Criminal Procedure

Association for Civil Rights in Israel v. Israel Police

Case/docket number: 
HCJ 3809/08
Date Decided: 
Monday, May 28, 2012
Decision Type: 
Original
Abstract: 

 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

Petitions concerning the constitutionality of some of the arrangements prescribed in the scope of the Criminal Procedure Act (Powers of Enforcement – Communications Data), 5768-2007, which came into effect on June 27, 2008 (hereinafter referred to as “the Communications Data Act” or “the Act”) and enables the Israeli investigatory authorities to obtain communications data from all the communications companies – the various cellular or landline telephone companies and Internet providers. Obtaining those data does not include obtaining the content of the messages transmitted. The petitions essentially revolve around the right to privacy in the modern era. At the heart of the petitions is the balance between, on the one hand, concern regarding government’s over-intrusion into the individual’s life hand due to increasing technological abilities, and the importance of recognizing the advantages that technology provides as a tool to ensure security and public order on the other. The petitioners concentrated their constitutional arguments around the three main aspects of the Act: the ability to obtain a judicial order under section 3; the ability to obtain an administrative order without a court procedure under section 4; and the establishment of a database run by the investigatory authorities under sections 6 and 7.

 

The High Court of Justice (in an extended panel of seven Justices, and decision authored by then President D. Beinisch) dismissed the petitions on the following grounds –

 

There is no question, in view of the authorities established in the Act, that the Act does indeed unconstitutionally infringe on the right to privacy.

 

The Petitioners asserted that in addition to infringing on privacy, the act implicates legally recognized rights involved in the professional privileges including the right to representation, freedom of the press, free association, free expression, freedom of occupation, religious freedom and more. The concept of privilege in our legal system essentially extends professional privilege to the content of conversations between the professional, who may enjoy professional privilege (hereinafter referred to as “professional”), and the privileged person. It does not extend to the very existence of a connection with the professional. The purpose is to allow the privileged person a realm of free communication between them and the professional. The exception is the case of journalists (their case is different because the very identity of the person who contacts a journalist can constitute part of journalistic privilege in order not to expose the journalist’s source despite the protection available to such source). The Petitioners were unable to demonstrate that the Communications Data Act per se, which does not permit the transmission of message content, infringes on the various different professional privileges established by legislation and the case law. Even were there an infringement, it is marginal. It does not reach the core of the right that benefits from extensive protection. Consequently, nor was it found that it was possible to show infringements to other rights that privilege is designed to protect. Nevertheless, for the purposes of the discussion, the Court assumed the ability to obtain professionals’ communications data does constitute an indirect infringement of the right of privacy.

 

Of course mere infringement of the right of privacy – and its indirect outcomes – does not sufficiently warrant striking down the Act. The Act’s infringement of the constitutional right must meet the requirements in the limitations clause of Basic Law: Human Dignity and Liberty. Should it appear that the infringement does meet those requirements, there will be no reason to find the Act unconstitutional.

 

Since the petitioners also agree that the purpose of the Act – to provide the Police and the other enforcement authorities with effective tools to fight crime in the developing modern world, to facilitate the prosecution of offenders, and to enable quick responses to urgent situations (for example when human life is at stake or offenders who have already committed offences need to be traced immediately) – is worthy, and since it is clear that the Law is not inconsistent with the values of the State of Israel, the discussion focused on analyzing the proportionality of sections in question. Based on a narrow interpretation of these sections, the Court concluded that the Act is proportional, as it properly balances the purposes of the Act and any infringement on the right of privacy.

 

Under section 3 an investigatory authority, as defined in the Act, may request a magistrates’ court’s permission to obtain communications data. The Court held that although the language of sections 3(a)(2) and (3) do prima facie permit investigatory authorities to request a court order to obtain communications data in order to achieve general objectives, the investigatory authority is not actually authorized to do so.

 

The proper constitutional interpretation of sections 3(a)(2) and 3(a)(3) of the Communications Data Act, which is consistent with the language and purposes of the Act, is that the investigatory authorities may ask a court for an order according to the Act merely for the purpose of detecting concrete offences or offenders (in order to detect a particular offender or investigate or prevent a particular offence that is anticipated or being performed), and not for the purpose of general intelligence activity related to any offences or offenders. Given this interpretation, the arrangement prescribed in section 3 meets all three of the proportionality criteria. This interpretation is consistent with the State’s position as well as the prevailing constitutional concepts in legal systems similar to ours.

 

The Court dismissed the Petitioners’ request to apply the Act in its entirety, particularly section 3 – which sweepingly applies to misdemeanours – to felonies. Moreover, the Court did not see fit to narrowly interpret section 3 to provide for court orders only where misdemeanours of particular level of seriousness or  where communications data is an inherent component of the crime (for example computer hacking) are involved. Because the mechanisms existing in the Act – and essentially the judicial review of the application – can, certainly at present, adequately address to the Petitioners’ concern about the arrangement’s improper use.

