-General v. Altshuler (3), for example, the court asked in its judgment at p. 286 :

           

"Can it be said because the bye-law in question makes a distinction in favour of the minority ...that there is, therefore, not a discrimination against the majority."

 

and it replies :

 

''.. .it is just as much discrimination when the majority suffers as it is when a minority is discriminated against.''

 

            I quote these passages only for the sake of the linguistic interest which they possess, without expressing any opinion as to the correctness of the view of the majority of the judges on the merits. The same expression, as used in the book of Exodus, (8, 18; 11, 7) 1) is used to connote a distinction for good or for evil.

           

15. I have considered the American judgments cited to me by Mr. Shimron, and particularly the judgment of Mr. Justice Brandeis in Quaker City Cab Co. v. Pennsylvania (9), which interprets the "Equal Defence Clause" in the American Constitution (the Fourteenth Amendment). However I cannot derive any assistance from this judgment for the problem before us, for the amendment referred to does not mention the expression "discrimination" and the American court, in interpreting the amendment, proceeded on the assumption that discrimination (that is to say, actual discrimination either in favour or against a particular class of persons) is permitted subject to the condition that it expresses itself in the form of classification on a reasonable basis (ibid., p. 556), while in our case discrimination is forbidden in all circumstances and is not limited by considerations of public order, and other considerations of a like nature.

 

16. Nevertheless, I am of the opinion that in substance Mr. Shimron's submission is correct. I have said that discrimination means a distinction for good or for bad. Article 17(1)(a) does not forbid a different legislative arrangement in respect of different classes of persons, provided that the arrangement involves no discrimination for good or bad. For example, the Language of Courts Rules provide in rule 4 that every summons, every official copy of a judgment and every official document shall be issued in the language of the person to whom it is addressed. This provision involved a distinction between different classes of people by reason of language. Would it ever occur to us to say that this is discrimination because from an objective point of view one law has not been laid down for all? On the contrary, it would appear that here we have a desire to confer equal status upon all the official languages. And so it is in the case of marriage. The Mandatory legislator decided that the time had come to prohibit bigamy by a prohibition in the Criminal Code. Two roads were open to it. It could have imposed a general prohibition upon the members of all communities or find a compromise between the desire to prohibit bigamy, and the social realities of the country. Dr. Wiener admits that a general prohibition would not have been beyond the competence of the Mandatory legislator, but he denies its power to lay down different laws for different communities. I cannot accept this opinion. A legislature does not operate in a vacuum, but is faced with an actually existing social state of affairs with its various manifestations, and must formulate legal forms to meet that situation, and also direct its development in the future. As far as the institution of marriage is concerned, the legislator found himself confronted, as raw material, with a reality consisting of varied outlooks which were fundamentally different. It found that the population of the country was not homogeneous, but that it consisted of different peoples and communities, each with its own laws and customs. Can we say that the Mandatory legislature committed a breach of the principle of non-discrimination because it did not impose its will on the existing situation but to some extent yielded to reality? There is an even more important factor. I am not dealing here only with a difference between actually existing situations, but a difference which was already established in the written law which applied before the Mandatory legislator began to act. Legislatory recognition of the differences between the outlooks of the peoples and communities in the country was already introduced into the Order in Council itself, which did not introduce one law for all people in the country but in matters of personal status handed over such matters - at least in part " to the jurisdiction of the courts of the communities. The draftsman of the Order in Council also added little that was new, and only recognized a legal situation which already existed previously in the time of the Turks. The Mandatory legislature, therefore, was consistent, and in drafting section 181 not in a single form but in a varied form, continued to build upon legal foundations which had already been laid down for some time.

 

            Counsel for the appellant is correct, however, in submitting that in the ultimate result the test must remain objective. It is possible that the intention of the legislature was desirable, but that it failed in its efforts, and that its solution in fact prejudices a particular class of persons, and discriminates against them in favour of others. We are not, therefore, relieved from the task of examining the details of the legislative arrangement which was made in the matter before us. I shall not be influenced by the dotting of i's and the crossing of t's, and should it appear that in essentials no discrimination has been introduced by the legislature, the court will ratify its actions and not invalidate them.

           

17. The object of respecting the provisions of the law of personal status of each person in Palestine is abundantly clear from section 181. We know from the explanatory notes to the proposed amendment that it was drafted after consultation with the Chief Rabbinate and was intended to satisfy its requirements. Rabbi Ya'acov Baruch, the Principal Secretary of the Office of the Rabbinate in Jerusalem, who gave evidence in this case, also confirmed that the Chief Rabbinate had approved this amendment (see also the article of P. Dikstein, "Ha-Praklit" January, 1946, p. 18). There is therefore no doubt as to the good intentions of the legislature towards the Jews. From an objective point of view as well, however, although there is here a difference in the legislative arrangement, there is no discrimination against anyone. Wherein lies the discrimination upon grounds of race or religion in handing the final decision in regard to permission to marry more than one wife - and thereby the exclusion of a person from the general provisions of section 181 - to the competent Rabbis of the Jewish community? I shall deal later with the question to what extent the contents of this section are consistent which Jewish law and I shall assume for the moment that there is no absolute consistency between them - but that does not mean that the provisions of the section are ultra vires, for in my opinion the legislature was entitled to introduce an innovation in the secular law (and a prohibition of bigamy is a matter belonging to the secular law) by transferring an additional duty to the religious courts of the Jewish community whose power to issue binding decisions is itself derived from the secular law. In so doing the Mandatory legislature did not constitute itself as a "policeman" in matters of religion. It remained within the ambit of its powers, and merely used the existing machinery of the religious courts in order to achieve its purpose after giving full consideration to the feelings of the Jewish community.

 

18. And that is not all. Without expressing an opinion as to the social and moral values of monogamy and polygamy it may in any event be laid down with certainty that that outlook which sees an advantage in a number of wives is basically a "masculine" outlook, for a prohibition against a number of wives restricts, as it were, the liberty of the male. The prohibition of bigamy, however, has the important social purpose of protecting the first wife. To release the man from the prohibition against bigamy contained in the criminal law would be to lower the status of the wife. It is for us to decide whether there exists here discrimination against the members of a particular race or religion, and we may not take a one-sided view of the problem. We must ask ourselves whether the men and women of the same community regarded as one unit are discriminated against. The answer to this question cannot be otherwise than in the negative.

 

19. For these reasons I reject these submissions of Dr. Wiener, and in my view section 181 of the Criminal Code Ordinance, 1936, is not repugnant to the provision against discrimination in Article 17(1)(a) of the Order in Council.

 

20.  I shall now pass to consider the second submission relating to freedom of conscience and worship. In my opinion the question of freedom of worship does not arise here at all. The intention of the legislature was directed to forms of worship among the different religions - in regard to matters between man and his God, and not in regard to matters between man and man.

 

            I shall therefore confine the enquiry to freedom of conscience. This is an ethical conception dealing with knowledge of good and evil. A man may derive his opinions on good and evil from a source which is not religious. A religious man, however, is guided in matters of conscience by the commandments of his religion, and we therefore accept the assumption that the complete application of the principle of freedom of conscience also demands freedom of religion.

 

            Dr. Wiener's main submission was that the Mandatory legislature, in laying down rules relating to marriage, trespassed upon the area of religion since, according to the Order in Council. marriage is a religious institution. Freedom of conscience means freedom to live according to the dictates of religion. Jewish law permits polygamy at least among those communities which have not accepted the Ban of Rabbenu Gershom.1) In certain cases polygamy is even almost a religious duty. The test is objective, and it makes no difference if the appellant belongs to one of those communities. And if section 181 is repugnant to the religious customs of any community, then it must be invalidated completely. The section is prejudicial in particular to those Jews who are not members of the Jewish community, for it compels them to approach the courts and the Chief Rabbis whose authority they do not recognise - in order to secure permission to marry. In explaining these submissions, Dr. Wiener readily conceded, as I have said, that had the legislature introduced the prohibition on bigamy generally by imposing a criminal prohibition, it would not thereby have exceeded its powers, for a prohibition such as this would evidence a desire to regulate the question of bigamy purely from the secular angle.

 

            Mr. Shimron's submission on this aspect of the matter was as follows. The question of marriage is secular and not religious, and legislation regulating this matter has no effect upon religious sentiment. Freedom of conscience and freedom of action are not the same thing, for freedom of conscience is confined to the realm of thought alone. Mr. Shimron supported the conclusions of the learned President in the court below that there is no inconsistency between section 181 and Jewish law, and submitted that the fact that a minority do not recognise the rabbinical courts can have no decisive effect on the matter.

           

2l.  I do not think that freedom of conscience is limited to freedom of thought alone. A man who enjoys freedom of conscience must not be deprived of the right to obey the dictates of his conscience by action. The proviso to Article 17(1)(a) in regard to public order and morals is sufficient to prevent harmful acts which some may seek to justify on the ground of freedom of conscience. Even Esh-Shanti v. Attorney-General (4), upon which Mr. Shimron relied, does not go so far as to hold that freedom of conscience is limited to matters in the realm of thought alone.

 

22.  I reject the remaining arguments of Dr. Wiener in regard to freedom of conscience. I think that Dr. Wiener destroyed his own argument by conceding that there may also be a secular approach to the subject of marriage. If, in principle, the secular law relating to marriage may be imposed upon all the inhabitants of the country, why should legislation which seeks to respect the demands of various religions, according to the grasp of the secular authorities after they have consulted the Jewish religious authorities before enacting the law, be forbidden? This is not trespassing upon the field of religion. On the contrary, as T have said, there was a clear desire to follow the golden mean between the religious sphere - as defined by the religious institutions themselves - and the secular sphere.

 

23. I would add here that it is by no means clear that according to Jewish law, the law of marriage belongs to the field of religion It is true that the Order in Council speaks of religious courts, and the draftsman undoubtedly assumed as a matter which was self-evident that religious courts deal with matters before them in accordance with laws of a religious character. But the draftsman had no power to change the essential nature of Jewish law. It is true that that law is based entirely upon a religious foundation since its source is the Law of Moses. There is, for example, no essential distinction between the law of persons and the law of property from the point of view that one is religious and the other secular, for they are all bound up together in one legal system. It would not be right, therefore, to attribute an essentially religious character just to the law of persons, thus distinguishing it from other branches of Jewish law. In other words, from the point of view of Jewish law (and it is with this law that we are dealing at present and not with the point of view of the secular legislature which drafted the Order in Council), the Law of Moses regulates all branches of civil and criminal law, and there is no difference between the intervention of the secular legislature in the field of the law of persons and its intervention in any other field of the law as a whole. No one will contend, for example, that in laying down the secular law of property the legislature was guilty of trespassing upon the field of religion, and the same applies to the intervention of the legislature in the law of marriage.

 

24. This is not all. Religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. There can be no question of such compulsion in regard to acts which religion merely permits, without any absolute imposition or prohibition. Dr. Wiener must show, therefore, that there exists an inconsistency between an order of the secular legislature and some absolute directive in Jewish law which compelled polygamy. Dr. Wiener did point, indeed, to a number of instances in which such an inconsistency, as it were, would exist were polygamy obligatory under Jewish law. The President of the District Court, however, has shown convincingly that the legislative regulation of marriage introduced by section 181 is in complete accord with the principles of Jewish law as they have developed throughout the ages, and that custom in Palestine, binding all the communities, generally forbids polygamy. A man is not permitted - and certainly is not obliged - to marry more than one wife, on the strength of his own decision alone. He is required for this purpose to procure a special permit which will only be issued on certain conditions now laid down, inter alia, in the Rules of Procedure of the Chief Rabbinate of Palestine of the year 1943. This ground in itself is sufficient to answer any argument about the infringement on the freedom of religion, though this does not diminish the force of the other considerations which we have already mentioned to contradict this argument.

 

25. In conclusion, the submission relating to that minority which did not recognise the Jewish community also cannot stand the test of analysis. Knesset Yisrael was regarded by the Mandatory authorities as the organisation of the Jewish community, and all efforts to secure legal recognition for other bodies failed (see for example the case of Vaad Adat Ashkenazitm v. District Commissioner (5)). The Mandatory legislature was consistent, therefore, in leaving the final decision relating to the issue of a permit in the hands of the Chief Rabbis of Knesset Israel. I have already rejected the submission relating to an infringement of liberty of conscience in its material aspect. Can the undisputed fact that it is necessary to approach the religious courts of Knesset Israel and the Chief Rabbis in order to secure the necessary permit be regarded as infringing freedom of religion?  This contention cannot be accepted any more than the argument of a person that he cannot recognise the authority of the courts of the State at all because of considerations of conscience. The provision relating to freedom of conscience is subject to the condition relating to the maintenance of public order which demands of every citizen that he accept the authority of the courts established by law. A Jew was not obliged to be a member of Knesset Israel, but it cannot be deduced from this that the legislature was unable to confer jurisdiction upon the courts of the Rabbinate over persons who were not members of Knesset Yisrael. Section 181(d) of the Criminal Code Ordinance, 1936, indicates the existence of such a jurisdiction, for this section gives official recognition to a permit of the rabbinical courts in respect of any person whose personal law is Jewish law, that is to say, also in respect of Palestinian Jews who are not members of Knesset Yisrael. It is difficult to see how the legislature could have provided otherwise since the recognition of the State was accorded only to these courts as the religious courts of the Jewish community.

 

26. For the reasons stated above I am of the opinion that the appeal against the conviction should be dismissed.

 

            SILBERG. J.  I am also of the opinion that the appeal should be dismissed.

           

2. In the submission of counsel for the appellant, section 181 of the Criminal Code Ordinance is invalid for two reasons :

 

            (a) It restricts freedom of conscience.

            (b) It discriminates between one person and another on grounds of religion.

           

            The remaining arguments and contentions of counsel for the appellant are merely branches of his two main submissions as set forth below.

           

3. As far as counsel's first submission is concerned, I should say at once that I entirely disagree with the opinion of the State Attorney that the guarantee of freedom of conscience extends only to the protection of freedom of thought. Thoughts are not punishable nor are they subject to other sanctions, and there is therefore no need to protect them. It follows that the freedom of conscience which enjoys the protection of the legislature must necessarily include a man's acts and deeds, the fruit of the exercise of his conscience, provided always that they do not exceed the bolunds of his purely personal affairs. When they do exceed these limits, they again become subject, like all other activity - to the surveillance of the law.

 

4. The question, therefore, is whether section 181 really restricts a person's freedom of conscience. I could, in fact, limit the question and define it in this way: whether the section referred to restricts the individual freedom of conscience of the appellant in this case, in the particular circumstances of this case. I do not wish, however, to divide the problem in this way, since I have in the result reached a negative conclusion in regard to this question even in its full connotation.

 

5. How is there likely to be a restriction on freedom of conscience in the circumstances of the present case?

 

            There is no doubt that freedom of conscience also includes freedom of religion. In order to show, however, that some prohibitory provision of the law restricts freedom of religion, it is not sufficient to establish that religion does not forbid the act in question. It is necessary to go further and prove that the doing of that act is demanded by religion - that religion commands and obliges the performance of that act. Not everything that is permitted by religion need necessarily be permitted by law. These two areas, therefore, are not identical. The one deals with matters between man and God, and matters between man and man, while the other also deals with matters between man and the State.

 

            In making these observations we need scarcely consider the validity in Palestine of the Ban of Rabbenu Gershom, and whether a Sephardi or Caucasian Jew here in Israel is permitted by law to marry more than one wife. Even if we assume - and I do not imagine that that is so - that the Ban of Rabbenu Gershom has no application to a Jew who comes here from tile regions of the Caucasus, the constitutional validity of section 151 will remain completely unaffected. It is not necessary, therefore, for me to enter into an examination of the interesting theoretical problems in which counsel for the appellant involved himself, namely, whether the Ban of Rabbenu Gershom (or its voluntary continuation after the year 5000 A.M.), is to be determined by the place in which a person is situated - in accordance with the opinion of some commentators - and whether it applies, therefore, to all the inhabitants of that place - even to new immigrants from countries in which the Ban is not acted upon, or whether it is only a personal obligation - in accordance with the opinion of other commentators - and has no application to a person who comes to a place where the Ban is accepted from a place where it is not accepted. (See Shulhan Aruh - Even Ha-ezer - I,9, and commentators ad loci Knesset Hagedola - Even Ha-ezer, Annotations Bet-Yosef, 1,22 (in the name of Rabbi Itzhak Hen); compare, however, Responsa of Nissim, 48; Kol Eliyahu, 2, Responsa on Even Ha-ezer, 12, and Knesset Hagedola, 20, q.v.)

 

6. The correct definition of the question, therefore, to put it shortly and yet accurately, is as follows : whether a man from Israel is obliged, by law, to take more than one wife or not. Counsel for the appellant advanced a novel submission in regard to this question, namely, that since the commandment to be fruitful and multiply is the first commandment in the Bible - first in order and in importance - any provision in the law which restricts the number of wives a man may marry is likely to lead to that commandment's being disobeyed. In support of his argument, counsel relied upon "She-elat Ya'avetz" of Rabbenu Ya'acov Gershom as being calculated to prevent a man fulfilling the commandment to be fruitful and multiply, and as preventing the increase of the seed of Israel. It is possible to go further in the spirit of counsel's submission, and to argue that the prohibition against bigamy is also likely to prevent the fulfilment of the commandment requiring a man to marry the childless wife of his deceased brother - in so far as that commandment is still observed in this country. I mean to refer to those Eastern communities who follow the opinion of Rabbi Izhak Alfasi and Maimonides that it preferable for a man to marry his deceased brother's widow than to give her her release, as is done by the Ashkenazi community in accordance with the opinion of Rabbi Moshe Isserlis. (See the dispute between Abba Shaul and the Rabbis, Yevamoth, 39b; Bechoroth, 13a; Rabbi Itzhak Alfasi, Yevamoth, Chapter "Ha-Holets" (Chapter 4); Maimonides "Yibum Vehalitsa" - 1,2; Annotations Rabbi Moshe Iserlis, Shulhan Aruh, even Ha-ezer - 165,1). I refer to those who are of the opinion that the commandment referred to should be observed even by those who are already married (Pit'hei-Tshuva, Shulhan Aruh - even Ha-ezer, 165, subs. (c), which is opposed to the responsum of Rabbi Itzhak Bar-Sheshet, Title 302 quoted in Bet Yosef and in the interpretation Even Ha-ezer at the beginning of chapter 165).

 

            This submission, however, has no substance whatsoever. Without entering into the question of the meaning of Article 17 of the Order in Council - whether it prohibits legislation which is intended from the outset to prejudice the dictates of religion, or whether it also invalidates any law which is likely, in particular circumstances, to prevent the observance of one of the religious duties - without embarking at all upon an investigation of this problem, there is a very simple answer to the submission of counsel for the appellant in this case. That answer is that this section 181 has already concerned itself from the outset with preventing any possible conflict between the law and religion, and has provided a special method for the resolution of any conflict between them. I refer to the "permission" set out in subsection (d) of the section. It is provided in that sub-section that a person who has more than one wife will be free from guilt ("it is a good defence to a charge under this section") if he proves that the law as to his marriage (both his first and subsequent marriage) is Jewish law, and that "a final decree of o rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine, and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage". And since the rabbinical court and also the two Chief Rabbis will certainly, no less than any other person, give proper consideration to the observance of religious duties and, if it appears to them correct to do so both from the legal point of view and the facts of the case, will grant the permission requested, there is a sufficient guarantee of "freedom of religion". Where have we grounds for complaint against the Palestine legislature? Was the Mandatory legislature obliged to constitute itself the guardian of matters of religion, and to impose or permit the fulfilment of a commandment which even the religious court is not prepared to permit? I would be very surprised indeed if that were so!

           

7. But counsel for the appellant continued to urge that it was just this very subsection - subsection (d) of section 181 - which constitutes a serious inroad into the freedom of conscience and religion. He submitted that the jurisdiction of both "the rabbinical court of the Jewish community" (which is the court of "Knesset Yisrael"), and that of the two Chief Rabbis, extends to members of "Knesset Yisrael" alone1) (see Gliksberg v. Chief Execution Officer (8), and judgments there cited), and a man who is not a member of Knesset Yisrael can derive no benefit from a "permission to marry" given by a court such as this. It follows that a man who is about to take a second wife will be compelled, against his will, to join the Knesset Yisrael in order to secure the legal validity of the permission referred to. Can there be any greater religious compulsion than this?

 

            There are two replies to this submission which, in my opinion, is without substance.

 

(a) First, I have grave doubts whether the jurisdiction of the rabbinical court is limited here too, in regard to the defence provided for in section 181(d),to members of Knesset Yisrael only. Without expressing any final opinion I am inclined to think - as was said by the learned President of the District Court in paragraph 48 of his judgment - that by virtue of the provisions of rule 6(1) of the Jewish Community Rules, 2)read together with the provisions of Article 9(2) of the Palestine Order in Council (Amendment), 1939,3) section 181 confers a special jurisdiction upon the court of Knesset Yisrael and upon the Chief Rabbis to grant permission to marry also to a person who is not a member of Knesset Yisrael ;

           

b) Secondly, even if we assume that this is not so, and that a man who is very anxious to marry a second wife is compelled, whether he likes it or not, to become a member of Knesset Yisrael - is this something so very shocking? Is this to be treated as "interference with the freedom of religion"? Is the religion of a member of Knesset Yisrael any different from the religion of a person who is not a member of the Knesset ? Religious "compulsion" such as this  means nothing, and it is difficult to submit with any seriousness that the whole legal force of section 181 is to be destroyed because of this feature.

           

8. Before leaving this subject I wish to touch shortly upon another point which also provides a simple and complete solution, in quite another way, to the problem of the freedom of conscience and religion. It is well known that Article 17 of the Order in Council lays down one proviso in respect of the prohibition on the restriction of freedom of conscience, and that is in so far as is required "for the maintenance of public order and morals" (do not read: "and morals" but "or morals"). Dr. Wiener, for his part, has introduced a proviso to the proviso and contends that the word "public" in this context means the whole public and not only a part of the public. I do not know from where this doctrine is derived, nor whether there was any place for it in the conditions of life which prevailed in Mandatory Palestine. It seems to me that in a heterogeneous society, with its many variations and different cultural groups, we can very well imagine that a particular law was necessary for "the maintenance of order" in only one of the different sectors of the population of the country. It can hardly be imagined that the position was otherwise. And the word "order" does not mean only the prevention of disorder. It includes also the maintenance and regulation of particular forms of living and cultural values in which that particular section of the community is interested, and which it holds dear. And if this is so, the amendment to section 181 - which was introduced under pressure from the Jewish community as a whole - is absolutely valid and completely unexceptionable even if the fullest effect be given to the proviso in Article 17.

 

            It would in fact have been possible to solve the whole problem by the process of reasoning set forth above alone. Since in my opinion, however, there was no restriction whatsoever on the freedom of conscience and religion in the circumstances of this case I found it necessary in the preceding portions of my judgment to deal with other aspects of the problem.

 

9. 1 pass now to the second and more serious submission of counsel for the appellant, namely, that of discrimination. This is an argument of substance which demands careful consideration. The conception discussed in the preceding paragraph can in any event have no place in regard to this portion of the enquiry, for the provisions of Article 17 prohibit discrimination in all circumstances - even if it be necessary for the maintenance of public order, since the proviso has been omitted from the concluding portion of the Article.

 

            Article 17, as enacted in Article 3 of the Palestine (Amendment) Order in Council, 1923, provides as follows :

           

".....no Ordinance shall be promulgated.....which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion or language."

           

            It is Dr. Wiener's submission, stated shortly, that since, in terms of the real and practical application of section 181, bigamy - that is to say, having more than one wife - is permitted for Moslems, but is forbidden to Jews and Christians, the law discriminates between one man and another on grounds of religion.

           

            For the sake of accuracy it must be added that Dr. Wiener does not complain - nor can he complain - that bigamy is permitted for Moslems, and that, as it were, there is discrimination in their favour. It was not this legislative act which permitted them to indulge in bigamy, for they were permitted to take more than one wife before this Act was promulgated. His main argument is that section 181 prohibits bigamy for Jews to a greater extent than for members of any other community, for, differing in this respect from other communities, they are forbidden to contract bigamous marriages even where their religious law permits them to do so (see the language of subsection (c)). It follows that the law has discriminated here, and has discriminated against the members of the Jewish community.

           

10. It is still not clear whether counsel for the appellant complains of discrimination on the grounds of race or on the grounds of religion. It would appear, however, that Dr. Wiener complains of religious discrimination, for he has emphasised before us again and again that section 181 makes the discrimination dependent upon the nature of the law which applies to the marriage of the offender; whether that law is Jewish law, or "some law which is not Jewish law".

 

11. It seems to me that it is just there - in those words and in that definition - that the weakness in counsel's argument appears. The language of the section is as follows : -

 

". . . . . provided that it is a good defence to a charge under this section to prove : -

........................................................................

 

(c) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was a law other than Jewish law and allowed him to have more than one wife, or

 

(d) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law and that a final decree of a rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage.''

 

This language leads to two conclusions:

 

(a) That section 181 makes the conviction and sentence dependent - not on the racial or religious affiliation of the wrongdoer, but upon a third test which is different from both of these, namely, what is the law which is applicable to the marriage of the offender;

 

(b) that the whole difference between the two classes of cases expresses itself, as a matter of fact, in one point alone, and that is that while it is sufficient for a man whose law is not Jewish law to prove, even at the trial itself, that his personal law - that is to say, that law applicable to his marriage - permits him to marry more than one wife, a man who is subject to Jewish law is obliged to prove that before his second marriage was celebrated he had produced a certain certificate laying down that he was permitted, individually, to marry a second wife. In other words, in regard to a man such as this - who falls into the second class - a criminal court will not be satisfied with the evidence of an expert with an abstract legal opinion, but will demand the production of an actual personal certificate issued to him, before he is married to the second wife.

           

12. As I have already indicated, the submission of discrimination as advanced by counsel for the appellant is completely destroyed by these considerations. In order to explain the principle we must deal shortly with the question of the special legal situation of "matters of personal status" and the place which they occupy within the framework of the general civil law of the State.

 

13. As everyone knows, the Palestine legislature divested itself of the power to lay down its own new principles in matters of personal status, and for reasons which are understandable and well-known it generally transferred the regulation of such matters - both from the point of view of procedure and from the point of view of substantive law, to the different religious codes of the various communities. Matters affecting the marriage and divorce of a Palestine citizen, who is a member of one of the recognised communities, are dealt with, even in the civil courts (when the question, for example, arises before them incidentally) in accordance with the religious law of the community in question. That also applies in regard to the duty of maintenance by a Palestinian husband in a claim brought against him in a civil court, and also to other similar types of claim.

 

            The matters which I have so far mentioned are simple, plain and well-known, and there is no reason to discuss them at any length. There arises, however, an interesting question which is not so simple, and that is the explanation of the rule which I have stated. Did the Palestine legislature, from the legislative point of view, leave a vacuum, and in respect of these matters employ foreign legal norms which have no place in its own system of law? Or did the Palestine legislature take over these legal norms, and make them an integral part of its own general system of civil law? This question is not, as we shall see, a merely theoretical one.

           

14. Even if there could have been some hesitation on this question up to the year 1945, the problem was completely settled with the promulgation of the Interpretation Ordinance 1945, and the matter is no longer open to any doubt. Section 2 of that Ordinance provides distinctly that the expression "law" also includes "the religious law (both in writing and verbal). . . . . which is in force, or which will be in force in future in Palestine." These words are crystal clear, and any interpretation of them would he superfluous. The legislature has in this section expressed its opinion in unmistakable language that the religious law, to the extent that it is in force in Palestine, itself constitutes an integral part of the law of the State. That is to say, that if a district court deals, for example, with the obligation of a Jewish husband who is a citizen of Palestine to pay maintenance, and it applies - as it is obliged to do - Jewish law, that part of Jewish law which deals with the question is regarded as if it had been enacted as one of the laws of the State. This, moreover, is the only reasonable and the only possible approach to the matter. Religious law is not "a foreign branch" which is grafted onto the trunk of the tree from without, but, to the extent that it was recognised, is itself inextricably interwoven with the boughs of the tree and forms a portion of its boughs and its branches.

 

15. Let us return to our problem, and examine the influence of this approach on the question before us. The effect is patent and clear : the basic idea which lies at the foundation of section 181 - at the foundation of all the provisions of that section - is to prevent an intrinsic and unreasonable conflict between different portions of the law of the State. For since, in the field of the civil law, there is no single arrangement common to all of the laws of marriage and divorce for all the inhabitants of the country, each community having its own laws, and ifs own forms, so it would be inappropriate to lay down one equal law for all sections of the inhabitants in the field of criminal law. It would be insufferable if there were a contradiction between the civil "permission" to commit bigamy, and the criminal prohibition of bigamy, and if these two conceptions did not coincide. The legislature therefore laid down as a general rule that if the civil law - that is to say, the "religious law" in accordance with which civil questions relating to the marriage of the offender are to be determined - permit him to marry more than one wife, it - the legislature - does not wish to prohibit him from so doing from the point of view of the criminal law. Here, however, the legislature was confronted with a difficulty in respect of members of the Jewish community, or to use the language of the legislature, persons the law of marriage applicable to whom was Jewish law. The difficulty was that Jewish religious law in fact recognises the validity of bigamous marriages - that is to say, having more than one wife - but it does not "permit" such marriages in a general and absolutely unrestricted form. On the contrary its general attitude to them is negative, and it only permits them subject to many reservations and conditions. Hence the legislature found itself confronted with a very complicated situation - a situation complicated from the legal point of view. It could not understand the situation in question nor did it believe that it could itself solve the problem. Who would investigate and who would decide if the particular person who married more than one wife was in fact permitted by Jewish law to marry a second wife? Could such an important and complicated question be decided on the basis of experts who would be heard by the court after the event? What, therefore, did the legislature do? It established special machinery, namely, the rabbinical courts of the Jewish community, together with the two Chief Rabbis of Palestine, and it transferred to them - and to them alone - the power of deciding the question whether a second marriage on the part of the husband could be permitted - resulting naturally in his exemption from punishment - or not.

 

            In short, the legislature did not act here with discrimination and did not discriminate in any way on the basis of religion or race. Also in regard to Jews, the legislator did not depart from the basic principle that no distinction should be introduced between the civil and criminal aspects of bigamy, but it refrained from deciding itself upon the civil aspects of the matter - being mindful of its failure in 1988 - and it transferred the matter to more competent hands, namely, to the religious courts and the Chief Rabbis, who were to decide the matter before the commission of the act. This is not a case, therefore, of racial or religious discrimination, or of discrimination at all. It is a necessary consequence of the legal differences between those portions of the law by which the legislature regulated matters of personal status of the citizen. In the field of the civil law of personal status, however, the legislature was compelled to lay down different legal norms for each community by means of the religious laws. No one has ever questioned the correctness of this course. All that the legislature proceeded to do, in the field of criminal law, was to draw the practical and logical conclusions from this distinction in the civil law.

           

16. And now one word on tile question so ably dealt with by the State Attorney relying on judgments given by the American courts, and in particular on the theory expressed in one case, Lindsley v. National Carbonic Gas Co. (10), by Mr. Justice Deventer of the United States Supreme Court. Not all discrimination is discrimination in the full sense, for in some cases it is nothing more than drawing a distinction. Drawing a distinction in which way? - when there exists a real difference between the two persons between whom discrimination is alleged on any reasonable basis, and the discrimination is not capricious (see p. 340, column g, ibid.). The conception lying behind the prohibition against discrimination is that a man shall not be prejudiced only because of his belonging to a particular race or religion, and there is no discrimination when it is not only on the basis of race or religion that the distinction exists, and where there is no prejudice. The discrimination in section 181 is only in the nature of a distinction. A Jew is not punished for polygamy because he is a Jew; but he is restrained by the threat of punishment from taking more than one wife seeing that the society to which he belongs - the Jewish community - has itself laid down that taking more than one wife is inconsistent with its moral and cultural conceptions - that it can no longer permit that practice. It therefore requested the legislature to prohibit the taking of more than one wife in its own interest, and the legislature acceded to this request. What we have here, therefore, is not a discrimination which is prohibited, but a distinction which is permitted, in no way offending the provisions of Article 17. This conception is in fact similar to that expressed above in paragraphs 14 and 15, expressing indeed two sides of the same coin.

 

17. In conclusion I wish to point out that ~ unreservedly associate myself with the conclusions of the learned President of the District Court in regard to the validity of the Ban of Rabbenu Gershom and the extent of its application in this country. It is a widely-accepted principle that that Ban - or the custom which has remained after the year 5000 A.M. (see Responsa of Hatam Sefer - Even Ha-ezer - s. (d)) - is valid in Israel, and binds everyone who enters this country. The authorities for this proposition were cited fully in the judgment of the learned President. I only wish to add that already in tile period of the Amoraim - some 700 years and more before the Ban of Rabbenu Gershom - there expressed itself - here and there - an inclination against polygamy, from the spiritual point of view. If the Amora Rabbi Ami, who lived in the 4th Century, said, "that I say : everyone who marries a second wife shall divorce his first wife (if she so desires) and pay her the sum of her ketuba" (Yebamot, 65a). Pay particular attention to tile strong introduction "that I say !" - this shows there were even in that far off time, people who were in favour of this idea. And even Raba, who differed from the opinion of Rabbi Ami in connection with this principle, said "A man may marry more than one wife if he is able to support them", also expressed his opinion indirectly elsewhere, and took it for granted that it is in no sense a natural thing that a man should marry more than one wife, and that it is necessary - at least from the moral point of view - to procure the consent of the first wife to such an act (see the reply of Raba to Abayeh - Kiddushin - 7a : "So he said to her at the time of the marriage -  that if I wish to marry another woman, I shall do so"). Any one who knows how to read between the lines will find many such expressions of opinion widely spread throughout our ancient literature, but this is not the place to dwell upon this subject at any length.

 

            In short, bigamy was never an institution which was rooted, or permanent or favoured, in the life of the Jewish people. It was merely 'tolerated', if one may use this expression - and what was laid down by Rabbenu Gershom, the Light of the Exile, at the beginning of the 11th Century, was no more than to put the final touches upon a gradual and deep development throughout the generations.

            It is my opinion, therefore, that the appeal should be dismissed, and the conviction confirmed.

           

            SMOIRA J.  I have read the judgments of my colleagues Silberg J., and Landau J., and I have nothing to add. They have both reached the conclusion that the appeal should be dismissed, and I am in agreement with their opinion.

            We therefore dismiss the appeal against the conviction.

            After hearing counsel for the appellant, the appellant himself, and the District Attorney, we find no ground for imposing a lighter penalty. We also dismiss the appeal against the sentence. We confirm the judgment and sentence of the district court .

           

            The appellant will be imprisoned for a period of one year from today.

           

Appeal dismissed.

Judgment given on March 29, 1951.

 

 

 

 

            Justice E. Hayut

I agree.

 

Appeal allowed.

11 Adar 5764.

4 March 2004.

 

 

 

President D. Beinisch

The respondents in the appeal before us were acquitted in the judgment of the Jerusalem District Court (Judge Y. Adiel) of offences of making a restrictive arrangement under the Restrictive Trade Practices Law, 5748-1988 (hereafter: the Restrictive Trade Practices Law). The District Court held in its judgment that the respondents should be acquitted of the offences with which they were charged, even though it found that they had in fact committed these offences, because they had a defence of mistake of law, as set out in s. 34S of the Penal Law, 5737-1977 (hereafter: the Penal Law). This led to the appeal before us, in which the state argues that the aforesaid defence does not apply in the respondents’ case. The main question that we are required to decide in this case is whether, and in what circumstances, a person may rely on a legal opinion concerning the legality of a certain act in order to succeed in a defence of a mistake of law when he is indicted for committing the offence that is the subject of the opinion.

1.    The first respondent (hereafter: Tnuva) is one of the largest corporations in the Israeli economy and its business is the marketing of food products, including meat products. The second respondent (hereafter: Landsman) held office as the CEO of Tnuva at the times relevant to the indictment. The third respondent (hereafter: Meir Ezra Marketing Ltd) is a company that is also in the business of marketing food, including meat. The fourth respondent (hereafter: David Ezra) held office as the CEO of Meir Ezra Marketing Ltd at the times relevant to the indictment.

The sequence of events and the judgment of the District Court

2.    The following are details of the sequence of events in the case before us, as they are set out in the judgment of the District Court. In 1993 the government decided to ease restrictions on the import of frozen kosher meat into Israel, so that it could be carried out by private commercial enterprises and not by the Ministry of Industry and Trade, as had been the case until that time. The commercial import of kosher meat into Israel began in October 1993. Against the background of allowing private importers to import frozen kosher meat, Tnuva and Meir Ezra Marketing Ltd decided to collaborate and set up a joint venture that would handle the import and marketing of frozen meat into Israel. For this purpose, on 28 July 1993 Tnuva and Meir Ezra Marketing Ltd made a venture agreement to work together, in which they agreed to set up the company Tnuva – Meir Ezra Imports and Marketing Ltd (hereafter — TME). The venture agreement also provided that the issued and paid-up capital of TME would be owned by Tnuva and Meir Ezra Marketing Ltd in equal shares and that each of them would have a right to appoint half the directors in the company. On 26 July 1993 TME was indeed founded in accordance with the venture agreement. Landsman and David Ezra also held office, in addition to their other offices, as members of the small board of directors of TME, which was responsible for the day to day running of TME; Landsman held office as the chairman of the board of directors of TME and David Ezra held office until July 1994 as the CEO of TME. According to what was alleged in the indictment, TME was intended to serve as a means of implementing the joint decisions of Tnuva and Meir Ezra Marketing Ltd in the field of meat marketing. It was alleged that the two companies agreed to appoint themselves as the sole marketers of meat that would be imported through TME and that they would buy the frozen meat solely from TME on identical terms.