 

Section 4 authorizes the Police or the Military Police CID (but not the other investigatory authorities) to urgently obtain communications data regarding felonies only through an administrative – rather than judicial – order, effective for 24 hours. Section 4 lacks is silent on limits that are included in section 3, such as discretion but primarily the limitation on transferring a professional’s communications data (according to these sections, where there is authorization of a competent officer, who believes it is urgently necessary to do so, it is prima facie possible to transfer a professional’s communications data without restriction) (hereinafter referred to as “the administrative arrangement”). The Court held that, ab initio, given the specific purpose of section 4 and the limited potential of infringing the privilege of most professionals due to obtaining the data permitted by the Act, the absence of specific reference in this section to the context of professionals does not render in disproportional, a fortiori in view of the proper interpretation of the section (as detailed below).

 

In terms of the exercising the authorities under sections 3 and 4 of the Act, the provisions do not provide for an order in circumstances where the purpose of the order is general intelligence activity for the detection of offences.

 

The Court further held that exercising the authority in section 4 of the Act should be interpreted to sparingly permit obtaining communications data, in extreme cases, for the purpose of dealing with offences that require it and only in urgent cases where a court order clearly cannot be obtained according to the procedure prescribed in section 3 due to circumstances such as saving of life or other serious circumstances. Certain considerations, including that the subscriber is a professional, the extent of his involvement in the offence, the type of data sought, the degree of urgency, the severity of the offence and other considerations must always be taken into account (that is that in exercising section 4, the narrow arrangements prescribed in section 3 can help to identify relevant factors for exercising the discretion).

 

Nevertheless, different treatment of journalistic privilege is appropriate. The State therefore acted properly when it prescribed that a procedure involving journalists would trigger special conditions. Restrictions on the use of orders, as detailed in section 4, are required by the purpose of the Act and the balance necessary for achieving this purpose. The Court accordingly held that when the subscriber is a journalist who is neither a suspected nor the victim of the offence, order to obtain communications data of the traffic type under section 4 will not be granted.

 

As for the sections 6 and 7 which regulate the database – the Court did not find it appropriate to intervene in these sections’ establishment of a database to be kept by the investigatory authorities, so as to limit the ability to keep in the database identifying information of anyone whose telephone number is unlisted. Having held that the Act should not be interpreted to permit the database to be used for general Police intelligence or infrastructure activity and assuming this will in fact be done, there is no justification to limit collecting certain numbers in the database in a way that would enable people who choose to conceal their information from the eyes of law enforcement authorities.

 

In view of all this the Court held that the arrangements prescribed in the Act, including the judicial arrangement, the administrative arrangement and the keeping of unlisted numbers in the database, indeed meet the requirements of the limitations clause and do not constitutionally justify intervention. Additionally, the Court found that review of the Act as a whole, together with all the arrangements and internal balances it includes, led to the conclusion that intervention was not justified.

 

Nevertheless, the Court emphasised that the enforcement authorities are tasked with considerable work in the proper exercise of their powers, and must exercise strict caution and care while applying the Act solely to the necessary extent and degree, bearing in mind it may infringe on certain rights. The Knesset and the Attorney General, who are legally responsible to regularly review the extent of the Act’s application, also shoulder a great responsibility.

 

In conclusion, the Court dismissed the Israel Bar’s Petition that the Act should prescribe that obtaining communications data in violation of the Act cannot serve as admissible evidence in legal proceedings. The Petition to mandate judicial review of administrative orders under section 4 before any use of evidence obtained through the administrative order, was also rejected.

 

Justice E. Arbel: Joins the Court’s opinion and adds two observations. According to her, section 4(b) of the Act, which limits granting a permit to a period of no more than 24 hours, should be interpreted as prohibiting a competent officer from renewing the permit at the end of that period or some time thereafter. It should also be interpreted to require the competent officer to secure a court order under section 3 of the Act, as is necessary after 24 hours. That interpretation prevents infringement of the right of privacy beyond the necessary (Deputy President E. Rivlin concurred with this observation). Moreover, according to Justice Arbel, there should also be judicial review over the implementation of section 4 by ex post facto approval of the permit. Justice Arbel reaches this conclusion by analogizing the provisions of section 5(d) of the Secret Monitoring Act with regard to the retroactive judicial review of permits granted in urgent cases without a permit from the court.

 

Justice H. Melcer differs from the President’s opinion on two points: (a) the protection the Act affords anyone in the context of professional privilege applies by law, including case law; (b) the proper constitutional interpretation of section 4 of the Act and the limits of its use. His view on both points leads to a constitutional-interpretive conclusion that a competent officer, as defined by section 1 of the Act, may not act according to section 4 of the Act when professional privilege prima facie applies. The only way to try to obtain communications data in such cases necessitates a court’s approval according to section 3 of the Act (and in particular section 3(b)), subject always to the provisions of law (including case law).

 

In light of all this, the Petitions were unanimously dismissed. Regarding the interpretation of sections 3, 6 and 7 of the Act, the Court decided according to President (Ret.) D. Beinisch’s opinion with all other Justices concurring. Regarding the interpretation of section 4 of the Act, the majority decided joined President (Ret.) D. Beinisch’s opinion, that the power prescribed in that section can also be exercised when a “professional’s” communications data are involved, subject always to the limitations and reservations detailed in the opinion. Justice H. Melcer, in his dissent, believed that the power prescribed in section 4 cannot be exercised in order to obtain a permit under the Act in the case of a “professional”.

 

Voting Justices: 
Primary Author
majority opinion
Non-writer
majority opinion
Non-writer
majority opinion
Non-writer
majority opinion
Author
concurrence
Author
concurrence
Non-writer
majority opinion
Full text of the opinion: 

In the Supreme Court

Sitting As the High Court of Justice

HCJ 3809/08

HCJ 9995/08

 

Before:

Her Honor, President (Ret.) D. Beinisch

His Honor, President U. Grunis

His Honor, Deputy President E. Rivlin

Her Honor, Justice M. Naor

Her Honor, Justice E. Arbel

Her Honor, Justice E. Hayut

His Honor, Justice H. Melcer

 

 

 

 

The Petitioner

in HCJ 3809/08:

The Association for Civil Rights in Israel

 

 

The Petitioner

in HCJ 9995/08:

The Israel Bar

 

 

AGAINST

 

 

The Respondents in HCJ 3809/08:

1. The Israel Police

2. The Military Police CID

 

3. The Police Internal Investigations Department of the Ministry of Justice

 

4. The Securities Authority

 

5. The Antitrust Authority

 

6. The Israel Tax Authority

 

7. The Minister of Justice

 

8. The Knesset

 

9. Bezeq, The Israel Telecommunications Corp. Ltd

 

10. Pelephone Communications Ltd

 

11. Cellcom Israel Ltd

 

12. Partner Communications Ltd

 

13. MIRS Communications Ltd

 

14. HOT Telecom LP

 

15. Netvision 013 Barak Ltd

 

16. 012 Smile Communications Ltd

 

17. Bezeq International Ltd

 

 

The Respondents in HCJ 9995/08:

1. The Minister of Justice

2. The Israel Police

 

3. The Military Police CID

 

4. The IDF Military Police Internal Investigations Unit

 

5. The Securities Authority

 

6. The Antitrust Authority

 

7. The Israel Tax Authority

 

8. The Knesset

 

 

Amicus Curiae in HCJ 3809/08:

The Press Council

 

 

     

 

Petitions for the award of an order nisi

 

Date of Sessions:

28th Shevat, 5769 (February 22, 2009)

 

23rd Cheshvan, 5770 (November 10, 2009)

 

 

On behalf of the Petitioner in HCJ 3809/08:

Adv. Dori Spivak

 

 

On behalf of the Petitioner in HCJ 9995/08:

Adv. Dan Hay; Adv. Kobi Sade

 

 

On behalf of the First to Seventh Respondents in HCJ 3809/08 and HCJ 9995/08:

Adv. Dana Briskman;

 

 

On behalf of the Eighth Respondent in HCJ 3809/08 and HCJ 9995/08:

Adv. Roxanna Scherman-Lamdan

 

 

On behalf of the Tenth Respondent in HCJ 3809/08:

Adv. Guy Flanter; Adv. Abayansh Tasma

 

 

On behalf of the Eleventh Respondent in HCJ 3809/08:

Adv. Jonathan Hamo; Adv. Asher Doga

 

 

On behalf of the Twelfth Respondent in HCJ 3809/08:

Adv. Amir Vang

 

 

On behalf of the Ninth and Thirteenth to Seventeenth Respondents in HCJ 3809/08:

No appearance

 

 

On behalf of the Press Council (Amicus Curiae):

Adv. Orna Lin; Adv. Vered Kinar

 

 

 

JUDGEMENT

 

President (Ret.) D. Beinisch

 

The petitions, which have been joined, concern the constitutionality of some of the arrangements prescribed in the Criminal Procedure (Powers of Enforcement – Communications Data) Law, 5768-2007 that was published in the Official Gazette on December 27, 2007 and came into effect on June 27, 2008 (hereinafter referred to as “the Communications Data Act” or “the Act”), which permits the Israeli investigatory authorities to obtain communications data of telecommunications subscribers generally, as they are defined in the Communications (Telecommunications and Broadcasting) Act, 5742-1982 (hereinafter referred to as “the Communications Act”).

 

General

 

1.         It is common to say that we are now living in what is called the “information age,” an age in which advanced technology makes it possible to transmit large-scale data in respect of the world around us immediately. Infinite information flows through various media – especially the Internet and the cellular communications related to it – providing a rapid answer to all the issues that concern us in our lives. The general public takes an active and intensive role in the flow of information and it streams data into the information market that affects different strata of the fabric of our lives.

 

As everyone knows, the technological age has not stopped developing merely with the creation of infrastructure for the ongoing transmission of information, and over the years modern technologies have also been created to enable gathering the information that flows in the virtual world and processing and analyzing it according to the different needs of those who have the ability to do so. Combining the ability to transmit information rapidly and the ability to gather it has given various entities – from State authorities, through private corporations to organized crime – a wide variety of tools and abilities they did not previously have.

 

This is also the background to the enactment of the Communications Data Act – the subject matter of the petitions – which resulted from an attempt to regulate how the various State authorities’ powers to obtain communications data on Israel’s residents are exercised in the course of performing their public duties, as well as to regulate how those data are kept by the authorities. This is of particular relevance in terms of how enforcement agencies follow the Act when performing their duties, and it necessitates a balance between the purpose of enforcement and the infringement of individual liberty.