3.    On 25 November 1993 a meeting of the board of directors of TME was held. The minutes of that meeting set out various arrangements concerning TME’s marketing policy (hereafter: ‘the minutes’). There is no dispute that it was decided in those arrangements that Tnuva and Meir Ezra Marketing Ltd would be appointed the marketers of TME; they contained provisions with regard to the customers to whom the meat would be marketed by TME and by Tnuva and Meir Ezra Marketing Ltd; a division was made of meat marketing quotas between Tnuva and Meir Ezra Marketing Ltd; various provisions were made with regard to the prices of the meat that was being sold and price reductions. The arrangements in the minutes formed the basis for the indictment that was filed against the respondents, since according to the state these arrangements are an expression of agreements reached between Tnuva and Meir Ezra Marketing Ltd that constitute a prohibited restrictive arrangement under the Restrictive Trade Practices Law.

The agreements between Tnuva and Meir Ezra Marketing Ltd that the state claims should be regarded as restrictive agreements include the following: a division of the customer market so that Tnuva and Meir Ezra Marketing Ltd would not compete with one another or contact the customers that were identified as the customers of the other party; defining certain customers as ‘select customers’ who would be regarded as TME’s customers, who would not be approached by Tnuva or Meir Ezra Marketing Ltd; dividing the quantities of meat intended for marketing so that Tnuva would buy 80% of the quantity of meat intended for marketing, whereas Meir Ezra Marketing Ltd would buy 20%; fixing minimum prices for meat that would be marketed by the two companies, by determining that they would not sell the meat at a price lower than the minimum price, or at a reduction, without mutual consent; in this respect it was agreed that the minimum price would be determined from time to time within the context of TME; determining special sales and commercial terms for customers, such as credit terms. The state further claimed that these agreements were actually implemented by Tnuva and Meir Ezra Marketing Ltd, since from the month of October 1993 until October 1994 they fixed minimum prices through TME for various types of meat, and they fixed the commercial terms and prices at which meat would be sold to various parties.

4.    It can be seen from the judgment of the District Court that the defences presented by the respondents were not identical. Tnuva and Landsman admitted most of the state’s factual allegations with regard to the agreements between Tnuva and Meir Ezra Marketing Ltd, but they claimed that from a legal viewpoint they do not constitute prohibited restrictive arrangements under the Restrictive Trade Practices Law. Tnuva and Landsman also argued that they were entitled to a defence of mistake of law, because of legal advice on which they relied. Meir Ezra Marketing Ltd and David Ezra also raised legal arguments similar to those of Tnuva and Landsman; but they also denied the factual allegations in the indictment, claiming that the state misinterpreted the minutes and that the respondents did not reach any agreements with regard to dividing the market and fixing the prices of the marketed meat, as alleged by the state.

5.    In its judgment the District Court held, after it examined the text of the minutes and the testimonies of the various officers of Tnuva and Meir Ezra Marketing Ltd, that the recommended minimum prices to which the minutes refer are minimum prices that TME was supposed to set for its two marketers when they sold meat to their customers. In other words, it was agreed that the two marketers would not be entitled to sell meat to their customers at prices lower than the minimum prices or to give price reductions that would lead to the sale of the meat at prices lower than the minimum prices without special approval from TME. In this context the District Court rejected the version of events presented by David Ezra with regard to the meaning of the minutes, according to which the recommended minimum prices are the prices at which TME itself would sell the meat to Tnuva and Meir Ezra Marketing Ltd, since TME had no interest in the price that the marketers charged their customers. The court reached this conclusion mainly from the language of the minutes. Thus, for example, para. A2 of the minutes states that: ‘The company (TME) shall determine, from time to time, a recommended minimum price for its products.’ The court accepted the state’s contention that if this refers to the price at which the meat was sold by TME to the marketers, the meaning of the word ‘recommended’ is unclear, since TME could not be expected to recommend to itself the price at which it would sell the meat, and it is also unclear why it was necessary to define this price as a minimum price. Additional provisions in the minutes also supported the conclusions of the trial court that the minutes should be interpreted as referring to various restrictions relating to the prices of meat that Tnuva and Meir Ezra Marketing Ltd would charge their customers. The District Court also pointed out that special weight should be attached to the testimony of Landsman, who supported the state’s factual contentions with regard to the price-fixing, even though this was clearly contrary to his own interest.

The court also added that the fact that the price-fixing that was agreed was never (or almost never) put into practice and the fact that Tnuva and Meir Ezra Marketing Ltd each determined its own price for selling the meat to its customers and the reductions that it would give them cannot shed any light on the interpretation of the provisions of the minutes, in view of the various reasons given to the court as to why the agreements were not implemented, including the fact that neither of the parties was interested in implementing the arrangement, the fact that the arrangement was determined on the basis of an expectation that there would be a shortage of meat, which did not in fact happen, and the difficulty inherent in implementing the provisions of any monopolistic arrangement.

Eventually the court found that Tnuva and Meir Ezra Marketing Ltd had indeed agreed to fix prices and price-reductions for the sale of the meat. This fixing related first and foremost to the sale of meat to the ‘select customers,’ but also to the sale of meat by Tnuva and Meir Ezra Marketing Ltd to their customers. As we have said, these agreements were not actually implemented. But the court held that this does not alter the fact that these agreements were restrictive arrangements, since according to the case law of this Court the actual implementation of an arrangement is not required for that arrangement to be deemed a restrictive arrangement that is prohibited under the Restrictive Trade Practices Law.

6.    An additional agreement between Tnuva and Meir Ezra Marketing Ltd, which the state claimed amounted to a prohibited restriction, was that the two marketers should only buy meat from TME, and that TME should give both of them the same commercial terms for the purchase of the meat. The District Court held that in view of the wording of the indictment, the state’s claims on the aforesaid matters went beyond the indictment, and it found that these charges could not be brought against the respondents.

7.    Another accusation that was made against the respondents was the division of customers between Tnuva and Meir Ezra Marketing Ltd. The state admittedly withdrew the charge concerning the agreement between Tnuva and Meir Ezra Marketing Ltd not to compete with one another, but it claimed that they reached an agreement, which should be regarded as a restrictive arrangement, according to which only TME would market meat to customers who would be defined as ‘select customers,’ whereas Tnuva and Meir Ezra Marketing Ltd would refrain from marketing meat to these customers. The minutes also constituted the main evidence of this agreement, since they expressly state that TME would market meat to the customers set out in appendix A of the minutes, who would be called ‘select customers,’ whereas Tnuva and Meir Ezra Marketing Ltd would market the meat that they would buy from TME to customers who were not ‘select customers.’ In addition to what was stated in the minutes, the accusation concerning the division of customers was supported by the testimonies of Landsman and additional witnesses. The District Court found that the provisions of the minutes do indeed reflect an agreement that the sale of the meat to the select customers would be carried out by TME, rather than by Tnuva and Meir Ezra Marketing Ltd, and it added that this was sufficient to constitute a restrictive arrangement under the Restrictive Trade Practices Law. In this respect, the District Court rejected the factual claim raised by David Ezra in his testimony that the provisions of the minutes should not be understood as a prohibition to sell meat to the select customers, which was imposed on Tnuva and Meir Ezra Marketing Ltd, but as a reflection of the situation that de facto existed at that time, since the list of select customers reflected those customers who had bought meat in the past directly from the government, for which reason David Ezra claimed that they would have to be given a reduction by TME.

8.    In addition to the division of customers, the respondents were also charged with dividing the meat market according to the quantity of products. This accusation was based on a provision in the minutes which stated that approximately 80% of the amount of meat that was not marketed to the select customers would be sold to and marketed by Tnuva, whereas approximately 20% of the amount of meat that was not marketed to the select customers would be sold to and marketed by Meir Ezra Marketing Ltd. The District Court accepted the respondents’ claim that they did not really regard this provision as a legally-binding undertaking, but it held that the provision contained a declaration of intent by the parties with regard to the manner in which they intended to divide the quantities of meat that they would market between them. In view of the broad definition of the term ‘arrangement’ in the Restrictive Trade Practices Law, which is not limited solely to a legally-binding arrangement, the trial court held that even though the aforementioned provision in the minutes was merely a declaration of intent and did not legally bind the parties, it could be regarded as an ‘arrangement’ within the meaning of this term in the Restrictive Trade Practices Law.

9.    The District Court therefore found that subject to the respondents’ defence claims, the minutes contained provisions that constituted prohibited restrictions under the Restrictive Trade Practices Law with regard to price and reduction fixing, a division of customers and a division of market shares between Tnuva and Meir Ezra Marketing Ltd. The District Court therefore went on to examine the claims raised by the respondents in their defence.

10. The respondents claimed in the District Court that it should acquit them on the basis of the defence of justification, since both the Ministry of Industry and Trade and the director-general of the Antitrust Authority (hereafter: the director-general) knew of the founding of TME and of the respondents’ activity, and the Ministry of Industry and Trade even cooperated with TME, which imported meat for it from South America. According to the respondents, the director-general did not inform them of the possibility that their activity, of which he was aware, was contrary to the law, and he even gave them the impression that there was nothing improper in TME’s activity. The District Court held that the authorities were admittedly aware that TME had been founded, but it was not claimed that they were also aware of the specific restrictive arrangements that were the subject of the indictment. The District Court also said that in two of the director-general’s decisions that were given in February and July 1994, he expressed his opinion that the TME venture might be problematic from the viewpoint of restrictive trade practices law, and consequently there was no basis for the claim that the director-general was silent or encouraged the respondents to commit the offences attributed to them. Therefore the District Court held that the conduct of the authorities towards the respondents did not satisfy the conditions that have been laid down in the case law of this Court for succeeding in a defence of justification.

11. Additional defence arguments that were raised by the respondents concerned the question of the definition of the restrictive arrangement that is prohibited under ss. 2(a) and 2(b) of the Restrictive Trade Practices Law. The respondents argued that in order to convict someone of an offence of a restrictive arrangement under s. 2(a) of the Restrictive Trade Practices Law, the state needs to prove that there is a real likelihood that competition will be significantly harmed. This argument was rejected by the trial court in view of the language of s. 2(a) of the Restrictive Trade Practices Law, which speaks of a concern of ‘harm’ to competition, and not ‘significant harm,’ and also in view of the language of ss. 15 and 15A of the Restrictive Trade Practices Law, from which it can be seen that even an arrangement that harms competition to a small extent is generally considered a restrictive arrangement under s. 2 of the Restrictive Trade Practices Law. With regard to the provisions of s. 2(b) of the Restrictive Trade Practices Law, which define restrictions with regard to certain matters as a restrictive arrangement, the District Court rejected the contention that the state was required to prove harm to competition, or a mens rea to harm competition, as a condition for a conviction on the basis of the absolute presumptions provided in the aforementioned section. The trial court added in this respect that harm to competition was not one of the elements of the offence of a restrictive arrangement under s. 2(b) of the law.

12. Another issue that was considered extensively in the judgment of the District Court was the respondents’ claim that in view of the relationship between TME, Tnuva and Meir Ezra Marketing Ltd, the resolutions in the minutes concerning TME’s marketing policy should not be regarded as ‘an arrangement between persons running businesses’ as required by s. 2 of the Restrictive Trade Practices Law. In considering this issue, the trial court left undecided the question whether the mere founding of a joint venture, even without the venture agreement containing an express restriction, constitutes a restrictive arrangement, since in the indictment the respondents were not charged with an offence concerning the actual founding of TME. On the other hand, the District Court held that even if there was a genuine economic justification for founding TME and even though it was not proved that the founding of TME was intended to mask the cooperation between Tnuva and Meir Ezra Marketing Ltd, this was not sufficient to legitimize this joint venture and to negate the illegality that tainted it as a result of the prohibited restrictions that were determined in connection therewith. In this respect the District Court said that the economic advantages that justify the founding of a joint venture may be included among the criteria that the Antitrust Tribunal or the director-general of the Antitrust Authority may take into account when they consider whether to approve a restrictive arrangement or when granting an exemption from approval, but they cannot legitimize the making of the arrangement without obtaining an approval or exemption as required by the law.

The court also rejected the claim that because TME has an independent legal personality, which is separate from Tnuva and Meir Ezra Marketing Ltd both from a formal legal viewpoint and from a substantive economic viewpoint, its resolutions cannot constitute a restrictive arrangement between its shareholders. The trial court said in this regard that TME’s marketing policy, as determined in the minutes, is a result of the independent wishes of Tnuva and Meir Ezra Marketing Ltd and it was formulated within the framework of the agreements that were made between the two before TME was founded, and therefore those agreements should not regarded as a product of TME’s internal activity, even if it ratified them after it was founded. Moreover, the District Court rejected the claim that since Tnuva and Meir Ezra Marketing Ltd acted as marketers or agents for TME, they should be regarded as one economic entity and the resolutions that were adopted by TME should not be regarded as ‘an arrangement between persons running businesses.’ The court based its conclusion in this regard both on the judgment in CFH 4465/98 Tivall (1993) Ltd v. Sea Chef (1994) Ltd [1], and also on the independent status of Tnuva and Meir Ezra Marketing Ltd as the founders of the joint venture, who initiated its formation at a time when they were active competitors in the meat marketing business and who, in the course of forming TME, arrived at arrangements on the subject of marketing policy that necessarily reduced the competition between them. The trial court further added that Tnuva and Meir Ezra Marketing Ltd continued to compete with one another in meat marketing even after TME was founded, and for this reason too they cannot be regarded merely as the shareholders of TME, rather than as independent.

13. The last defence argument of the respondents, which was accepted by the court and brought about their acquittal, was a claim of mistake of law in reliance upon legal advice. The respondents claimed in this regard that they should be held to have no criminal liability because they made the arrangements that are the subject of the indictment as a result of legal advice that they received, according to which these arrangements are not problematic from the viewpoint of restrictive trade practices law. The respondents therefore claimed that they had a defence under sections 34R and 34S of the Penal Law. There was no dispute before the District Court that the respondents did indeed receive legal advice from their lawyers, according to which there was no impediment to making the transaction that is the subject of the indictment.

The legal advice concerning the case before us was given to Tnuva and Landsman by Advocate Yanovsky, who testified in the trial court and explained in his testimony that he advised Tnuva and Landsman that the joint venture did not present any problem from the viewpoint of restrictive trade practices law. It should be noted that Advocate Yanovsky did not merely examine the legality of the joint venture from the viewpoint of restrictive trade practices law but was involved in the legal handling of the whole transaction, including the drafting of TME’s venture agreement and the minutes. Meir Ezra Marketing Ltd and David Ezra were given legal advice on the transaction by Advocate Dror Brandwein, who testified in the trial court that he examined the legality of the transaction between Tnuva and Meir Ezra Marketing Ltd from the viewpoint of restrictive trade practices law and he reached an unequivocal conclusion that it did not constitute a restrictive trade practice.

After it examined the testimonies concerning the legal advice that the respondents received, the District Court reached the conclusion that the respondents based their actions in the TME transaction, including the marketing policy that they determined as can be seen in the minutes, on the advice of their lawyers. The court went on to say that it was persuaded that both the respondents and their lawyers acted in this regard in good faith and in a sincere belief that there was no impropriety in their actions from the viewpoint of restrictive trade practices law. Inter alia the District Court rejected in this regard the state’s claim that it was unreasonable for Tnuva and Landsman to rely on the legal advice that they were given. The state’s claim was based, inter alia, on a previous judgment that also related to a case where Tnuva and Landsman were charged with an offence of a restrictive arrangement, on that occasion in the context of a business partnership (CrimC (TA) 181/99 Tnuva Ltd v. State of Israel [14]). The state argued that in view of the judgment in Tnuva Ltd v. State of Israel [14], the reliance of Tnuva and Landsman on the legal advice that was given to them was unreasonable, since this advice was based on an identical defence claim to the one that was rejected in that judgment. But the District Court held in the judgment that is the subject of the appeal before us that the judgment in Tnuva Ltd v. State of Israel [14] addressed different issues from the ones that arose in the case before us, and that since the state did not attribute bad faith to Advocate Yanovsky with regard to the relevance of the judgment in Tnuva Ltd v. State of Israel [14], there was no basis for attributing bad faith in this regard exclusively to Landsman.

14. After the District Court reached the conclusion that from a factual viewpoint the respondents relied in good faith on the legal advice that they were given with regard to the TME transaction, it examined whether this reliance was capable of providing them with a defence in criminal law to the offences with which they were charged. Following the opinion of Justice T. Or in CrimA 1182/99 Hurvitz v. State of Israel [2], the trial court held that a defendant could succeed in a defence of reliance on professional advice not only with regard to offences that require a special mens rea (such as the offence of intent to evade payment of tax under s. 220 of the Income Tax Ordinance [New Version], 5721-1961, which was considered in Hurvitz v. State of Israel [2]), but also with regard to offences that merely require a mens rea of awareness, such as the offence of a restrictive arrangement. Notwithstanding  the District Court accepted the state’s claim that the respondents’ mistake in the case before us was a mistake of law that should be examined within the context of s. 34S of the Penal Law and not a mistake of fact that should be examined within the context of s. 34R of the Penal Law. The District Court also held that the respondents’ mistake in the case before us, as distinct from the position in Hurvitz v. State of Israel [2], was a mistake of criminal law and not a mistake relating to some other field of law.

The trial court was therefore called upon to examine whether the respondents were entitled to the defence of a mistake of law that is provided in s. 34S of the Penal Law, which states the following:

‘Mistake of law

34S. In so far as criminal liability is concerned, it makes no difference that a person thought his act was not prohibited, as a result of a mistake with regard to the existence of a criminal prohibition or with regard to the meaning of the prohibition, unless the mistake was reasonably unavoidable.’

The state argued before the District Court that the defence that is provided in the aforesaid s. 34S applies only when there is an objective impediment to knowing the correct law, whereas it does not apply when the accused knows of the existence of the law but received mistaken professional advice with regard to its interpretation. The District Court rejected this argument of the state and held that the language of the law does not support the narrow interpretation proposed by the state and that the defence is based on the mistake being ‘reasonably unavoidable,’ irrespective of the source of the mistake or the reason for it. The court also went on to say that the purpose of the section is to prevent the conviction of an accused who is blameless and took all the reasonable steps available to him in order to ascertain the law, yet despite these efforts he was mistaken. In such circumstances, the trial court held that his mistake is a reasonably unavoidable mistake that is capable of exempting him from criminal liability.

15. In the specific circumstances of this case, the District Court found that the defence argument of a mistake of law that was raised by the respondents should be accepted. The court held that in view of the longstanding work relationship between the respondents and their lawyers and the fact that these lawyers handled the transaction itself and as a part of this they examined its propriety from the viewpoint of restrictive trade practices law, the absence of a written legal opinion does not diminish the weight or reasonableness of the opinion from the respondents’ perspective, nor does it give rise to a concern that it was an opinion that was intended to legitimize the transaction in bad faith. Moreover, the District Court rejected the claims raised by the state that the respondents’ lawyers did not have sufficient expertise in the field of restrictive trade practices law. An additional claim that was raised by the state and rejected by the District Court concerned the reasonableness of the legal advice given to the respondents. In this regard the District Court held that the reasonableness of the legal advice should be examined from the defendant’s perspective, since we are speaking of his defence and he is usually unable to assess by himself the reasonableness of the legal advice, unless the circumstances in which it was given should have raised doubts in his mind as to the professional validity of the legal advice. In our case the trial court held that it is difficult to see how the respondents could have examined the reasonableness of the legal advice that their lawyers gave them. The District Court also rejected the state’s claim concerning the reasonableness of the legal advice that was given to them on the merits. In this regard the court said that restrictive trade practices law was at that time at an early stage of development in Israel and that case law in this field was very limited. The court also added that the lawyers’ opinion was based on the same approach concerning the applicability of restrictive trade practices law to partners in a partnership that was later adopted by Justice Türkel (in a minority opinion) in CA 6222/97 Tivall (1993) Ltd v. Ministry of Defence [3], and in such circumstances it could not accept the claim that the opinion is so unreasonable that the respondents should be deprived of the defence of reliance. The District Court also rejected the state’s claim that the respondents’ lawyers were unaware of the restrictions in the restrictive arrangements or that the respondents had not fully informed them of these restrictions.