 

2.         The Communications Data Act prescribes arrangements, as detailed below, which enable investigatory authorities – the Israel Police, the Military Police CID, the Military Police Internal Investigations Unit, the Police Internal Investigations Department of the Ministry of Justice, the Securities Authority, the Antitrust Authority and the Israel Tax Authority – to obtain communications data of telecommunications subscribers generally. According to the Act, a telecommunications subscriber is anyone who receives telecommunications service. The Act defines “telecommunications” as “broadcasting, transfer or reception of signs, signals, writing, visual forms, sounds or information by means of wire, wireless, an optical system or other electromagnetic systems.” Therefore, a telecommunications subscriber is anyone who makes use of a telephone, mobile phone or computer for the transfer of messages of any type (conversations, text messages, email and the like.) This means the Act makes it possible to obtain communications data from all the communications companies – the various different cellular and line telephone companies and Internet providers. The communications data covered by the Act include subscriber data, which include the subscriber’s identifying particulars, details of his means of paying for the service, the address where the telecommunications device used by him is installed and more; location data, which include pinpointing the peripheral equipment in the subscriber’s possession; and traffic data, which include details of the type of message transmitted, its duration and scope, identification details of the subscriber who is the source of the message and also the subscriber to whom it is addressed, the time of the message’s transmission and more. The Act clarifies that obtaining those data does not include obtaining the content of the messages transmitted. The ability to obtain the content of communications messages is limited, and it is regulated by the Secret Monitoring Act, 5739-1979 (hereinafter referred to as “the Secret Monitoring Law,”) that is not subject to constitutional review here.

 

In brief, it can be said that the Act regulates three major aspects. The first concerns granting the relevant authorities power to obtain an ex parte order for obtaining communications data. The second is issuing an administrative permit, without filing a motion with a court, to obtain communications data in the cases detailed in the Act. The third is a database set up by the Israel Police to include several sets of data prescribed in the Act.

 

3.         Two similar petitions challenge the Act, focusing on complaints related to those three arrangements (hereinafter “the petitions.”) On April 28, 2008 the Association for Civil Rights in Israel filed a petition in which the Association maintains, in a nutshell, that the arrangements established by the Act to obtain communications data infringe the right to privacy disproportionately, and that the Act, as it is, is therefore unconstitutional. On November 26, 2008 the Israel Bar filed a petition aiming, in a nutshell, to limit the Act’s application to those who have privilege (hereinafter referred to as “professionals,”) such as attorneys and their clients, and also to restrict the ability to use the information collected under the Act as evidence in court proceedings. At a later stage the Press Council joined the first petition as amicus curiae, seeking to emphasize the harm anticipated from implementing the Act on journalists and their work because of the possibility created by some of the Act’s provisions that journalists’ sources would be exposed. With the State’s oral consent, given during a hearing held before us on February 22, 2009, these petitions were heard as if a provisional order had been issued.

 

Discussion

 

4.         The petitioners’ arguments in the petitions are rooted in constitutional law, which are the foundation for the constitutional challenge against the Act. We shall therefore review their arguments according to the process of constitutional review accepted in our jurisprudence; in the first stage we shall review whether the Act does indeed infringe upon a protected constitutional right; in the second stage we shall review whether the Act meets the requirements of the Limitations Clause – whether it is for a proper purpose and whether it meets the criteria of proportionality accepted in our case law. In this latter respect we shall focus the discussion on the three main arrangements that make up the Act, which the petitioners’ arguments mainly target . Alongside this, we shall consider whether the Act overall, given all of its arrangements, meets the criteria of proportionality. After all this we shall consider several other arguments made by the petitioners.

 

Does the Act Infringe a Protected Human Right?

 

The Right to Privacy in the Information Age

 

5.         The petitioners’ central complaint is that the Communications Data Act infringes the constitutional right to privacy. The right to privacy is enshrined in section 7 of Basic Law: Human Dignity and Liberty, which is titled “Privacy” and provides as follows:

 

“(a)     All persons have the right to privacy and to intimacy.

(b)       There shall be no entry into the private premises of a person who has not consented thereto.

(c)       No search shall be conducted on the private premises of a person, or on or in his body or personal effects.

(d)       There shall be no violation of the confidentiality of conversation, or of the writings or records of a person.”

 

In light of the clear, express language of the Basic Law, it appears we need not go into the extensive case law that has elucidated these express statements for the purpose of these petitions. Instead, suffice it for us to refer to the classic definition of the right to privacy, developed by Warren & Brandeis back in 1890, as “the right to be let alone” (S.D. Warren, L.D. Brandeis, The Right to Privacy, 4 Harv L. Rev. 193 (1890)). As was held in the past, the right to privacy “draws a domain in which the individual is left to himself, to develop his ‘self,’ without the involvement of others (and see HCJ 2481/93, Dayan v. The Jerusalem District Commander, IsrSC 48(2) 456, 471 (1994) and the references there,) and as such it is worthy of constitutional protection.

 

Nevertheless, given current reality it would be difficult for us to discuss the right to privacy without giving weight to the complexity of protecting it in the modern age because of the challenges that modern technology poses to the proper protection of the right (Michael Birnhack, The Private Domain: the Right to Privacy between Law and Technology, at 35-36, 44-55, 57-88 (5771) (hereinafter: “Birnhack”); David Brin, The Transparent Society – Will Technology Force Us to Choose between Privacy and Freedom?, at 3-26 (1998)).

 

On one hand, it is clear to everyone that modern technological resources give those with access to them – be they the State or private individuals – numerous very sophisticated tools to penetrate a person’s private domain that used to be considered almost inaccessible: means of surveillance and identification, computerized search methods and organized data collection in electronic databases. On the other hand, at the same time technology also provides tools that make greater protection of privacy possible, enabling the blurring of identity in the virtual domain and the performance of acts in the real world that used to necessitate complete exposure: from economic interactions through to the creation of virtual, interpersonal connections. For us, this complexity means an ambivalent attitude to the adoption of such technologies and their role in protecting the constitutional right to privacy. Moreover, it is not unusual these days to hear arguments that the behavior of individuals in the information age can be regarded as their implied waiver of privacy rights. This is in light of a prima facie informed choice by individuals in society to conduct social, political and economic interaction over the Internet and cellular communications, with clear knowledge of the potential exposure of that information (see further, Birnhack, at 267). It should be noted that only recently the significance of this implied waiver arose in a decision by the United States Supreme Court that came down on January 23, 2012 (United States v. Jones, hereinafter: “Jones,” available at http://www.supremecourt.gov/opinions /11IsrSCf/10-1259.IsrSCf). All these aspects demonstrate to us the complexity of imposing constitutional balances and delineating the boundaries of the right to privacy in the present age. We have borne this complexity in mind when ruling on the petitions.

 

The complexity of positioning the boundaries of protection of privacy is particularly highlighted against the background of the “concern about excess power of the State, which may gather together under its control extensive information about citizens and residents and may abuse such information” (Then Justice A. Grunisin HCJ 8070/98, The Association for Civil Rights in Israel v. The Ministry of Interior, IsrSC 58(4) 842, 856 (2004)). This concern increases as the government gains more sophisticated means, making more extensive infringement of privacy possible. On the other hand, it is also clear that modern technology is a vital, important tool in the hands of the government, a tool that significantly assists the government in performing its duties. In fact, barring the authorities from making reasonable, balanced use of technological tools available to them could significantly impair their ability to perform their law enforcement duties. This is because technological progress and the tools that it develops are not only in the authorities’ possession but are also extensively used by both small and large criminal groups that long ago realized their advantages strongly facilitate their objectives (see also Birnhack, at 175-176). In this technological battle, which continues to be waged, he who lags behind is likely to have the lower hand. It can therefore be said that the authorities must almost certainly keep their hands on the technological pulse and rapidly adopt advanced tools and systems to help them do their work.

 

We considered this complexity in the past in a discussion that was focused on the proper regulation of the laws of search regarding “intruding” into one’s computer:

 

““Needless to say that due to the potential infringement of the individual’s rights when intruding into computer material, such regulation is essential and therefore ought to be completed soon. In the present era, computers have become a prime work tool and means of communication and an almost infinite archive that stores one’s memories, the fruits of his work and his negotiations (as to the potential infringement of one’s rights when intruding into computer material, see Sharon Aharoni-Goldenberg, Hacking into Computer Systems – the Ideal and Actual Scope of the Offense, The David Weiner Book on Criminal Law and Ethics 429 (2009) (hereinafter: ‘Aharoni-Goldenberg’). At the same time, the intensive use of computers also makes them a treasure trove of incriminating evidence and relevant information that can and should be used by investigatory authorities in their battle against lawbreakers and criminals. The complexity and sensitivity of the subject makes it necessary for the Act’s adaptation to technological innovation and the potential harm that follows technology, to be undertaken not only seriously and responsibly but also with due speed” (CrimLA 8873/07, Heinz Israel Ltd v. State of Israel, (unreported, January 2, 2011) para. 17 of the opinion).

 

The statement is also apt herein.

 

The balance between these extremes – the concerns of government’s over-intrusion into the individual’s life, on the one hand due to increased technological capabilities, and the importance of recognizing the advantages that technological resources provide as a means to ensure security and public order, on the other hand – is what lies at the heart of the petitions herein. Making these balances is undoubtedly intricate. In our opinion we shall examine whether the balance the legislature reached in the Act’s arrangements meets the constitutional criteria recognized in our legal system.

 

In this context we would mention that this complexity – which affects the right to privacy in the modern era – is certainly not specific to Israel, and many countries seek to contend with it. As mentioned, as recently as January 23, 2012 the United States Supreme Court decided Jones, which is important to this issue. In that case the question that arose was whether attaching a GPS tracking device to a person’s private vehicle amounted to a search, which is protected by the Fourth Amendment to the United States Constitution. The United States Court unanimously held that the search violated the Constitution and that an appropriate judicial order was therefore necessary. Nevertheless, the Justices were split on the proper criterion for the application of the Fourth Amendment – whether it should be in the context of the doctrine of trespass under common law (the majority opinion) or in the scope of the criterion adopted in Katz v. United States, 389 U.S. 347, namely the “reasonable expectation of privacy” (the minority). The ability of different criteria to adapt to the changing technological environment that makes the physical dimension underlying the search less relevant given the technological surveillance capabilities that the authorities currently possess was, among other things fundamental to the difference in opinions between Justices.