On the basis of the aforesaid, the District Court therefore reached the conclusion that the respondents acted with regard to the agreements and the arrangements that were attributed to them in the indictment in reliance on the legal advice that they received, according to which those agreements did not constitute an offence under the Restrictive Trade Practices Law. The court went on to hold that in the circumstances of the case the respondents’ mistake was unavoidable, and they therefore had a defence under s. 34S of the Penal Law. It consequently decided to acquit them.

The arguments of the parties

16. In its appeal before us, the state naturally does not challenge the determination of the District Court that the respondents made concluded a  restrictive arrangement between themselves in the field of meat marketing. It attacks the finding of the trial court that in the circumstances of the case before us the respondents have a defence of a mistake of law, as determined in s. 34S of the Penal Law. According to the state, the defence of a mistake of law under section 34S should be interpreted as comprising two elements: one element is a subjective one, according to which the defendant’s mistake should be examined to see if it really was a ‘mistake,’ and whether it was a sincere mistake made in good faith; the other element is an objective one, according to which the mistake should be examined to see whether it was ‘reasonably unavoidable.’ In this respect the state claims that a distinction should be made between a reasonable mistake and a reasonably unavoidable mistake; only the latter constitutes a defence against criminal liability. The state goes on to say that the defence provided in s. 34S creates an exception to the rule that ‘ignorance of the law is no defence,’ and it argues that this exception should be interpreted narrowly, so that it will apply only in a complex set of circumstances in which the citizen could not have conceived, even after taking reasonable steps, that he was committing a criminal offence. The state therefore claims that the defence provided in s. 34S was intended to apply in a situation where the defendant could not have known what the law was, and not to protect someone who erred in understanding the law. Therefore the standard determined in s. 34S is, according to the state, a high standard of a kind of strict liability, and the defendant who wishes to succeed in a defence of a mistake of law is required, according to the state, to show a high standard of care and to take all reasonable steps to ascertain the law.

The state goes on to claim that in view of the high standard of conduct required by s. 34S of the Penal Law, it is insufficient for the defendant to rely on mistaken legal advice in order to succeed in the defence. The state admittedly recognizes that the mistaken legal advice may constitute evidence that a mistake was actually made and it is a circumstance that should be taken into account, but in the state’s opinion it is not capable on its own of proving that the mistake was reasonably unavoidable. The state claims in this respect that the reasonableness of the legal advice reflects upon the good faith and sincerity of the defendant who relies on the advice, but it is not a sufficient condition for recognizing the defence provided in s. 34S, nor does it necessarily indicate the reasonableness of the defendant’s mistake. Moreover, the state points to various legal policy considerations that it claims make it essential to adopt a very strict line with regard to a claim of reliance upon the legal advice of a lawyer. In particular the state mentions the concern of buying ‘ready-made’ opinions and turning a consultation with a lawyer into a fiction. According to the state, this danger mainly arises with regard to cases of ‘white collar’ crime, in which lawyers are regularly involved in giving legal advice. The state emphasizes in its pleadings that the actual possibility of being able to apply to, and receive clarifications from, an official body should constitute a decisive factor in examining the question whether the defendant did everything that was required of him in order to ascertain the law. When a defendant was aware of the possibility of applying to a competent official body and he did not do so, the state’s position is that his mistake of law should not be regarded as a reasonably unavoidable one. The state adds in this context that an application to a competent official body (where there is an opportunity of making one) should be preferable to relying on the advice of a lawyer, since it is capable of limiting the subjectification of the law. Therefore, when the individual has an opportunity of applying to a competent official body and he does not do so, or when he acts knowingly in defiance of the position of the competent authority, he takes upon himself the risk of acting in defiance of the law. With regard to the relevance of the judgment in Hurvitz v. State of Israel [2], which also considered a claim of reliance upon the legal advice of a lawyer, to the present case, the state argues that this judgment is only relevant to a case where the reliance negates the existence of the mens rea of the offence (such as a case involving an offence that requires a special mens rea), whereas in our case the argument of reliance is being made with regard to the defence provided in s. 34S of the Penal Law, which the court did not consider in Hurvitz v. State of Israel [2] at all.

17. In the specific case of the respondents, the state claims that the District Court erred when it only examined the respondents’ subjective good faith and failed to examine the means available to them for avoiding a mistake of which they did not avail themselves. In any case, the state claims that it can be seen from the findings of fact in this case that the respondents’ mistake was not a sincere mistake that was made in good faith, and therefore it does not even satisfy the subjective element of the defence provided in s. 34S of the Penal Law. The state says that from the viewpoint of the offences attributed to the respondents, we are not speaking of a complex or borderline case in so far as the applicability of restrictive trade practices law is concerned, but we are dealing with the basic prohibitions of price fixing and a division of the market, which lie at the heart of restrictive trade practices law and are included within the scope of the presumptions set out in s. 2(b) of the Restrictive Trade Practices Law.

With regard to Tnuva and Landsman, the state claims that the legal advice that they received from Advocate Yanovsky was general and informal, and that by relying on that advice Landsman chose to ‘turn a blind eye’ to the question of the legality of the transaction. In its pleadings, the state attaches special importance to Tnuva Ltd v. State of Israel [14], in which Tnuva and Landsman were admittedly acquitted by the Tel-Aviv District Court of an offence of a restrictive arrangement, but the aforesaid judgment rejected the claim that parties that form a partnership cannot be regarded as making a restrictive arrangement, which, according to the state, was in essence the claim on which Advocate Yanovksy’s legal advice on the subject of the TME transaction was based. The state says in this regard that the judgment of the District Court (which was given in an appeal after they were convicted by the Magistrates Court) was given on 1 September 1993, less than two months after TME was founded, and it claims that Landsman’s conduct after the judgment, and especially the fact that he ignored a criminal judgment that was given in his case, does not satisfy any standard of reasonableness. The state also claims that Advocate Yanovsky also ignored the significance of the judgment in Tnuva Ltd v. State of Israel [14], and that the legal advice that he gave to Landsman does not meet a standard that allows it to be relied upon for the purpose of the defence provided in s. 34S of the Penal Law. The state also says that another indication of the problematic nature of the TME transaction, which was known to Tnuva and Landsman, was the decision on 6 July 1994 of the director-general of the Antitrust Authority with regard to a merger between Tnuva and the Off HaNegev company, in which it was stated that the TME venture was being examined from the viewpoint of whether it complied with restrictive trade practices law. On the basis of the aforesaid, the state claims that Tnuva and Landsman deliberately ignored all the warning signs that were given to them and knowingly chose not to avail themselves of the possibility of applying to the competent authority.

With regard to Meir Ezra Marketing Ltd and David Ezra, the state claims that they also chose to bury their heads in the sand in so far as the question of the legality of the venture was concerned, and they deliberately ignored the warning signs that were given to them by the Antitrust Authority. They relied on the legal advice of Advocate Brandwein, which was brief and given orally. The state claims that David Ezra was aware of the reservations of the director-general of the Antitrust Authority with regard to the founding of TME, since he and Advocate Brandwein met with the director-general during November 1993, a short time after TME was founded, and at that meeting the director-general expressed his reservations with regard to the collaboration between Tnuva and Meir Ezra Marketing Ltd. Despite this, David Ezra did not take the trouble to clarify those reservations, nor did he make any further approach to his lawyer or to any other lawyer on this matter. The director-general also expressed his concerns with regard to the agreement between Tnuva and Meir Ezra Marketing Ltd in the decision of 4 February 1994 with regard to the merger between Meir Ezra Marketing Ltd and the Tohelet Ganz company and other companies, and he said that prima facie the agreement was likely to constitute a restrictive arrangement, but despite this Meir Ezra Marketing Ltd and David Ezra had done nothing, had not approached the director-general to ascertain his position and had not taken the steps set out in the Restrictive Trade Practices Law to ‘legitimize’ the restrictive arrangement.

18. In response to the state’s appeal, the respondents raise arguments both with regard to the determination of the District Court that the agreements that were made within the framework of TME are a restrictive arrangement, and in response to the state’s claims concerning the applicability in our case of the defence of mistake of law that is provided in s. 34S of the Penal Law. The arguments that apply to all of the respondents, as opposed to arguments that concern only some of the respondents, are the following.

According to the respondents, the District Court erred when it held that the resolutions adopted in the minutes of 25 November 1993 constitute a restrictive arrangement between TME and Meir Ezra Marketing Ltd. The respondents’ main argument in this regard is that TME was set up as an independent legal personality not only from a formal perspective but also from a substantive economic perspective, and it is a separate entity from Tnuva and Meir Ezra Marketing Ltd. In view of this, the respondents argue that the minutes reflect TME’s independent internal resolutions, and therefore those resolutions should not be regarded as a restrictive arrangement between Tnuva and Meir Ezra Marketing Ltd, nor should the actions of the joint venture be attributed in this case to the ‘authors’ of the venture, in such a way that de facto raises TME’s veil of incorporation. The respondents also claim that once TME was founded, it was entitled to appoint Tnuva and Meir Ezra Marketing Ltd as its agents, to determine at what price they would sell the meat that was marketed by them and how its marketing would be divided between them, and to decide on the basis of its own criteria that the marketing of the meat to the select customers would be done by itself directly. The respondents also say that the indictment does not attribute to them any offence with regard to the actual founding of TME, and they claim that the restrictions under discussion with regard to dividing the marketing between Tnuva and Meir Ezra Marketing Ltd were required by the actual founding of TME. An additional claim of the respondents in this regard is that Tnuva and Meir Ezra Marketing Ltd acted as the agents of TME, and therefore their joint activity with TME should be regarded as an act of one economic entity and the arrangements made in this context are not restrictive arrangements under the Restrictive Trade Practices Law, since they are not arrangements ‘between persons running businesses,’ as required under s. 2 of the Restrictive Trade Practices Law.

The respondents further argue that the arrangements that were determined in the minutes were not binding in the relationship between Tnuva and Meir Ezra Marketing Ltd, and they were never even implemented, since Tnuva and Meir Ezra Marketing Ltd continued to compete with one another in the field of meat marketing. In these circumstances, they argue that the arrangements amounted to a ‘dead letter’ and there was no reason to seek legal advice with regard to them on a recurring basis. In addition to the aforesaid arguments, Meir Ezra Marketing Ltd and David Ezra raise more specific arguments with regard to the District Court’s interpretation of the provisions of the minutes. They argue that the language of the minutes is unclear and therefore there is, at the very least, a reasonable doubt on the question whether it can be seen from the minutes that there was a price-fixing agreement between Tnuva and Meir Ezra Marketing Ltd. We should point out that the claims of Meir Ezra Marketing Ltd and David Ezra with regard to the interpretation of the provisions of the minutes are inconsistent with the interpretation of Tnuva and Landsman, who in general accept the state’s interpretation of these provisions.

19. In addition to their arguments concerning the substance of the resolutions that were adopted in the minutes, the respondents argue that the defence of mistake of law applies in their case, as the District Court held. The respondents’ main argument in this regard is that when the court found from a factual viewpoint that they did rely in good faith on the legal advice of their lawyers with regard to the legality of the arrangements that were adopted in the minutes, they should be entitled to succeed in the defence of a mistake of law provided in s. 34S of the Penal Law, with the result that they are not criminally liable for those arrangements. The respondents claim that neither the language nor the purpose of the aforesaid s. 34S provides any reason why the defence should be limited solely to cases of reliance on the legal position of a government authority rather than on the legal opinion of a private lawyer, since granting a defence to someone who relied on a government authority does not endanger the principle of legality any more than granting it to someone who relied on the advice of a lawyer. The respondents also claim in this respect that recognizing the possibility of relying on the legal advice of a lawyer for the purposes of the defence of a mistake of law will encourage people to consult lawyers and it will increase awareness and knowledge of the criminal law. The respondents also claim that the presumption of knowledge of the law is in itself an exception to the fundamental principle of the criminal law, according to which there is no offence without guilt, and Landsman even claims that the punishment of someone who relied in good faith on legal advice is unconstitutional. An additional claim of the respondents in this respect is that we should apply the tests that were laid down in Hurvitz v. State of Israel [2] with regard to the defence of reliance on legal advice, and that, for the purpose of the applicability of this defence, there is no reason why a distinction should be made between offences that require a mens rea of ‘special intent’ and offences that require an ‘ordinary’ mens rea.

The respondents also point out that the law does not contain any requirement that ‘all’ reasonable measures should be adopted in order to avoid a mistake of law. They argue that sometimes it is not reasonable to avail oneself of an additional method of ascertaining the law even if such a method exists. In any case, the respondents claim that on the dates relevant to the indictment there was no possibility whatsoever of obtaining a preliminary opinion from the Antitrust Authority, since this possibility was only incorporated in the Restrictive Trade Practices Law in the year 2000 when s. 43A of the law was enacted. The respondents also argue that the offence of a restrictive arrangement under the Restrictive Trade Practices Law is not essentially a criminal offence, and that applying the offence to this case, which concerns arrangements that were made within the framework of a joint venture that was set up for a genuine commercial purpose, is not self-evident. The Restrictive Trade Practices Law is vague on the question of its applicability to a situation of this kind; this is especially the case in view of the fact that in 1993, when TME was founded, there was no reference in Israeli law to the question of arrangements between parties to a joint venture. The respondents further claim that the application of the defence of a mistake of law should be examined from the viewpoint of the defendant and not of his lawyer.

An additional claim that is raised by Meir Ezra Marketing Ltd and David Ezra is that a mistake on the question whether a certain arrangement constitutes a ‘restrictive arrangement’ under the Restrictive Trade Practices Law is not a mistake of criminal law but of a non-criminal field of law, and therefore it should be examined according to the defence of a mistake of fact provided in s. 34R of the Penal Law, which only requires subjective good faith on the part of the defendant. Landsman for his part raises additional defence claims that are based on the provisions of s. 48 of the Restrictive Trade Practices Law, which concerns the liability of directors of a corporation for offences under the Restrictive Trade Practices Law that are committed by the corporation.

Additional arguments of the respondents address the conduct of the authorities in their case and the concrete legal advice that they were given. According to the respondents, the founding of TME, which involved the collaboration of Tnuva and Meir Ezra Marketing Ltd, was a public and open act that no one tried to conceal. They claim that the Antitrust Authority was also aware of the founding of TME, its activity in the field of importing and marketing meat and the marketing policy that was determined by it, and the state, through the Ministry of Industry and Trade, even cooperated with TME in the import of frozen meat into Israel. The respondents further claim in this regard that the position of the director-general of the Antitrust Authority with regard to TME being a restrictive arrangement, as presented in his decisions and at the meetings held with him, was vague and not unequivocal, and he himself did not think that the case was an easy or simple one. It is argued that in such circumstances there was no impropriety in the fact that the respondents relied on the advice of their lawyers on the question of the legality of the venture or in the fact that they did not stop the activity of the joint venture.

In the matter of the legal advice that was given to them by Advocate Yanovsky, Tnuva and Landsman say that in 1993 Advocate Yanovsky had already been acting as Tnuva’s main lawyer for many years, he was familiar with the TME transaction and had expertise in the field of restrictive trade practices law, and he was also asked specifically to examine the legality of the transaction from the viewpoint of these laws. Once Advocate Yanovsky had made the examination that he was asked to make and reached the conclusion, on the basis of all of the relevant information that was in his possession, that there was no legal impediment to the activity of TME, there was no basis, according to Tnuva and Landsman, for requiring them to apply in this matter to the Antitrust Authority or to act in other ways to ‘legitimize’ the arrangement. Tnuva and Landsman further argue that Advocate Yanovsky was in regular contact with the director-general of the Antitrust Authority with regard to non-competitive practices on the part of Tnuva, but the director-general failed as aforesaid to adopt an unequivocal position with regard to TME. With regard to the state’s claims that Landsman and Advocate Yanovsky ignored the judgment in Tnuva Ltd v. State of Israel [14] (which, it will be recalled, dealt with another case in which Tnuva and Landsman were charged with an offence of a restrictive arrangement in the context of a partnership), Tnuva and Landsman claim that both Landsman and Advocate Yanovsky were aware of this judgment, and Advocate Yanovsky’s conclusion with regard to the legality of the TME transaction was not precluded by the judgment in Tnuva Ltd v. State of Israel [14], since unlike in our case, the partnership that was considered in that case was a fiction whose sole purpose was to implement the exclusivity arrangements between the partners.

Meir Ezra Marketing Ltd and David Ezra also raise claims with regard to the legal advice that they were given by Advocate Brandwein. According to them, the advice of Advocate Brandwein concerning the legality of the TME transaction was given after a thorough examination of the matter was made in accordance with David Ezra’s request that Advocate Brandwein should examine the step of founding TME from the viewpoint of restrictive trade practices law. It is argued that Advocate Brandwein was an expert in the field of restrictive trade practices law, was involved in the transaction from beginning to end, was aware of its particulars and approved all of them as legal. Advocate Brandwein was also involved in drafting the minutes that led to the state charging Meir Ezra Marketing Ltd and David Ezra with criminal activity. Meir Ezra Marketing Ltd and David Ezra further claim that at the meeting that took place in November 1993 between the director-general of the Antitrust Authority, David Ezra and Advocate Brandwein the impression was that the director-general was not of the opinion that the formation of TME would involve a restrictive arrangement, and even in his decision concerning the merger with the Tohelet Ganz company all that was stated was that prima facie the arrangement might be a restrictive arrangement. On the basis of the aforesaid, Meir Ezra Marketing Ltd and David Ezra claim that their mistake concerning the legality of the restrictive arrangement, which resulted from their reliance on the legal advice of Advocate Brandwein, should give them a defence against being convicted for the arrangement (and they claim that the defence that should apply in their case, as stated above, is the defence of a mistake of fact under s. 34R of the Penal Law, but naturally they claim that the defence of a mistake of law under s. 34S of the Penal Law also applies to their case, as the District Court held).

Deliberations

Was a restrictive arrangement made between Tnuva and Meir Ezra Marketing Ltd?