 

6.         We would also mention the important protection of the right to privacy provided by the Protection of Privacy Act, 5741-1981, which preceded the Basic Law and prohibits infringement of privacy. Although the Protection of Privacy Act expressly provides that a security authority is immune from responsibility under that statute, the exemption is limited to “an infringement reasonably committed in the course of their functions and for the purpose of carrying them out” (section 19(b) of that Act.)

 

Infringement of the Right

 

7.         The Act relevant to these petitions makes it possible, as noted, to obtain communications data relating to the conversations between a subscriber and other parties, the type of messages that the subscriber transmits, their scope, duration and more. In fact, as its language additionally reflects, the Act permits obtaining all the information concerning the message transmitted, other than its contents. In addition, the Act allows obtaining extensive information about the subscriber, independently of the message he transmitted – the subscribers’ current location (looking back and to the future), address, the means of payment used to purchase the device in his possession and more. In its general wording the Act allows obtaining communications data about any person involved in an offense, whether he is the victim, suspect or someone else who can lead investigatory entities to a clue. Moreover, though incidentally, the scope of the powers granted by the Act includes the authority to obtain other communications data relating to other individuals who are not necessarily involved in any offense, with whom the person who is involved in the offense has been in touch.

 

On its face, reviewing the powers granted by the Act suffices to reach the conclusion, which even the State does not dispute, that the Act indeed violates the constitutional right to privacy. Clearly, in surveillance of a subscriber, the investigatory authority can observe his habits in using a mobile phone, a computer or the Internet and thereby locate his social network and his activity both during working hours and in leisure time. Even assuming that the surveillance is justified and even if the subscriber is somehow involved in an offense that should be prevented, there is no doubt that his privacy is infringed when his moves are studied in such a way. Clearly, the surveillance of someone, even for the purpose of a criminal investigation, can reveal other details, the knowledge of which constitutes an infringement of the person’s privacy, such as health problems, consumption habits, sexual preferences and the like. The very knowledge of them infringes the person’s privacy after the data is obtained and they certainly have potential to infringe his privacy when they can be used for the purposes of investigation. This is also the case in respect of third parties with whom the individual involved in the offense has any contact. In their petition, the petitioners draw a scenario similar to that described by George Orwell in 1984. Even without finding that we have already reached such a horrifying scenario, there is no doubt that the feeling of surveillance – the knowledge that the investigatory authorities are watchful and can scrutinize anyone, anywhere and at any time – has a disciplining effect on a person’s behavior even in the private domain (Michel Foucault, Discipline and Punish: the Birth of the Prison, 195-228 (1977); Bart Simon, The Return of Panopticism: Supervision, Subjection and the New Surveillance, 3(1) Surveillance and Society 1-20 (2005)). Such being the case, it appears that we can assume that the Communications Data Act does indeed infringe upon the constitutional right to privacy.

 

8.         As to the extent of the Act’s infringement of the right to privacy, the petitioners compare the infringement of privacy caused by the Act and that caused by the Secret Monitoring Act. According to them, the infringement is on a similar scale, which, in the appropriate cases, necessitates a comparison between the various arrangements in the Secret Monitoring Act and the Act relevant to these petitions. The State again emphasized to us that, in its view, the comparison is not appropriate and that the infringement caused by the Communications Data Act is not similar to that caused by the Secret Monitoring Act. Thus, it was explained, for example, that the Communications Data Act does not permit actual listening to conversations or reading written transmitted messages, while the Secret Monitoring Act allows far greater exposure of one’s privacy. According to the State, the infringement caused by the Communications Data Act is more akin to that caused by search warrants and production orders of different types.

 

It seems that the State’s position is accepted in other legal systems. Thus, for example, American legislation distinguishes between four basic categories of electronic surveillance (see the Electronic Communications Privacy Act 1986 (ECPA) established by Chapter 18 of the United States Code (hereinafter: “USC”), the first category, and the greatest infringement of privacy, is secret monitoring (which is regulated by Chapter 1 of the ECPA). The other categories are perceived as constituting lesser infringements of privacy: electronic tracing devices (which in certain respects provide information similar to location data in the Israeli statute) are perceived as infringing privacy less than secret monitoring; obtaining data from communications service providers (similar in part to subscriber data in Israel) is a category whose infringement is even lower (the obtaining of which is regulated by the Stored Communications Act, which is part of the ECPA); and finally what are known in American law as pen/trap taps (electronic surveillance devices that make it possible to obtain data in real time about telephone numbers that have been dialed and received on a particular telephone device) that are defined as the least infringing surveillance category. In this context we would first note that the United States Patriot Act (2001) extended the definition to additionally include data about Internet addresses. Second, American courts are split as to whether permitting the use of these surveillance devices also permits obtaining data on the location of cellular phones (see further: Deborah F. Buckman, Allowable Use of Federal Pen Register and Trap and Trace Device to Trace Cell Phones and Internet Use, 15 ALR Fed. 2d 537 (2006)). This difference in the extent of the infringement is demonstrated in different arrangements formulated in American law for the different categories’ application, which include looser requirements as the infringement caused is mitigated. The same is the case regarding different data that can be obtained from communications providers under the Stored Communications Act mentioned above, which sets different arrangements depending on the type of data sought and distinguishes, for example, between identification data, which can also be obtained through an administrative subpoena (§2703(c)2, Chapter 18 of the USC), and the contents of transmitted messages, which require a search warrant with judicial authorization (§2703(a)(b)). Thus, according to American law’s approach, in light of the relatively limited infringement caused by obtaining data through surveillance devices of the pen/trap taps type, it was held in Smith v. Maryland, 442 US 735, 745 (1979) that individuals have no inherent expectation of privacy in the telephone numbers that they voluntarily dial. Consequently, it was held there that a motion to obtain such data cannot be considered a “search,” as protected by the Fourth Amendment to the Constitution and therefore investigatory authorities need not meet the requirements necessary for obtaining a search warrant. Nevertheless, as stated above, on January 23, 2012, the United States Supreme Court unanimously held in Jones that fitting a GPS tracking device to one’s private motor car and monitoring his movements for 28 days did constitute a “search” that is protected under the Fourth Amendment to the Constitution and therefore did necessitate an appropriate judicial order. English law also draws a similar distinction in protecting content data compared to communications data (see, for example, section 1 the Regulation of Investigatory Powers Act, 2000, c. 23 (Eng.) (hereinafter: “the RIPA,”) which requires an order for obtaining the contents of communications, as opposed to sections 21 to 25 of the same Act that grant powers to numerous authorities to obtain other communications data.)

 

It should be said that the parties’ positions regarding the extent of the infringement upon the right to privacy as a result the Communications Data Act impacted those parties’ positions regarding the Act’s arrangements and their proportionality. We have given consideration to these aspects and reached the overall conclusion that for the purposes of the petition we need not decide whether the infringement of the right to privacy in the Act is greater or less than the infringement of privacy resulting from the Secret Monitoring Act. It should not be overlooked that given modern technology, the State’s position creates a somewhat artificial distinction between content data and data, the obtaining of which the Act permits, because it appears that the differences between them are not so clear (see further Omer Tene, Look at the Pot and See What Is in It: Communications Data and Personal Information in the 21st Century, in Legal Net: Law and Information Technology 287 (Niva Elkin-Koren and Michael Birnhack eds., 2011). However, for the purpose of these petitions we need only find that the Communications Data Act indeed infringes upon the constitutional right to privacy, and we do not consider it necessary to establish strict rules on the relationship between the data obtained under the Secret Monitoring Act and the data obtained under the Act subject to our review.

 

In any event, it is clear that such infringement in itself does not render striking down the Act as unconstitutional. Investigatory powers, like penal powers, for the most part inherently infringe protected human rights. We must therefore analyze – under our accepted constitutional system – whether the infringement of the constitutional right which results from the Act’s implementation meets the requirements of the Limitations Clause of Basic Law: Human Dignity and Liberty. Should it become clear that the infringement meets such requirements, there would be no constitutional reason to strike down the Act.

 

9.         However, before moving on to study the conditions of the Limitations Clause, in view of the petitioners’ pleas, we must also review whether alongside the right to privacy, the Act infringes other protected rights. According to the Israel Bar, In addition the infringement of privacy, the Act does infringe other rights, namely the rights embodied in the professional privileges that have been recognized by statute and case law, including the right to be represented by defense counsel, freedom of the press, freedom of association, free expression, freedom of occupation, freedom of religion and more. Naturally, the Bar devoted most of its arguments to the infringement that the Act causes, as it argues, to attorney-client privilege and to the client’s right to be assisted by an attorney, even when the attorney is not at all involved in the offense.

 

Indeed, as a general rule, it can be said that the infringement of privilege established in statute might infringe the rights the privilege protects. Among other things, as the State also mentions in its reply from January 11, 2009, the infringement of attorney-client privilege might infringe the client’s due process rights. Similarly, infringing the privilege of a journalist’s source might lead to an infringement of the journalist’s freedom of expression. Moreover, infringing the privilege of other professionals presumably impairs – if only to a certain extent – their professional activity. On its face, professionals’ freedom of occupation is thereby also infringed because such infringement erodes their ability to assure their clients’ absolute confidentiality about the very relationship with them, which is an important aspect to many clients, especially when the mere need for the professional is something that the client wishes to conceal, for example need for psychological treatment or support by the social services.

 

Nevertheless, according to the State, the Communications Data Act – which as mentioned, prohibits the transmission of message content – does not infringe upon the various different professional privileges (except in the case of journalists, as discussed below.) This is because obtaining data concerning the very relationship between the privileged person and the professional is not within the scope of the privilege recognized by the Israeli legal system.