20. Our consideration of the appeal will begin by examining the question whether a restrictive arrangement was made between Tnuva and Meir Ezra Marketing Ltd, within the meaning of this term in the Restrictive Trade Practices Law. The state claimed in the indictment that was filed in the District Court that Tnuva and Meir Ezra Marketing Ltd coordinated through TME the marketing in Israel of frozen kosher meat, which TME was supposed to begin to import following the Government Decision in 1993 to transfer the importing of this type of meat to private commercial concerns. The restrictions that the state attributed to Tnuva and Meir Ezra Marketing Ltd concerned price and price-reduction fixing for the meat marketed by them, as well as the division of the market with regard to ‘select customers’ and the amount of products that TME would sell to each of them and that would be marketed by each of them. These restrictions, which led to the respondents being charged with an offence of a restrictive arrangement, are set out in the minutes of the meeting of the board of directors of TME on 25 November 1993. In view of their importance to our case, we will cite below the text of the resolutions adopted in the minutes:

‘a. Direct marketing

a.1. The company shall market directly to the customers listed in appendix A of these minutes (hereafter: ‘the select customers’). Any change to the list of select customers shall require a resolution of the board of directors.

a.2. The company shall determine from time to time a recommended minimum price for its products (hereafter: ‘the minimum price’). The company shall also determine from time to time the credit frameworks (an amount and period) and the permitted price-reduction frameworks from the minimum price in sales to the select customers.

b.            Appointment of marketers

b.1. Tnuva and Meir Ezra Marketing Ltd (hereafter: ‘the marketers’) shall market the meat that they will buy from the company to customers that are not select customers.

b.2. The marketers may make sales at the minimum price or at a higher price.

b.3. The marketers shall be entitled to give a price-reduction on the minimum price only with the prior consent of the company.

The criteria that shall be taken into account by the company when it decides whether to allow a price-reduction shall be, inter alia, the following:

(*) The average amount of the price-reductions in sales to select customers.

(*) The amount of the sales to the customer for whom the price-reduction is requested.

(*) The collateral that has been received from the customer and the credit terms given to him.

…

b.6. For its sales to the marketers (less returns), the company shall pay the marketers a commission in an amount of 3% (plus VAT) of the minimum price (without VAT). No commission shall be paid at a different rate without a resolution of the board of directors. If a marketer makes a sale to a customer at a price that exceeds the minimum price, he shall be entitled to the full amount of the difference between the minimum price and the actual sale price, and no commission shall be paid by the company for this difference.

…

b.11. Approximately 80% of the amount of meat that is not marketed to select customers shall be sold to and marketed by Tnuva, and approximately 20% of the amount of meat that is not marketed to select customers shall be sold to and marketed by Meir Ezra Marketing Ltd. Within three months the board of directors shall decide whether and to what extent the amount of the marketing services that the company will purchase from Meir Ezra Marketing Ltd will be increased.

It will be recalled that the District Court held that these resolutions are a reflection of prior agreements between Tnuva and Meir Ezra Marketing Ltd that constitute a prohibited restrictive arrangement under the Restrictive Trade Practices Law. With regard to the resolutions set out in paragraphs a.2, b.2, b.3 and b.6, the District Court held that they contain a decision of TME as to the minimum prices at which Tnuva and Meir Ezra Marketing Ltd would be entitled to sell the meat to their customers. With regard to paragraphs a.1 and b.1 of the minutes, the District Court held that these reflect an arrangement between Tnuva and Meir Ezra Marketing Ltd as to the division of the customer market between Tnuva, Meir Ezra Marketing Ltd and TME, so that TME alone would be entitled to sell meat to customers who were defined as ‘select customers.’ With regard to paragraph b.11, the District Court held that it reflects a declaration of intent on the part of Tnuva and Meir Ezra Marketing Ltd with regard to the division of the quantities of meat that would be sold by them to customers who are not select customers.

Tnuva and Landsman do not dispute the interpretation of the District Court with regard to the content of the arrangements set out in the minutes, but they argue that the arrangements should not be regarded as prohibited restrictive arrangements. By contrast, Meir Ezra Marketing Ltd and David Ezra dispute even the manner in which the resolutions set out in the minutes should be interpreted. According to them, the paragraphs of the minutes that address the minimum prices did not intend to determine the prices at which Tnuva and Meir Ezra Marketing Ltd would be able to sell the meat to their customers. They claim that the purpose of those paragraphs was to determine the prices at which TME could sell the meat directly to the select customers (para. a.2), and to clarify that TME would not ‘recognize’ the sale of meat by Tnuva and Meir Ezra Marketing Ltd to their customers at a price less than the minimum price, which is the price that TME was supposed to receive from the marketers, so that TME would be liable to pay the cost of the price-reduction (paras. b.2 and b.3). The District Court rejected the arguments of Meir Ezra Marketing Ltd and David Ezra with regard to the interpretation of the provisions of the minutes relating to the minimum prices, and we have also reached the same conclusion. Even if it is possible to accept the claim of Meir Ezra Marketing Ltd and David Ezra that paragraph a.2 relates to the price at which the meat will be sold to the select customers, who are the direct customers of TME, and not the price at which Tnuva and Meir Ezra Marketing Ltd will sell the meat to their customers, this cannot help them, because paragraphs b.2 and b.3 of the minutes stipulate an express restriction for Tnuva and Meir Ezra Marketing Ltd with regard to the minimum prices at which they would sell the meat to their customers. There is no basis in the wording of the minutes for the claim of Meir Ezra Marketing Ltd and David Ezra that the sole intention in these provisions is that TME will not recognize a sale by Tnuva and Meir Ezra Marketing Ltd below the minimum prices unless it approved it in advance. This absence of any basis in the wording of the minutes for the interpretation proposed by Meir Ezra Marketing Ltd and David Ezra with regard to the provisions concerning the minimum prices is supported by the fact that the District Court’s conclusion with regard to these provisions is based on its impression from the testimonies that it heard from the persons who were involved on behalf of Tnuva and Meir Ezra Marketing Ltd in the contacts between the two companies and in formulating TME’s policy. In such circumstances, we see no reason to intervene in the District Court’s determination (which, it will be recalled, is not disputed by Tnuva and Landsman) that the minutes did indeed determine minimum prices for the meat that would be sold by Tnuva and Meir Ezra Marketing Ltd to their customers.

We have also reached a similar conclusion with regard to the provisions of the minutes that relate to the marketing of the meat to the select customers (paragraphs a.1 and b.1). A reading of the wording of the minutes clearly shows that these paragraphs determine the division of the customers between TME, which would market meat to the select customers, and Tnuva and Meir Ezra Marketing Ltd, which would market to customers who are not select customers. There is no support in the wording of the minutes for the contention of Meir Ezra Marketing Ltd and David Ezra that the sole purpose of the aforesaid provisions was to reflect the position that de facto prevailed in the market, and we see no reason to intervene in the factual determination of the District Court that the minutes reflect at the very least an ‘understanding’ between Tnuva and Meir Ezra Marketing Ltd that the meat would be sold to the select customers by TME and not by them. Similarly, paragraph b.11 of the minutes determines the division between Tnuva and Meir Ezra Marketing Ltd of the quantity of meat that would be marketed. Even if the provisions of this clause were not regarded by Tnuva and Meir Ezra Marketing Ltd as binding provisions from a contractual viewpoint (a claim that we shall address later), we see no reason to intervene in the interpretation that was given to them by the District Court.

In summary, we accept the District Court’s conclusion that the minutes of TME did indeed contain provisions that addressed the minimum prices at which Tnuva and Meir Ezra Marketing Ltd would sell the meat to their customers, the division of the customers between TME on the one hand and Tnuva and Meir Ezra Marketing Ltd on the other, and the division of the quantity of meat that would be bought from TME by Tnuva and Meir Ezra Marketing Ltd. Now that we have reached our conclusion with regard to the interpretation of the provisions of the minutes, we should examine whether these provisions do indeed constitute a restrictive arrangement under the Restrictive Trade Practices Law.

21. The term ‘restrictive arrangement’ is defined in s. 2 of the Restrictive Trade Practices Law in the following manner:

‘Restrictive arrangement	2. (a) A restrictive arrangement is an arrangement that is made between persons running businesses, according to which at least one of the parties restricts itself in a manner that is likely to eliminate or reduce competition in business between him and the other parties to the arrangement or some of them, or between him and a person who is not a party to the arrangement.
	(b) Without derogating from the generality of what is stated in subsection (a), an arrangement shall be regarded as a restrictive arrangement if it relates to any of the following matters:
	(1) The price that will be demanded, offered or paid;
	(2) The profit that will be made;
	(3) A division of the market, in whole or in part, according to the location of the business or according to the people or the type of people with whom they will do business;
	(4) The amount, quality or type of the goods or the services in the business.’

It has been held in our case law that the basic definition of the term ‘restrictive arrangement’ in s. 2(a) of the Restrictive Trade Practices Law is made up of four elements: the making of an ‘arrangement’; the arrangement is made between ‘persons running businesses’; a restriction is imposed on at least one of the parties to the arrangement; the restriction is made in a manner that is likely to eliminate or reduce competition in business between the restricted party and others (see CrimA 4855/02 State of Israel v. Borovitz [4], at p. 860). Section 2(b) of the Restrictive Trade Practices Law expands the general definition of the term ‘restrictive arrangement’ in s. 2(a) of the law and provides several absolute presumptions, according to which arrangements that contain a restriction with regard to certain matters shall be considered restrictive arrangements without it being necessary to prove that those arrangements are likely to harm competition. These ‘matters’ relate in practice to certain areas where a restriction inherently harms competition (see Tivall (1993) Ltd v. Sea Chef (1994) Ltd [1], at pp. 96-97; State of Israel v. Borovitz [4], at p. 869). It is also important to point out that the presumptions provided in s. 2(b) of the Restrictive Trade Practices Law are absolute not only with regard to the civil and administrative aspect of the definition of ‘restrictive arrangement’ but also with regard to the criminal aspect of that definition. Therefore, when we are dealing with a criminal proceeding concerning a restrictive arrangement with regard to one of the matters set out in s. 2(b) of the Restrictive Trade Practices Law, the state does not need to prove that the arrangement is likely to harm competition; it only needs to prove, to the degree of certainty required in criminal law, that the arrangement concerns one of those matters (see State of Israel v. Borovitz [4], at pp. 870-871).

Further to the definition of the term ‘restrictive arrangement’ in s. 2 of the Restrictive Trade Practices Law, s. 4 of the Restrictive Trade Practices Law lays down a prohibition of being a party to a restrictive arrangement that has not been ‘legitimized’ in one of the ways provided by the law (approval, permit or exemption), and s. 47(a)(1) of the Restrictive Trade Practices Law provides that a breach of the prohibition of being a party to a restrictive arrangement is an offence. Let us therefore examine whether there was a restrictive arrangement in this case that falls within the scope of the criminal prohibition in the Restrictive Trade Practices Law.

22. Three of the four elements of the restrictive arrangement that are set out above certainly exist in our case. First, the provisions set out in the minutes satisfy the definition of the term ‘arrangement’ in s. 1 of the Restrictive Trade Practices Law, where the term is defined in the following manner: ‘whether express or implied, whether in writing or orally or by conduct, whether legally binding or not.’ It has been held in our case law that this definition is very broad, and that it applies to every kind of consent between the parties to the arrangement, even if it does not amount to a binding contract or agreement. It has also been held with regard to the term ‘arrangement’ that ‘any minimal level of a joint understanding, consent or cooperation between the parties is sufficient to create it’ (see State of Israel v. Borovitz [4], at pp. 860-861, and the references cited there). In view of this broad definition, it is clear that the various resolutions that were adopted in the minutes of TME, whether they reflect an ‘understanding’ between Tnuva and Meir Ezra Marketing Ltd (as was held with regard to the select customers) or they merely constitute a ‘declaration of intent’ (as was held with regard to the division of the amount of meat marketing between Tnuva and Meir Ezra Marketing Ltd), satisfy the element of an ‘arrangement’ in s. 2 of the Restrictive Trade Practices Law.

Second, the resolutions that were adopted in the minutes do indeed impose restrictions on Tnuva and Meir Ezra Marketing Ltd. These restrictions relate both to the minimum prices at which they would be entitled to sell the meat to their customers and to the price-reductions that they could give, and also to the possibility of selling the meat to the select customers, which was restricted to TME.

Third, the matters addressed by the arrangements that are set out in the minutes undoubtedly fall within the scope of the absolute presumptions that are provided in s. 2(b) of the Restrictive Trade Practices Law, which, as we have said, do not require proof of the extent of the arrangement’s potential for harming competition. Thus, for example, the provisions of paragraphs b.3 and b.6 of the minutes concern the minimum price that Tnuva and Meir Ezra Marketing Ltd would demand from their customers, and it follows that they determine a restriction with regard to ‘the price that will be demanded, offered or paid’; paragraphs a.1 and b.1 of the minutes determine the manner in which the marketing to customers will be divided between TME, Tnuva and Meir Ezra Marketing Ltd, and thereby they determine a restriction with regard to ‘the division of the market, in whole or in part, according to the location of the business or according to the people or the type of people with whom they will do business’; and paragraph b.11 of the minutes determines the division of the quantity of the products that will be marketed by Tnuva and Meir Ezra Marketing Ltd, which is a restriction that relates to ‘the amount, quality or type of the goods or the services in the business.’ The state is therefore correct in its contention that the matters with regard to which Tnuva and Meir Ezra Marketing Ltd reached an arrangement — which determine restrictions with regard to the minimum price, the division of the market and the quantity of products that will be marketed, and how they will be divided — clearly go to the heart of restrictive trade practices law.

The main dispute between the state and Tnuva and Meir Ezra Marketing Ltd as to whether the arrangements set out in the minutes constitute restrictive arrangements therefore focuses on the question whether the remaining element in the definition of the term ‘restrictive arrangement’ — that the arrangement is made ‘between persons running businesses’ — is satisfied in our case.

23. According to the respondents, the requirement that the arrangement should be made ‘between persons running businesses’ in order that it should be regarded as a restrictive arrangement means that the arrangement should be made between different businesses, and therefore when we are speaking of an arrangement between different parties who operate within one business framework, this is not a restrictive arrangement at all within the meaning of the term in the Restrictive Trade Practices Law. Since the arrangements that led to the respondents being indicted were adopted within the framework of TME and were allegedly necessitated by its very founding, and since they were intended to regulate the relationship between TME and Tnuva and Meir Ezra Marketing Ltd, which are the agents of TME for the purpose of marketing the meat that it imports, the respondents claim that in the case before us the condition that the arrangement should be made ‘between persons running businesses’ is not satisfied. The respondents go on to argue that attributing the resolutions that were adopted by TME to Tnuva and Meir Ezra Marketing Ltd amounts to lifting TME’s veil of incorporation, which is unjustified, since the District Court held that TME was not set up in order to conceal the collaboration and the arrangements between Tnuva and Meir Ezra Marketing Ltd, and since they were not charged with an offence on account of the actual founding of TME, which was done for genuine economic reasons.

The respondents’ claims with regard to the condition that the arrangement should be made ‘between persons running businesses’ should be rejected. The requirement that is provided in s. 2 of the Restrictive Trade Practices Law, according to which an arrangement needs to be made ‘between persons running businesses’ in order for it to be considered a ‘restrictive arrangement’ was not intended to distinguish between persons who run ‘a business’ in the singular and persons who run ‘businesses’ in the plural (see Tivall (1993) Ltd v. Sea Chef (1994) Ltd [1], at p. 92). The purpose of this provision, as it has been determined in our case law, is to distinguish between businessmen and business enterprises, on the one hand, and entities that are not businesses, such as consumer bodies or the state in its executive function, on the other (see CA 2768/90 Petrolgas Israeli Gas Co. (1969) Ltd v. State of Israel [5], at p. 604; Tivall (1993) Ltd v. Sea Chef (1994) Ltd [1], at p. 92; State of Israel v. Borovitz [4], at p. 862). It need not be said that Tnuva and Meir Ezra Marketing Ltd are certainly business enterprises, and therefore the arrangement between them is without doubt an arrangement ‘between persons running businesses’ according to s. 2 of the Restrictive Trade Practices Law (in this regard it should be mentioned that the definition of the term ‘person’ in s. 4 of the Interpretation Law, 5741-1981, also includes corporations). Therefore the question that we are called upon to decide is whether the resolutions that are set out in the minutes of TME should indeed be regarded as an arrangement between Tnuva and Meir Ezra Marketing Ltd. The District Court answered this question in the affirmative, and after examining the respondents’ arguments, we see no reason to intervene in its conclusion.

In our case we are not required to decide whether the doctrine of the single economic unit, on which the respondents base their arguments, applies in Israeli restrictive trade practices law, nor are we required to decide the question of the scope of the prohibition of a restrictive arrangement with regard to agreements between competitors that are formulated within the framework of a joint venture between them (in this regard, see the Restrictive Trade Practices (Class Exemption for Joint Ventures) Rules, 5766-2006; M. Mizrahi, ‘A Joint Venture as a Restrictive Arrangement,’ 23 Hebrew Univ. L. Rev. (Mishpatim) 213 (1994); United States v. Penn-Olin Chemical Co. [15]; see also s. 3(5) of the Restrictive Trade Practices Law, which provides that an arrangement between a company and its subsidiary shall not be regarded as a restrictive arrangement). From the factual findings that were established by the District Court, which the respondents are not challenging at all in the appeal before us, it can be seen that the arrangements concerning the manner in which TME would market the frozen meat that it would import were determined by Tnuva and Meir Ezra Marketing Ltd before TME was founded. In these circumstances, the mere fact that these agreements, which from a substantive viewpoint were formulated by Tnuva and Meir Ezra Marketing Ltd before TME was founded, were subsequently enshrined in formal resolutions of TME’s board of directors, does not deprive them of their original character as a restrictive arrangement between Tnuva and Meir Ezra Marketing Ltd. For similar reasons we are not required to consider the respondents’ arguments concerning the supposed raising of TME’s veil of incorporation, since we are not dealing with internal resolutions of TME that are being attributed to its shareholders, but we are speaking, as aforesaid, of agreements between Tnuva and Meir Ezra Marketing Ltd that were made before TME was founded and before Tnuva and Meir Ezra Marketing Ltd were supposedly appointed as TME’s agents (cf. Tivall (1993) Ltd v. Sea Chef (1994) Ltd [1], at p. 92; in that case the question whether a restrictive arrangement could be made between partners in a partnership during the period when the partnership existed was left undecided, since it was found that the arrangements under discussion were made between the partners before the partnership was formed and they were intended to come into force during the period after it was terminated). But I should point out in passing that I doubt whether the single economic unit doctrine can be invoked when we are dealing with business enterprises such as Tnuva and Meir Ezra Marketing Ltd when the vast majority of their business activity (with the exception of the agreements between them that are alleged to constitute a restrictive arrangement) remained independent and separate. In a similar context Justice M. Cheshin held that:

‘With regard to a non-competition arrangement, it would appear that a clear distinction should be made between a case in which two businessmen merge their businesses so that they become one business and a case in which two businessmen create a partnership only with regard to a part of their businesses, while each of the two retains a separate and independent framework of activity. Even if we say that the first type of case does not present a restrictive arrangement — whether the law does not apply to the arrangement at all or whether the arrangement is a restrictive arrangement for which it is entitled to receive approval or an exemption — the second type of case should be regarded differently. At any rate, in so far as the condition of “persons running businesses” is concerned, this condition is completely satisfied in the second type of case, and when the purpose of the law is examined, there is no good reason to say that it does not apply to this type of case’ (see Tivall (1993) Ltd v. Sea Chef (1994) Ltd [1], at p. 93; emphasis in the original).

In any event, in the circumstances of this case there is no need to make any hard and fast determinations on the question of the scope of application of the one economic unit doctrine in Israeli restrictive trade practices law, since according to the findings that are based on the facts that were proved, this question does not arise at all.

24. We have therefore found that Tnuva and Meir Ezra Marketing Ltd concluded  a restrictive arrangement within the meaning of this term in s. 2 of the Restrictive Trade Practices Law, and in particular that the arrangement was made with regard to matters that are included within the scope of the absolute presumptions in s. 2(b) of the Restrictive Trade Practices Law. This arrangement was not ‘legitimized’ in any of the ways provided by the Restrictive Trade Practices Law, and when we found that Tnuva and Meir Ezra Marketing Ltd were a party to this restrictive arrangement, the conclusion that follows is that it has been proved that they committed the actus reus of the offence of a restrictive arrangement. In this regard it should be said that the claim that some of the arrangements determined  in the minutes were not actually implemented cannot help Tnuva and Meir Ezra Marketing Ltd, since the actual implementation of the restrictive arrangement is not a necessary element of the actus reus of the offence of a restrictive arrangement (see CrimA 7399/95 Nechushtan Elevator Industries Ltd v. State of Israel [6], at p. 121; CrimA 2929/02 State of Israel v. Svirsky [7], at p. 142; State of Israel v. Borovitz [4], at p. 857). It should also be pointed out that the existence of an economic justification for the arrangement that was made between Tnuva and Meir Ezra Marketing Ltd is not capable of precluding the commission of the offence of a restrictive arrangement, since the economic considerations that may justify the ‘legitimization’ of a restrictive arrangement need to be examined within the framework of the mechanisms provided for this purpose in the Restrictive Trade Practices Law (see, for example, the considerations set out in s. 10 of the Restrictive Trade Practices Law), and they cannot in themselves prevent that arrangement from being a restrictive arrangement.

With regard to the mens rea of the offence, no one denies in this case that the respondents were aware of the details of the arrangement between Tnuva and Meir Ezra Marketing Ltd, including the restrictions that were later incorporated in the minutes of TME. According to the rule that was laid down in State of Israel v. Borovitz [4], this awareness is sufficient for constituting the mens rea of the offence of a restrictive arrangement (see State of Israel v. Borovitz [4], at p. 873). It should also be noted that the mens rea of the offence of a restrictive arrangement does not require awareness of the existence of the normative element of the offence, namely awareness on the part of the defendant that his acts constitute a prohibited ‘restrictive arrangement’ under the Restrictive Trade Practices Law (see State of Israel v. Borovitz [4], at pp. 875-877). For the reasons that will be set out below, the circumstances taken as a whole — including the economic status and business of the parties that made the arrangement, the previous experience that Tnuva and Landsman had on a similar issue and the fact that the arrangement clearly concerns prohibitions that are laid down in s. 2(b) of the Restrictive Trade Practices Law — decisively influence the questions before us, and especially the question whether the defence of a mistake of law provided in s. 34S of the Penal Law can succeed.

We have therefore found that Tnuva and Meir Ezra Marketing Ltd both had the mens rea and committed the actus reus of the offence of a restrictive arrangement. Now we are required to examine whether, although they committed both aspects of the offence, Tnuva and Meir Ezra Marketing Ltd are entitled to succeed in a defence of a mistake of law under s. 45S of the Penal Law, as held by the District Court.

The defence of a mistake of law

25. The defence of a mistake of law, which led to the acquittal of the respondents in the trial court, is laid down in section 34S of the Penal Law. Because of its importance in our case, we should once again set out the wording of the section:

‘Mistake of law

34S. In so far as criminal liability is concerned, it makes no difference that a person thought his act was not prohibited, as a result of a mistake with regard to the existence of a criminal prohibition or with regard to the meaning of the prohibition, unless the mistake was reasonably unavoidable.’

The first part of s. 34S is based on the well-known rule that ignorance of the law does not excuse the defendant from criminal liability (ignorantia juris non excusat). But the final clause of the section provides an exception to this rule in circumstances where the defendant’s mistake with regard to the law was ‘reasonably unavoidable.’ The language of s. 34S of the Penal Law, which refers to ‘a mistake with regard to the existence of a criminal prohibition or with regard to the meaning of the prohibition,’ clearly shows that the section was intended to apply in situations where the defendant made a mistake concerning the criminal law. In State of Israel v. Borovitz [4], which considered the distinction between a ‘mistake of fact’ (under s. 34R of the Penal Law) and a ‘mistake of law’ (under s. 34S of the Penal Law), this Court held, following the provisions of s. 34W of the Penal Law that applies the provisions of the ‘General Part’ of the law to offences set out in other acts of legislation, that in the absence of a contrary provision, an alleged mistake concerning a criminal norm that is provided in a non-criminal statute should be classified as a ‘mistake of law’ within the meaning thereof in s. 34S of the Penal Law. It was therefore held that a claim concerning a mistake in understanding a criminal norm that is provided in the Restrictive Trade Practices Law should be examined in accordance with the provisions of s. 34S of the Penal Law that relate to a ‘mistake of law’ (see State of Israel v. Borovitz [4], at pp. 930-931). In view of this rule, the arguments of the respondents in this case with regard to a mistake in understanding the scope of the criminal prohibition of making a restrictive arrangement will be considered in accordance with the provisions of s. 34S of the Penal Law. It should also be noted that we are not required to consider the claims of Meir Ezra Marketing Ltd and David Ezra that a mistake as to whether a certain arrangement should be considered a restrictive arrangement under the Restrictive Trade Practices Law is a mistake with regard to a non-criminal statute that should be considered in accordance with the provisions of s. 34R of the Penal Law. This argument was expressly rejected in State of Israel v. Borovitz [4], and we see no reason to address it in this case (with regard to the distinction between a mistake with regard to a criminal statute and a mistake with regard to a non-criminal statute, see CrimA 389/91 State of Israel v. Weismark [8]). It should also be noted that the legislature saw no reason in s. 34S of the Penal Law to make an express distinction, with regard to the source of the mistake and the reliance on the erroneous legal position, between reliance on an official legal source, such as a competent authority that adopted an erroneous practice, and the advice of a private lawyer given to an individual. This distinction was taken into account in the American Model Penal Code and we shall address it below (see para. 29 below).

The question that we are required to decide is whether, in the circumstances of the case, the defendants’ mistake with regard to the criminal law, which the District Court held was the result of the defendants’ reliance on the legal advice of their lawyers that was later discovered to be erroneous, was ‘reasonably unavoidable,’ and therefore they should be exempted from criminal liability for the offence that they committed as a result of that mistake.

26. The exception provided as a defence in s. 34S of the Penal Law, according to which a mistake of law that is ‘reasonably unavoidable’ entitles the defendant to a defence, was enacted in amendment 39 of the Penal Law and changed the legal position with regard to a mistake of a defendant in a criminal trial that existed until that time. Before the aforesaid amendment was enacted, the law in force was s. 12 of the Penal Law (as it then stood), which provided that: ‘Ignorance of the law shall not serve to exempt anyone from liability for an offence, unless it is expressly stated that knowledge of the law is one of the elements of the offence.’ According to the provisions of the aforesaid s. 12, a defendant did not have any defence in cases of a mistake of criminal law, except in situations where knowledge of the law was one of the elements of the offence, in which case the mistake of law meant that all the elements of the offence had not been realized (see R. Kannai, ‘Lack of Awareness of Elements of the Offence or Mistake of Law: The Offence of Breach of Trust as an Example,’ Criminal Law Trends — Studies in the Jurisprudence of Criminal Liability (E. Lederman, ed., 2001) 203, at p. 227). The time-honoured rule that was originally found in s. 12 of the Penal Law, according to which ignorance of the law is no defence in criminal cases, was mainly based on the principle of legality, which requires the existence of a fixed boundary in the law — a boundary between what is permitted and what is prohibited, which is as objective as possible — that applies to all members of society equally. This is based on the outlook that the question whether certain conduct constitutes an offence or not should not be determined in accordance with the understanding, interpretation and subjective knowledge of various individuals but in accordance with the determination of the legislature and the interpretation of the authorities that are authorized for this purpose by law (see M. Gur-Arye, ‘Reliance on a Lawyer’s Mistaken Advice — Should it be a Defence against Criminal Liability?’ 2 Alei Mishpat 33 (2002), at pp. 36-37). This rule was based on the absolute presumption that there is no one who does not know the law and understand its content (see S.Z. Feller, Fundamentals of Criminal Law (vol. 2, 1987), at p. 545).

27. An additional rationale underlying the rule that ignorance of the law is no defence against criminal liability is the interest of promoting knowledge of the criminal law in view of the social objective of the norms that it prescribes. The prohibitions prescribed by criminal law in a given society reflect the types of conduct that are regarded by that society as forbidden and unacceptable. Some of these prohibitions concern offences that are inherently prohibited by every normative society, such as murder, rape and theft. These offences give legal expression to acts that from a moral viewpoint are wrong in themselves (mala in se) and do not require any positive knowledge of the law in order to know that they are prohibited. With regard to offences of these kinds, there is obviously no basis for accepting a claim of ignorance of the law, and it is hard to imagine a situation in which such a claim will be raised. But even offences that do not concern acts that are inherently prohibited reflect various values and interests that are essential for society and its development (such as the interest of ensuring free competition in the economy, which the offence of making restrictive arrangements is intended to protect). Therefore, even with regard to these offences (offences that are mala prohibita) — and maybe especially with regard to these offences — the individual ought to be required to ascertain the relevant criminal law in order to know where the boundary lies between what is permitted and what is prohibited in the various fields of his endeavours (see Feller, Fundamentals of Criminal Law, at pp. 549-550). The rule that ignorance of the law is no defence against criminal liability therefore promotes the social interest of studying and internalizing the criminal law. In this respect Prof. Miriam Gur-Arye discusses the duties that the rule imposes on society and its individual members as follows:

‘It is well known that prescribing criminal prohibitions has an educational purpose of proclaiming what conduct is regarded by society as prohibited, so that individuals will internalize the prohibition and not offend against the law. Society is duty-bound to ensure that knowledge of the law is possible, by requiring the legislature to draft the prohibitions clearly, by requiring the publication of criminal prohibitions and by imposing special restrictions on the ways of interpreting criminal prohibitions. The individual is duty-bound to take an interest in a law that is published and to ascertain what are the prohibitions that restrict him in his conduct’ (Gur-Arye, ‘Reliance on a Lawyer’s Mistaken Advice — Should it be a Defence against Criminal Liability?’ supra, at p. 42).

Conversely, there is a concern that if a mistake regarding the criminal law gives an individual a defence against criminal liability, this is likely to encourage ignorance of the criminal law and lead to a result whereby individuals seek to minimize their knowledge of the law in order to limit their criminal liability (see B. Lahav, ‘Ignorance of the Law,’ 6 Bar-Ilan Law Studies (Mehkarei Mishpat) 165 (1988), at pp. 179-180; A. Azar, ‘Ignorance of the Law and Official Mistaken Advice in Criminal Law,’ 10 Tel-Aviv University Law Review (Iyyunei Mishpat) 535 (1985), at p. 537).

28. The principle that, as a rule, ignorance of the law is no defence against criminal liability is therefore a fundamental principle in our criminal law, as it is in other legal systems. Notwithstanding, occasionally, when it concerns offences that are not inherently criminal, this basic principle may conflict with another important basic principle of criminal law, namely the principle that there can be no liability in criminal law without fault (nullum crimen sine culpa). This conflict arises from the fact that when a person commits an act that constitutes a criminal offence as a result of a mistake of law, this means that he assumed that the act was permitted, or at least did not constitute a criminal offence. Such circumstances may give rise to a concern that strict adherence to the rule that a mistake of law is no defence against criminal liability is inconsistent with the requirement of fault. This difficulty arises particularly in the modern age where every individual is subject to a large number of prohibitions, of which some concern complex issues (such as taxation, restrictive trade practices, securities and environmental law) that require a not insignificant degree of professional expertise in order to identify the relevant norms that apply in a specific case. Sometimes the norms themselves are worded in language that is unintelligible to laymen; moreover, sometimes interpretation of the law is not simple and may give rise to differences of opinion between various judicial instances. In such circumstances, a strict application of the presumption that every man knows the law, without exception, appears unrealistic and is contrary to our sense of justice (see Feller, Fundamentals of Criminal Law, at pp. 553-554; M. Gur-Arye, ‘The Draft Penal Law (Preliminary Part and General Part),’ 24 Hebrew Univ. L. Rev. (Mishpatim) 9 (1994), at p. 62).

29. Various legal systems have contended with the question of the relationship between the principle that ignorance of the law is no defence and the principle of fault. In order to minimize the consequences arising from the conflict between the rule that ignorance of the law is no defence and the principle of fault, various Continental legal systems have recognized as a defence that when the defendant’s mistake of law was unavoidable, he should be exempt from criminal liability. The defence, which is based on the theory of fault, was developed in German law; the premise of this defence lies in the outlook that the mens rea of the offence admittedly does not include knowledge of the law, but in order to convict someone of an offence, an element of fault is also required. According to this approach, a mistake of law, which no one could have prevented, rules out the element of fault and should therefore constitute a defence against criminal liability (see Azar, ‘Ignorance of the Law and Official Mistaken Advice in Criminal Law,’ supra, at pp. 540-542; Kannai, ‘Lack of Awareness of Elements of the Offence or Mistake of Law: The Offence of Breach of Trust as an Example,’ supra, at pp. 226-227; Feller, Fundamentals of Criminal Law, at p. 555). In the German legal system, the aforesaid theory is expressed in s. 17 of the German Criminal Code (the wording of the last part of s. 34S of the Penal Law was drafted in a manner similar thereto). The section states that a mistake of law will constitute a defence against criminal liability, if the defendant could not have avoided it:

‘Fehlt dem Täter bei Begehung der Tat die Einsicht, Unrecht zu tun, so handelt er ohne Schuld, wenn er diesen Irrtum nicht vermeiden konnte…’.

‘If when committing an act the perpetrator is unaware that he is doing wrong, then he acts without fault if he could not avoid this mistake…’ (tr. by the editor).

An additional point of interest concerning the aforesaid section 17 is that the section goes on to state that if the defendant could have avoided the mistake, it can only serve as a ground for leniency in sentencing.

It should be pointed out that American law has also considered the question of a mistake of law, but it has adopted a different approach from the Continental one. As a rule, criminal law in the United States does not recognize a mistake of law as a defence against criminal liability. The main exception to this involves offences where the mens rea requires an intention to contravene the law; in such a case, a mistake of law may negate the mens rea required for the offence (see Cheek v. United States [16]). It should also be noted that, in consequence of the different approaches found in German law and American law on the question of a mistake of law, these two legal systems have different approaches to a mistake of law arising from reliance on legal advice. Whereas in German criminal law the defence of a mistake of law, which is prescribed in section 17 of the German Criminal Code, may (as a rule, subject to various conditions relating, inter alia, to the professional competence of the lawyer and the manner in which the legal advice was given) also apply to a situation in which the mistake arises from reliance on legal advice (H. Schumann, ‘Criminal Law,’ in Introduction to German Law (W.F. Ebke & M.W. Finkin, eds., 1996), at pp. 395-396), according to the approach accepted in American law, reliance on erroneous legal advice of a lawyer will serve as a defence against criminal liability only if the reliance negates the mens rea required by a specific offence (see Bisno v. United States [17], at pp. 719-720; 21 Am. Jur. 2d (Criminal Law), §156 (2006)). Following this approach, section 2.04(3)(b) of the American Model Penal Code, which recognizes the existence of a defence of a mistake of law in a case of reliance on an erroneous legal position, restricts the application of the defence to several specific situations in which the reliance was based upon an official legal source — such as legislation, a judicial decision or an administrative permit — which is later found to be invalid or erroneous.

30. The defence against criminal liability provided in the last part of s. 34S of the Penal Law, in a situation where the defendant’s mistake with regard to the criminal law was reasonably unavoidable, was therefore intended to reflect the principle of fault and to prevent an insult to one’s sense of justice that may be caused in a situation where a person is convicted of an offence as a result of a mistake of law that he could not have avoided in any reasonable way. Similar to the approach in German law and contrary to the approach in American law, the defence prescribed in s. 34S of the Penal Law is a general defence against criminal liability and is not limited merely to offences where the standard of mens rea required is higher than the standard of the ‘ordinary’ mens rea under s. 20 of the Penal Law.

With regard to the purpose of this defence, the learned Prof. Miriam Gur-Arye says that:

‘The underlying assumption in this context is that recognizing a mistake in criminal law does not affect the scope of the prohibition. This is interpreted solely by the competent court. The exemption from liability is granted because it would not be fair to attribute liability to someone who, despite all the reasonable efforts that he made, could not have correctly known the true scope of the prohibition as determined by the competent authority’ (see Gur-Arye, ‘The Draft Penal Law (Preliminary Part and General Part),’ supra, at p. 63).

The provisions of s. 34S of the Penal Law therefore reflect the point of balance, which was determined by the Israeli legislator in amendment 39 to the law, between the rationales underlying the rule that ignorance of the law is no defence and the need to preserve the principle of fault in criminal law. The rule that a mistake of law does not constitute a defence in criminal cases continues to prevail in Israeli law even after amendment 39, but since the enactment of s. 34S of the Penal Law there is an exception to this rule in situations where the defendant’s mistake of law was ‘reasonably unavoidable’ (it should be noted that s. 34S of the Penal Law applies in our case even though the offences attributed to the respondents were committed before amendment 39 of the Penal Law came into force, since it is legislation that is ‘lenient’ towards the defendant, within the meaning of this term in s. 5(a) of the Penal Law). It is also important to point out that the burden of raising the defence concerning the application of the defence provided in s. 34S of the Penal Law and of bringing evidence on this issue rests with the defendant, since the presumption provided in s. 34E of the Penal Law is that an act is committed in conditions where there is no defence against criminal liability. When the defendant raises the defence of a mistake of law and brings evidence on this issue that is capable of raising a reasonable doubt concerning the validity of the defence, the prosecution is required, under s. 34V(2) of the Penal Law, to prove beyond all reasonable doubt that this defence against criminal liability does not apply in the defendant’s case (see CrimA 4675/97 Rozov v. State of Israel [9], at pp. 368-372).

A ‘reasonably unavoidable’ mistake — the elements of the defence and the conditions for its application

31. The question that is raised in the present case by the last part of s. 34S of the Penal Law is how we should interpret the requirement that the defendant’s mistake of law should be ‘reasonably unavoidable.’ From a linguistic viewpoint this requirement is based on two elements: one, the existence of a ‘mistake,’ and the other, that the mistake is ‘reasonably unavoidable.’

 The first element — the element of the ‘mistake’ — is a subjective element that addresses the question whether the defendant did indeed make a mistake relating to the criminal law. From the first part of s. 34S it can be seen that this mistake can concern either the actual existence of a criminal prohibition in a certain case or the meaning of the prohibition (see State of Israel v. Borovitz [4], at pp. 931-932; for a distinction between the two types of mistake, see Feller, Fundamentals of Criminal Law, at pp. 545-546). For a defendant to be entitled to a defence against criminal liability, his subjective mistake should be a sincere one that was made in good faith. A defendant who suspected that his act was unlawful but chose to shut his eyes to this suspicion rather than looking into it cannot benefit from the defence of a mistake of law, since this defence was intended to ensure, as stated in para. 30 above, that the principle of fault is upheld. When the mistake of a defendant is not a sincere one and was not made in good faith, or when the defendant has a suspicion that his act is unlawful, but despite this he averts his eyes and does nothing to verify the matter, there is no justification for departing from the rule that a mistake with regard to the criminal law is no defence against criminal liability (see State of Israel v. Borovitz [4], at p. 935).

The second element — the requirement that the mistake is ‘reasonably unavoidable’ — defines the type of mistake of law that constitutes a defence in criminal cases. This element lays down an objective standard with regard to the nature of the defendant’s mistake of law. According to this objective standard, only a reasonably unavoidable mistake may constitute a defence against criminal liability. It should be noted that it is not sufficient for the defendant’s mistake with regard to the criminal law to be a ‘reasonable mistake.’ The requirement that the mistake should be ‘reasonably unavoidable’ indicates that only if the defendant was unable to avoid the mistake even though he acted reasonably will he be entitled to benefit from the defence of a mistake of law. If in the circumstances of the case it was not reasonably possible to take action to prevent the mistake, or if, despite taking such action, the defendant’s mistake was still unavoidable, the mistake of law will preclude the defendant’s criminal liability (see Gur-Arye, ‘The Draft Penal Law (Preliminary Part and General Part),’ supra, at p. 63). It is important to point out in this regard that the legislature worded s. 34S of the Penal Law in general terms and did not define an exhaustive list of circumstances in which the defendant’s mistake of law will exempt him from criminal liability.

It should also be noted that the addition of the objective test that a mistake of law should be ‘reasonably unavoidable’ is capable of clarifying the distinction between the defence of a mistake of law under s. 34S of the Penal Law and the defence of a mistake of fact under s. 34R of the Penal Law. The latter merely provides a subjective test of a person ‘who does an act while believing in a factual position that does not exist.’ This subjective test was introduced in amendment 39 of the Penal Law, and it changed the requirement that existed previously in s. 17 of the Penal Law, which contained both a subjective and an objective test, according to which the defendant’s mistake of fact needed to be ‘sincere and reasonable’ in order to constitute a defence against criminal liability (see CrimA 4260/93 Haj Yihya v. State of Israel [10], at p. 873; for the view that amendment 39 of the Penal Law did not change the law concerning a mistake of fact, see S.Z. Feller, ‘Mistake of Law,’ 12 Bar-Ilan Law Studies (Mehkarei Mishpat) 5 (1995)).

32. The defence under consideration in this case, as an exception to the wide-ranging rule in our criminal law, is a narrow one, and its limits are expressed in the fact that the two elements in the last part of the section — that the mistake is ‘unavoidable’ despite acting ‘reasonably’ — are objective elements that lay down a high standard for that defence. This leads to the conclusion that the question whether a defendant’s mistake in a criminal case was reasonably unavoidable or not will be determined in accordance with the means at his disposal in the specific case for ascertaining the law, the type of offence with regard to which the defence of mistake of law is raised and the extent of the efforts made by the defendant to avail himself of the means at his disposal for ascertaining the law, as well as background information relating to the defendant and his awareness of the elements of the offence in accordance with his individual abilities. The defendant’s choice of a certain way of ascertaining the law, as well as the extent of the efforts that he should make, are subject to the test of reasonableness. In this context we accept the respondents’ argument that the language and purpose of s. 34S of the Penal Law do not require a defendant to avail himself of ‘all’ the possible methods available for ascertaining the law. If the defendant did indeed take reasonable steps to verify the criminal law, in view of the type and complexity of the offence and in view of the information that he could obtain in the circumstances of the case with reasonable efforts, and despite all this he made a mistake of law, the defendant’s mistake should be regarded as reasonably unavoidable.

A.    An objective unavoidability is not an absolute unavoidability but a reasonable unavoidability

33. According to the standard determined by the legislature with regard to the defence of a mistake of law, it is insufficient that the defendant was not negligent with regard to the criminal law in order for him not to be convicted; on the other hand, the requirement of reasonableness provided in s. 34S of the Penal Law is capable of making it unnecessary for the defendant to take every possible step. Therefore the defendant will admittedly be required to take steps to ascertain the relevant criminal law if he wants not to be convicted by virtue of that defence, but as we have said, these steps do not need to be absolutely ‘all’ the possible steps, but only those steps that are reasonable in the circumstances.

We should also point out that the purpose of the defence provided in the section under discussion — to prevent a person being convicted where he is not at fault — supports the conclusion that the defence of a mistake of law should not be restricted solely to cases where there is an absolute objective impediment to knowing the law. As we shall explain below, in certain limited circumstances the defence will apply even when the defendant was aware of the existence of the relevant criminal law, but acted only after he examined the applicability of the law to his conduct and relied on serious professional advice or knowledge with regard to the interpretation of the law in the circumstances of the case, provided that the defendant committed the offence after he was reasonably unable to avoid the legal mistake.

B.    The defence is applicable to a mistake of law whether it was based on the position of the official authority or whether it was based on the advice of a lawyer

34. The broad language of s. 34S of the Penal Law does not contain any restriction on the source of, or the reason for, the mistake of law, and it makes it possible within the scope of the defence to include even a mistake that resulted from reliance on the erroneous legal advice of a lawyer. It should therefore not be said that only reliance on the opinion or interpretation of an official authority may serve as a defence of a mistake of law. We accept the respondents’ argument that, in certain conditions, reliance on the legal advice of a lawyer may also exempt the defendant from criminal liability. This approach can also be seen in an article of the learned Prof. S.Z. Feller, one of the originators of the defence in our criminal law, who wrote the following:

‘When an individual’s mistake of law is the result of a reasonable — and necessarily also sincere — reliance on the erroneous interpretation, operation or implementation of the law made by a competent authority, then it must be agreed that such a mistake is reasonably unavoidable, and therefore it should serve as a ground for an exemption from criminal liability. Moreover, this should not be limited merely to an “official” interpretation, since a person may also act in this manner as a result of a reasonable reliance on erroneous legal advice. There is therefore in our opinion no reason to compile a closed list of sources or reasons for an “authoritative” erroneous interpretation, on which it is reasonable to rely. The main issue is that the court finds, in its discretion, that the defendant’s mistake was, in the circumstances of the case, reasonably unavoidable, and therefore it is preferable to leave the decision to that discretion’ (S.Z. Feller, ‘Mistake of Criminal Law or non-Criminal Law: Where is the Dividing Line?’ 5 Hebrew Univ. L. Rev. (Mishpatim) 508 (1974), at pp. 562-563; for a similar approach, see Gur-Arye, ‘The Draft Penal Law (Preliminary Part and General Part),’ supra, at p. 63).

Although we have said that pleading the defence does not depend upon there being an official interpretation of the law, and even the advice of a lawyer may be used as a defence, it can be determined that a distinction should be made between the weight of a defence argument that is based upon legal advice deriving from an official interpretation of a law and the weight of a defence argument that is based on legal advice given by a lawyer. It should also be noted that even the state does not deny that the defendant’s reliance on the advice of a lawyer is a circumstance that should be taken into account when we decide whether he is entitled to the defence provided in s. 34S of the Penal Law. The state even agreed in the appeal that there may be situations in which the mistake of a defendant in a criminal trial, which derived from the erroneous legal advice of his lawyer, will exempt him from criminal liability for an offence that he committed in reliance on that advice. Notwithstanding, the state claims that in many cases obtaining the advice of a lawyer will not constitute taking all the reasonable steps to ascertain the law, and therefore it will not be sufficient to enable the defendant to succeed with the defence. We accept this position of the state. The substantive issue that we need to decide — and this would appear to lie at the heart of the dispute between the parties — is what are the circumstances in which the reliance of a defendant on the legal advice of his lawyer can constitute taking reasonable steps so that his mistake will constitute an unavoidable mistake within the meaning thereof in the law, which will be capable of exempting the defendant from criminal liability in accordance with s. 34S of the Penal Law?

Now that we have accepted the argument that in certain circumstances the defence provided by the legislature allows the advice of a lawyer to be recognized for the purpose of a defence of a mistake of law, we need to take into account the need to interpret the scope of the defence narrowly, both because the defence is an exception to the fundamental rule that ignorance of the law is no defence and because it involves considerable risks of harm to the public interest that is protected by the Penal Law. Therefore, while we recognize the existence of a mistake of law as a new defence against criminal liability, we should take into account the risks and the pitfalls and we should determine criteria that will outline, in so far as possible, the limits of the defence, or at the very least provide tools for limiting the defence to the true purpose for which the exemption from liability was determined in the absence of an element of fault.

C.    The disadvantages or risks that the defence of a mistake of law presents to the public’s enforcement interest

35. In principle we accept the state’s argument that granting an exemption from criminal liability because a defendant relied on the erroneous legal advice of his lawyer involves several dangers. The main dangers that this presents, in our opinion, are the concern that the defence will be abused by buying legal opinions ‘to order’ for the purpose of obtaining immunity or a defence against criminal liability, and the concern that the norms laid down by the criminal law will not become accepted practice (see Gur-Arye, ‘Reliance on a Lawyer’s Mistaken Advice — Should it be a Defence against Criminal Liability?’ supra, at pp. 47-49).

The concern that legal opinions will be bought ‘to order’ is especially relevant in cases of complex ‘economic’ offences (such as restrictive arrangement offences and tax offences), which are mostly offences of the mala prohibita type, where no ‘natural’ moral and social intuition necessarily exists. In a significant number of cases involving these offences, and especially when the relevant provisions of the law have not yet been given an authoritative interpretation of the court, a skilled lawyer will be able to give a legal opinion on the legality of his client’s actions that will be consistent with the interests of that client. The respondents’ claim that there are ways of minimizing this concern, including the possibility of bringing criminal and disciplinary proceedings against lawyers and thus compelling them to defend their opinion before the court, is an approach that makes the defence of reliance on legal advice too broad and is likely to hinder the realization of the purpose of enforcing criminal norms. This approach is also likely to impose a heavy burden on the person giving the legal advice, a lawyer who is not a party to the criminal proceedings, rather than the person who committed the offence. In any case, even if the methods proposed by counsel for the respondents may be implemented in certain cases, in many other cases they will not be capable of effectively allaying the concern raised by the state that legal opinions will be bought ‘to order.’ In this respect the learned B. Lahav said in his aforementioned article:

‘There are many cases in which it is possible to write two comprehensive and learned opinions that will be highly respected by the court and will have conflicting conclusions… since a defendant can almost always obtain a learned and comprehensive opinion whose conclusions will suit his expectations. Consultations with a lawyer will thereby become a fiction that is intended to prove that the defendant supposedly tried to ascertain the law. As we have said, proving that the opinion was written with criminal intent is almost impossible, and in any case a lawyer is not obliged to write an opinion that is consistent with the conclusion of the court provided that the opinion is well-founded, and a good lawyer will have no difficulty in doing this’ (see Lahav, at p. 205).

We should also not ignore the fact that allowing legal advice to be used as a defence raises additional concerns, of which the most significant one is the concern that an unfair disparity will be created between defendants with ample means who can rely on the advice or reputable lawyers and defendants who do not have the means to consult lawyers with recognized levels of expertise and professionalism. I incline towards the opinion that the main solution to this is to develop alternative mechanisms of prior opinions given by official professional authorities — a mechanism that was introduced with regard to restrictive arrangements in the provisions of s. 43A of the Restrictive Trade Practices Law, after the offences in this proceeding were committed; a prior opinion of a competent official authority will naturally be of greater weight than a private legal opinion. A prior official opinion with regard to economic and other offences concerning regulation and supervision, where there are authorities responsible for enforcement, may resolve a large number of the difficulties that are likely to arise with regard to private legal advice. We should point out that the concerns involved in granting defendants an exemption from criminal liability in cases where they erred with regard to the criminal law as a result of reliance on the erroneous legal advice of their lawyers does not justify a total rejection of such a defence. Such an outcome is inconsistent with the language of s. 34S of the Penal Law and its purpose, which is to prevent the conviction of persons who are not at fault, and even the state does not argue that this is the desirable outcome. But we accept the state’s argument that the aforesaid concerns justify a strict approach and great caution when we consider whether to acquit a defendant on the basis of a defence of reliance on the erroneous legal advice of his lawyer.

It therefore follows that even though there is no reason in principle why the defence of a mistake of law under s. 34S of the Penal Law should not be applicable in circumstances where the mistake arises from the defendant’s reliance upon the advice of a lawyer, it would appear that the criteria that should be adopted when examining whether a defence of a reasonably unavoidable mistake should succeed are naturally stricter than those that should be adopted when a defendant seeks to base his defence on the opinion or legal position of a competent official authority.

D. Criteria for examining the defence

36. It should be stated at the outset that for a defence of a mistake of law to succeed in a specific case, the claim that the defendant relied on the opinion of a lawyer in that case should itself satisfy the test of reasonableness. This test is applied with a view to the specific circumstances relating to that person, the possibilities available to him for ascertaining the legal position and the legal question that arose in his case. The more complex the legal question and the more unclear and ambiguous the law, the more reasonable it is to rely on professional advice on that issue, including the advice of a lawyer. By contrast, where the question is less complex and the conduct under scrutiny lies closer to the heart of the relevant offence, it will be less reasonable to rely on the advice of a lawyer as a justification for that conduct. The reasonableness of the reliance, which concerns the subjective opinion of the defendant, also depends to a large extent on the status and professional experience of the person who seeks to rely on his lawyer’s advice. Obviously the defendant’s subjective attributes are capable of shedding light on the question of the reasonableness of the reliance on the advice that was given. The more senior the position held by a person and the greater his professional experience, the more he is expected to be familiar with the laws concerning his fields of endeavour and the problematic issues that they involve; in such circumstances, a ‘blind’ reliance on the advice of a lawyer with regard to those laws will be less reasonable. Moreover, within the context of the defendant’s good faith and subjective attributes, it is important to point out that the nature of the legal question under consideration and the position held by the person who seeks to rely on the legal advice of his lawyer are important not only for the claim of reliance on the legal advice, but also for the type of mistake that was made.

We should also point out that in view of the language and purpose of s. 34S of the Penal Law, the objective test provided therein and the difficulties inherent in too broad an interpretation of the defence of reliance on the advice of a lawyer, we should adopt stricter criteria for reliance on the advice of a lawyer for the purpose of the defence in s. 34S of the Penal Law, than those laid down in Hurvitz v. State of Israel [2] (in the opinion of Justice Or, at pp. 155-160).

37. The following factors and criteria should be taken into account, as some of the means of examining a defence of a mistake of law as a result of reliance on legal advice and deciding whether it can serve as a defence under s. 34S, in order to ascertain whether the mistake was unavoidable.

First, the legal advice should be based on all of the facts that are relevant to the specific case. In other words, a defendant who wishes to receive legal advice is required to reveal to the party giving the advice all of the facts that are relevant to the matter on which he wishes to receive the advice. It may be assumed that in most cases a client who wishes to receive legal advice with regard to the law that is applicable to the action that he intends to take is aware of the facts that are required for the legal advice, and therefore he should be obliged to reveal to the lawyer all the relevant circumstances and tell him all of the precise information that is needed for giving the advice. But sometimes, especially in the case of a lawyer who has a close knowledge of the client’s affairs, the facts needed for the opinion may also be based on information that is personally known to the lawyer, provided that the person requesting the opinion is convinced that his lawyer is aware of the facts.

Second, someone who wishes to receive an opinion concerning the law on a certain question should approach a lawyer that has expertise in the field relevant to the legal opinion. As we have said, someone who seeks legal advice is obliged to disclose all the relevant facts to the expert. It need not be said that in view of the scope and variety of norms that govern the various fields of law, it will be difficult, at least in the great majority of cases, for a lawyer to have a thorough knowledge of all of those fields. Therefore, if a person genuinely and sincerely wishes to avoid committing an offence against the criminal prohibitions that apply in a certain field, such as economic offences, tax offences, restrictive trade practices and securities, and is interested in receiving a legal opinion on which he can rely in this respect, he should approach a lawyer who, to the best of his knowledge, has expertise in that field. We should point out in this context that although the fields of expertise of lawyers in Israel are not officially regulated, we are of the opinion that as a rule a reasonable person who acts in good faith and wishes to avoid committing an offence is capable of finding a lawyer with expertise in the field relevant to his case without any great difficulty. Notwithstanding, consulting a lawyer who prima facie does not have any special expertise will not in itself rule out the applicability of the defence; everything depends upon the good faith of the person seeking the advice.

Third, in order that legal advice may give a defendant the possibility of a defence of a mistake of law, it should be seen to be a serious legal opinion, and it should therefore usually be in writing. The importance of an opinion being in writing for the purpose of the defence prescribed in s. 34S of the Penal Law is mainly probative, but it also has a substantive value. From a substantive viewpoint, it is obvious that a written opinion concerning the legality of a certain act or transaction will be more precise and the content of the advice on which the defendant claims he relied will be clearer and of greater weight. In the probative sphere, a written opinion will give the court the possibility of examining the precise nature of the legal advice that the lawyer gave his client, and thereby assessing more effectively the defence of a mistake of law and the reasonableness of the measures taken by the defendant to ascertain the law. Moreover, a written opinion can strengthen the seriousness of the claim that the defendant relied on legal advice that he received. With regard to the question of writing, a distinction should be made between the position that was examined in Hurvitz v. State of Israel [2], which considered the question of the mens rea required for an offence of special intent, which is subjective in nature, and a case in which a defence is raised within the context of s. 34S of the Penal Law, which provides that a mistake of law should be ‘reasonably unavoidable.’ It should be noted that we accept that there should be no absolute requirement of a written opinion, but it is clear that as a rule legal advice that is not given in writing will not satisfy the standards required to determine that the mistake was ‘reasonably unavoidable.’

Fourth, a legal opinion that is capable of serving on its own as a defence against criminal liability only has significance and weight if the defendant chose this course of action to ascertain the law in the absence of other more appropriate courses of action, such as a prior opinion of a competent authority as to the interpretation of the law that it adopts in the circumstances of the type under discussion, the existence of a court judgment or any accepted procedures or guidelines on the matter in issue. We should add to this that if a person who relies on a mistake of law has in his possession specific information concerning the matter in issue, it will be taken into account when examining the sincerity of the mistake and the reliance on the methods adopted to avoid a mistake of law. If the defendant adopted such measures, he may succeed with the defence of a mistake of law, even if the court hearing his case ultimately decides to adopt a different legal position to the one that appears in the opinion that he received, provided that the court is persuaded that, despite the proper and clear steps taken by the defendant to ascertain the law, his mistake of law was unavoidable.

In concluding this part of the judgment, we should also point out that the criteria set out above do not constitute a closed list, and it may be assumed that additional criteria for examining the question of whether legal advice given to a defendant can entitle him to rely on a mistake of law will be developed in future case law on the subject of the interpretation of the exception in s. 34S of the Penal Law. It is also worth pointing out that in order to succeed in a defence of mistake of law, the client needs to rely on his lawyer’s advice in good faith. As we explained in para. 31 above, when the client does not make a sincere subjective mistake with regard to the criminal law, or when the client suspects that what he is doing is prohibited, he has the necessary mens rea for the offence, and the opinion of his lawyer or of any other party that gives him advice will exempt him from criminal liability.

38. The additional issue that we are called upon to decide concerns the significance that should be attributed to the possibility of applying to the competent administrative authority in order to obtain its legal opinion, when the defendant chose not to take advantage of this possibility but to rely on the ‘private’ legal advice of his lawyer (assuming, of course, that the lawyer’s advice was obtained in accordance with the conditions set out above). According to the state, the mere existence of a possibility that a defendant may apply to a competent authority and receive clarifications or guidelines with regard to the legality of his actions should constitute a decisive circumstance of great weight when the court decides whether the defendant did everything required of him in order to ascertain the law. The respondents, on the other hand, argue that official advice should not be given a higher status than the advice of a private lawyer, and that the defence provided in s. 34S of the Penal Law should not be limited in the manner suggested by the state.

Without determining any hard and fast rules, our position on this question inclines towards the position presented by the state. As we said in para. 32 above, a defendant’s choice of the methods of ascertaining the criminal law that is relevant to his case should satisfy the test of reasonableness. Where there is a real possibility of obtaining the legal opinion of the competent authority, and especially where there is a statutory arrangement that allows this (such as the arrangement provided today in s. 43A of the Restrictive Trade Practices Law), a mistake of law by a defendant who preferred to rely on the legal advice of his lawyer rather than applying to the competent authority would not appear to be a mistake that is reasonably unavoidable. In such circumstances, it may be assumed that the defendant will be required to explain why he or his lawyer did not apply to the competent authority to ascertain its legal opinion, before he can persuade the court that he did indeed make a reasonably unavoidable mistake. The defendant has the burden of explaining why in these circumstances he was satisfied with the legal advice of his lawyer and why this was a reasonable course of action, even though there was a possibility of ascertaining the legal viewpoint of the competent authority; prima facie there is no reason in principle why such a defendant should not make use of the defence provided in s. 34S of the Penal Law, but the burden of persuading the court that his mistake was indeed reasonably unavoidable will be greater. It need not be added that in a situation where there is no possibility of applying to the authorities, the fact that a defendant, who chose to rely on the legal advice of his lawyer, did not make an application to the authority does not make his mistake of law one that could reasonably have been avoided.

From general principles to the specific case

Did the respondents make a ‘mistake’ of law?

39. In the appeal before us, the state claims that the defence provided in s. 34S of the Penal Law does not apply in the respondents’ case, since from a subjective viewpoint they did not make a sincere ‘mistake’ of criminal law in good faith, and from an objective viewpoint their mistake was not ‘reasonably unavoidable.’ It should be noted, however, that the state does not dispute that the respondents received legal advice from their lawyers with regard to the TME transaction and that according to the advice that they received there was no legal impediment to carrying out the transaction from the viewpoint of restrictive trade practices law. The respondents for their part do not claim that they were unaware of the existence of the Restrictive Trade Practices Law and the prohibition in that law of making restrictive arrangements, but they claim that in view of the legal advice that they received, they made a mistake of law with regard to the applicability of the prohibition to the restrictive arrangements in their case.

With regard to Tnuva and Landsman, the state bases its claims that their mistake was not made in good faith on the judgment in Tnuva Ltd v. State of Israel [14] and the decision of the director-general of the Antitrust Authority on the application to merge Tnuva and the Off HaNegev company. In Tnuva Ltd v. State of Israel [14] Tnuva and Landsman were convicted by the Magistrates Court of an offence of making a restrictive arrangement with regard to a partnership that Tnuva and other companies set up in order to sell various kinds of goods at the ‘Lev HaNegev’ shopping mall in Beer-Sheba, in which it was stated that each of the partners would have an exclusive right to market to the partnership the products that fell within its sphere of expertise. The Magistrates Court, which convicted Tnuva and Landsman, held that the mere existence of the partnership had no effect on whether a certain arrangement did or did not constitute a restrictive arrangement. In the judgment in Tnuva Ltd v. State of Israel [14], which was given on 1 September 1993 (a short time after TME was set up and before the meeting of the board of directors of TME that considered the marketing policy that had been agreed between Tnuva and Meir Ezra Marketing Ltd), the District Court upheld the determination of the Magistrates Court that the formation of the partnership did not exempt the partners from the application of restrictive trade practices law, even though it decided to acquit them for other reasons. In view of these facts, the state claims that when it decided to cooperate with Meir Ezra Marketing Ltd and TME was formed, Landsman and Tnuva had effectively been convicted of an offence of a restrictive arrangement in a case which the state claims involved similar circumstances to those in the present case. Despite this, the state claims that Tnuva and Landsman deliberately ignored the ramifications of the case on the legality of the cooperation between Tnuva and Meir Ezra Marketing Ltd. The state also raises similar claims with regard to the attitude of Tnuva and Landsman to the decision of the director-general of the Antitrust Authority on 6 July 1994 with regard to the merger between Tnuva and the Off HaNegev company, in which the director-general said with regard to TME that: ‘this venture is being examined by us from the viewpoint of its compliance with restrictive trade practices law.’ According to the state, Tnuva and Landsman should have known that this decision raised questions with regard to the legality of the TME venture, and at the very least they should have reconsidered the legality of the venture.

Just as the state raises claims with regard to the lack of good faith on the part of Landsman and Tnuva, it also raises similar claims with regard to David Ezra and Meir Ezra Marketing Ltd. These claims are mainly based on several remarks made by the director-general with regard to the TME venture. In this respect the state refers to the meeting that took place in November 1993 between David Ezra, Advocate Brandwein and the director-general, in which the director-general expressed his reservations with regard to the cooperation between Tnuva and Meir Ezra Marketing Ltd. Another statement by the director-general on the subject of the cooperation between Tnuva and Meir Ezra Marketing Ltd appeared in his decision of 4 February 1994 concerning the merger between Meir Ezra Marketing Ltd and the Tohelet Ganz company and other companies, in which the director-general expressed his concerns regarding the cooperation between Tnuva and Meir Ezra Marketing Ltd. He said that prima facie the agreement between Tnuva and Meir Ezra Marketing Ltd might constitute a restrictive arrangement under s. 2 of the Restrictive Trade Practices Law, and he intended to examine the ramifications of the arrangements between Meir Ezra Marketing Ltd and Tnuva from the viewpoint of restrictive trade practices.

40. After considering the state’s arguments, we do not see any reason to intervene in the factual finding of the District Court with regard to the respondents’ subjective mistake of law, in view of its finding with regard to the objective element of the defence of a mistake of law. We should also point out that we are also giving weight to the fact that this finding is based on the impression that the court received from the testimonies that it heard from Landsman and David Ezra, as well as Advocates Yanovsky and Brandwein, who gave the legal advice to Tnuva and Meir Ezra Marketing Ltd, on which the respondents’ claim of a mistake of law is based.

Nevertheless, it should be emphasized that from the evidence before us it can be seen that the respondents’ mistake of law only concerned the question of the applicability of the prohibition of making restrictive arrangements in circumstances where the restrictive arrangement is made between competitors prior to setting up a joint venture, in which that arrangement is supposed to be put into operation. The respondents did not make any mistake — and in the circumstances of the case they also could not have made a mistake, sincerely and in good faith — with regard to the fact that the restrictions set out in the minutes were prohibited restrictive arrangements under the Restrictive Trade Practices Law. These restrictions, which relate, inter alia, to the minimum prices at which Tnuva and Meir Ezra Marketing Ltd would market the imported meat to their customers, and to the division of the meat marketing market between the two companies and between them and TME, are blatantly and unambiguously restrictive. As the state points out, this is a case of restrictions that lie at the very heart of the law of restrictive trade practices, and they even fall within the scope of the absolute presumptions provided in s. 2(b) of the Restrictive Trade Practices Law. When a case concerns restrictions of this kind, it will be very difficult for an experienced and knowledgeable businessman — and especially businessman such as Landsman and David Ezra, who do not deny that they were aware of the existence of the Restrictive Trade Practices Law and the prohibition provided therein against making restrictive arrangements — to discharge the burden imposed on them under s. 34S of the Penal Law and of showing a reasonable doubt that they made a mistake of law, sincerely and in good faith, with regard to the legality of restrictive arrangements of this kind. In view of the problematic nature of the arrangements that were made between Tnuva and Meir Ezra Marketing Ltd, of which the respondents were aware, the respondents satisfied themselves with the advice of their regular lawyers, according to which setting up the TME venture made the transaction permissible from the viewpoint of the law of restrictive trade practices. This was a vague question addressed to the lawyers without any explanation, and the reply was given orally, without a written legal opinion and without any satisfactory reasoning. Was it really reasonable to rely on a reply that a joint venture, in which restrictive arrangements that were formulated before the venture was set up would be implemented, would legitimize the blatant illegality inherent in these arrangements?

Was the respondents’ mistake ‘reasonably unavoidable’?

41. Let us therefore examine whether the legal advice that was given to the respondents rendered their mistake concerning the law of restrictive trade practices, as explained above, reasonably unavoidable.

As we said above, the restrictive arrangements that are the subject of the present appeal, which were set out in the minutes of 25 November 1993, are arrangements that concern the very heart of the definition of a restrictive arrangement in the Restrictive Trade Practices Law, and they clearly fall within the scope of the absolute presumptions provided in s. 2(b) of the Restrictive Trade Practices Law, since they concern agreed prices and a division of the market. The respondents had a well-established business background in the field of fixing prices and marketing, and they even took part in the preliminary investigations in the case before us. Moreover, Tnuva and Landsman had previous experience as a result of their indictment in Tnuva Ltd v. State of Israel [14], whereas David Ezra applied in the course of the investigations to the director-general of the Antitrust Authority. Therefore, reliance on an oral legal opinion without details or reasoning, according to which it was possible to make agreements of the kind that they made, and that these did not constitute a prohibited restrictive arrangement simply because the competitors who make the agreement decided to adopt it within the framework of a third party that they set up, does not amount to a ‘reasonably unavoidable’ mistake.

The aforesaid arrangements were made shortly before TME was formed, as a solution that circumvented the law. The respondents were aware of the danger signals and in these circumstances it cannot be said that all of the reasonable steps were taken to prevent the mistake with regard to the legality of the arrangements.

The respondents relied on advice that was given orally and without a written opinion; they did not consider the distinction made in Tnuva Ltd v. State of Israel [14], of which Tnuva and Landsman were aware at that time, and they had no answer to the express concerns that the director-general of the Antitrust Authority raised with David Ezra. These circumstances are relevant to the question whether the legal mistake, on which they sought to rely, was ‘reasonably unavoidable.’ The respondents, who admitted that they were aware of the existence of the law of restrictive trade practices and even sought to examine the legality of the TME venture in accordance with this field of law, satisfied themselves with a vague and oral reply to the legal question that they asked their lawyers.

42. Furthermore, as senior directors in their corporations and persons with considerable business experience, Landsman and David Ezra should have been personally aware of the problems presented by the TME venture and the arrangements made in it from the viewpoint of the law of restrictive trade practices. Admittedly the mistake of law made by the two of them was a sincere mistake, as the District Court held; but in view of the nature of the arrangements between Tnuva and Meir Ezra Marketing Ltd, which were clearly restrictive arrangements, the reliance by Landsman and David Ezra on the legal advice given to them, without examining the matter in depth and without at least asking their lawyers for a reasoned and argued opinion, was unreasonable. The respondents’ unreasonableness in relying on the legal advice, as it was given to them in this case, is especially manifest in view of the concrete indications that the TME venture was problematic.

Thus, Landsman’s conduct was particularly unreasonable in view of the express finding in Tnuva Ltd v. State of Israel [14] that the formation of a partnership between competitors was incapable of facilitating the circumvention of restrictive trade practices law. Even if the legal question that arose in that case was not identical to the one that was examined in the case before us, the similarity between the two cases was sufficient to require Landsman to act in order to receive clear and reasoned clarifications concerning the distinction between the two situations. Even if we assume in Landsman’s favour, as the District Court held, that he made a sincere mistake with regard to the question of the effect of the joint venture on the legality of the restrictive arrangement, this certainly was not a mistake of law that satisfies the high objective standard laid down in s. 34S of the Penal Law, namely that the mistake should be ‘reasonably unavoidable.’ Similarly, David Ezra, who met with the director-general of the Antitrust Authority and was aware of his reservations with regard to the legality of the TME venture, should have taken action to obtain a reasoned and detailed legal opinion, which would clarify why despite the reservations of the director-general the TME venture did not contravene the law of restrictive trade practices. By failing to do this or anything else that might properly clarify the legal position, David Ezra’s mistake of law — even if we assume that from a subjective viewpoint it was a sincere mistake — was not a ‘reasonably unavoidable’ one.

Therefore it cannot be said in the circumstances of the case that the respondents’ legal mistake, even if it was made in good faith, was ‘reasonably unavoidable.’

In this context, it is important to point out further that in the case before us the specific criminal liability of Landsman and David Ezra for the restrictive arrangement that was concluded  between Tnuva and Meir Ezra Marketing Ltd is based on the provisions of s. 48 of the Restrictive Trade Practices Law, which provides that in the case of an offence under the Restrictive Trade Practices Law that is committed by a corporation, anyone who is an active director in the corporation at the time when the offence is committed is also criminally liable (see CrimA 4148/03 Cohen v. State of Israel [11]; State of Israel v. Borovitz [4], at pp. 928-929). Since no one disputes that Landsman and David Ezra were aware of the restrictive arrangement in our case, and since their reliance on the legal advice given to them, in the manner in which it was given, was unreasonable, it follows that the defence in the last part of s. 48 of the Restrictive Trade Practices Law, which applies to an active director in a corporation who proves that ‘the offence was committed without his knowledge and that every reasonable measure was taken to ensure compliance with this law,’ does not apply to them. In conclusion it should be noted that in view of the direct involvement of Landsman and David Ezra in the restrictive arrangement under discussion in our case, there was no reason prima facie why they should not have been found in this case to have direct criminal liability for this restrictive arrangement, as officers of Tnuva and Meir Ezra Marketing Ltd (see Nechushtan Elevator Industries Ltd v. State of Israel [6], at p. 121; State of Israel v. Borovitz [4], at pp. 858-859). But since the indictment only charges Landsman and David Ezra with an offence under s. 48 the Restrictive Trade Practices Law, and since we have found that they do bear criminal liability under that section, we do not see any reason why we should make a firm ruling on the question of the direct criminal liability of Landsman and David Ezra for the restrictive arrangement under discussion in this case.

We should also point out that our finding that in the circumstances of the case the respondents’ reliance on the legal advice that was given to them by their lawyers was unreasonable makes it unnecessary to make a ruling on the pleadings of the parties with regard to whether the respondents were able or unable to ascertain the legal position of the Antitrust Authority on the subject of their mistake of law.

Summary

43. Since we have found that the respondents made a restrictive arrangement, within the meaning of this term in the Restrictive Trade Practices Law, and that they are not entitled to succeed in the defence of a mistake of law under s. 34S of the Penal Law, because we have determined that their mistake was not ‘reasonably unavoidable,’ we are led to the conclusion that the appeal should be allowed. The result is therefore that Tnuva and Meir Ezra Marketing Ltd are convicted of being parties to a restrictive arrangement under s. 2 and s. 47(a)(1) of the Restrictive Trade Practices Law, whereas Landsman and David Ezra are convicted of the same offence under the same sections together with s. 48 of the Restrictive Trade Practices Law. In our finding that the respondents should be convicted of committing an offence under the Restrictive Trade Practices Law we have not ignored the difficulty raised by the passage of time. Many years have passed since the offence was committed and approximately eleven years have passed since the indictment was filed. This difficulty troubled us very much, but we have reached the conclusion that we have no alternative but to convict the respondents.

From the pleadings of the state before us it was clear that the main purpose of filing this appeal — more than eight years after the offence was committed — was to establish the correct interpretation of s. 34S of the Penal Law and the scope of the defence provided therein. The state was concerned that the judgment of the trial court gave too broad an interpretation to this defence, in a manner that was likely to have an effect on other ‘white collar’ crimes. The passage of time since the offence in the indictment was committed will be taken into account when we consider the sentence (for the passage of time since the offence was committed as a ground for leniency in sentencing, see CrimA 2848/90 Asa v. State of Israel [12]; CrimA 3632/92 Gabbai v. State of Israel [12). Even the fact that the District Court held that the respondents’ mistake of law was a sincere mistake should be taken into consideration by the prosecution in the sentence that it seeks. We shall take all of this into account after we hear the arguments of the parties on sentencing.

The appeal is therefore allowed and the respondents are hereby convicted of the offence with which they were charged in the indictment.

 

Justice E.E. Levy

I agree.

 

Justice S. Joubran

I agree.

 

 

Appeal allowed.

28 Tishrei 5768.

10 October 2007.

 

 

 

 

 

Justice E. Mazza

I agree to accepting the appeal, as proposed in the opinion of my colleague Justice Or.  The approach of my colleague, as to definition of the protected value at the foundation of the prohibitions on “sedition” according to its meaning in section 136(4) of the Penal Code, is consistent with the approach I expressed, in a minority opinion, in the judgment under appeal (see CrimA 6696/96 Kahane v. State of Israel [1] at p. 566 and on); and I also accept the reasons of my colleague on this matter.  On the other hand, I cannot agree to some of the positions of my colleagues, the President and Justice Or, that the realization of the offenses of sedition is conditioned on the existence of a circumstantial element.  In my opinion in CrimA 2831/95 Elba  v. State of Israel [9] I explained at length (at pp. 266-268, 275-276) why the offense of incitement to racism according to section 144B of the Penal Code, does not require proving probability of the occurrence of a harmful consequence to any degree.  For those same reasons I again determined, in the judgment under appeal before us (see: Ibid. at pp. 564-566), that the offenses of sedition also do not include an element of potential consequence, whose existence is to be determined using one probability test or another.  For the reasons stated in the two said judgments, and for the reasons of my colleague, Justice Dorner, in her opinion in the further hearing before us, I am of the opinion, that offenses of sedition do not include a probability element.

 

It was decided by a majority of opinions as per the opinion of Justice Or.

 

29 Kislev 5761

November 27, 2000

 

Editor’s notes: 1.  The Hebrew verb lehasit has been translated as ‘to incite seditious acts’.

2.  Following the judgment in HCJ 8613/98 and the Court’s determination that section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 applies only to sedition by a terrorist organization and does not apply to sedition by individuals, the Ordinance was amended such that section 4(a) of the Ordinance was nullified and in its stead an offense of sedition to violence or terror was established in the Penal Code.