 

10.       Courts have reviewed the extent of the various different professional privileges several times in the past and have held that professional privileges essentially extend to the content of the conversations held between the professional and the privileged person but not to the very existence of a relationship with the professional. The purpose of the privilege is to allow the privileged person a realm of free communication between him and the professional. Therefore, it appears that there is merit to the State’s position that, generally, when the statute does not permit obtaining the contents of the conversation it does not infringe upon the protection that the privilege affords to the privileged person. (See also on medical privilege: HCJ 447/72, Dr Bernardo Ismachovitz v. Aharon Baruch, Tel Aviv and Central Investigatory Assessing Officer, IsrSC 27(2) 253, 259 (1973) (Justice Y. Sussman); on attorney-client privilege: MP 227/83, Eliyahu Miron et al v. State of Israel, IsrSC 45(1) 62, 79 (1983) (Judge Z Cohen); MP (TA) 1529/83, Israeli, Yerushalmi, Cohen & Co. v. State of Israel, DCJ 5746(3) 265 (1985), which was upheld in HCJ 301/85, Jacob Israeli v. Israel Levy, Deputy Chief Secretary of the Tel Aviv – Jaffa District Court, IsrSC 40(1) 159 (1986)). See also Gabriel Kling, Ethics in Advocacy 418 (2001). See also in American Law: Baird v. Koerner 279 F. 2d 623 (9th Cir. 1960).

 

It is fitting here to emphasize that professional privilege, including attorney-client privilege, is for the benefit of the client, not the professional, as has already been held:

 

“The privilege in section 90 above is that of the client and is first and foremost designed to guarantee an honest and open relationship between him and the attorney when the latter’s professional services are needed, without the client being concerned or afraid that matters or documents disclosed during the consultation or handling of his case will ever be used against him without his consent” (BAA 17/86, John Doe v. Israel Bar, IsrSC 41(4) 770, 778 (1987), Justice M. Beiski).

 

As for journalists, the situation is slightly different. We have already discussed the importance of free press in many decisions by this Court as well as the difference between journalism and other professions. Thus, in CFH 7325/95, Yedioth Aharonoth et al v. Kraus et al, IsrSC 52(3) 1, 53 (1998) Judge Y. Zamir stated that:

 

“A free press is not only a necessary result of democracy but it is also a necessary condition for democracy. It is a necessary condition for a representative regime, for fair and functioning governance and for human liberty. It can in fact serve as a litmus test for democracy: there is free press, so there is democracy; there is no free press, so there is no democracy. One of the main functions of the press in a democracy is to regularly and effectively criticize and check all the state agencies, and first and foremost the government. To enable the press to perform that function properly, it must be free of supervision or other government involvement.”

 

As the State also agreed, with regard to journalists, the very identity of the person who contacts a journalist can constitute part of journalistic privilege because it may expose the journalist’s source despite the protection given to such sources. This Court, by Justice M. Shamgar, discussed the protection afforded a journalist’s source in the Tzitrin case (MP 298/86 Ben Zion Tzitrin v. The Disciplinary Tribunal of the Israel Bar, Tel Aviv District IsrSC 41(2) 337 (1987)). Justice Shamgar stated there: “protection of sources of information necessary for the performance of a journalist’s function, including protecting the relationship of trust on the basis of which information is given in return for assurance that the source will not be revealed, is therefore a public interest and not the particular interest of the relevant newspaper or journalist” (id., at 358). We shall return to this relevant distinction below when we come to discuss its significance in respect to the various arrangements concerning those who have privilege.

 

To summarize, given the concept of privilege in our legal system, apart from the case of journalists, the petitioners were unable to demonstrate that the Communications Data Act per se infringes the various professional privileges created by statute and case law. To the extent that there is an infringement, it is marginal to the protected right and not at its core, which enjoys broad protection. Consequently, nor have we found it possible to show infringements to other rights intended to be protected by the privilege.

 

Nevertheless, and for the purposes of the discussion here, we are willing to assume the possibility of obtaining communications data about professionals also constitutes a derivative infringement of the right to privacy. Consequently, when analyzing the infringement of the right to privacy as detailed above, it is proper to review it – together with the right’s derivatives by applying the Communications Data Act in light of the Limitations Clause.

 

The Limitations Clause

 

Proper Purpose

 

11.       The purpose of the Act, as put to us by the State, is to give the Police and other investigatory authorities effective tools for the battle against crime in the developing, modern world. According to the State, the dramatic development of the modern world of communications has not passed over criminals, and the media have become a convenient platform to improve the means of communication and commission of crimes. Consequently, enforcement authorities must contend with such capabilities and at the same time improve their own. It was therefore argued that an inability to obtain communications data would place law enforcement authorities at a significant disadvantage compared to criminals, both when it comes to detection and when it comes to gathering the evidence for their prosecution. In addition, the State pleads that the purpose of the Act is to make it possible to deal with urgent situations quickly, for example when a person’s life is on the line or when it is necessary immediately to find offenders who have already committed crimes. According to the State, communications data – and especially pinpointing the telephone – might save lives and significantly help the prosecution of offenders. It appears that at this level there is no dispute between the parties because, as emerges from the petitions, the petitioners also agree that the purpose of the Act is a proper one and in fact they are merely contesting some of the arrangements contained in it (and see para. 23 of the Association for Civil Rights’ petition and para. 22 of the Bar’s petition).

 

We would mention that in addition to these purposes, the State mentions another, which is to regulate the obtaining of communications data which until now, according to it, has been regulated generally and broadly in the scope of section 43 of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 5729-1969 (hereinafter referred to as “the Criminal Procedure Ordinance”) and internal guidelines of the Attorney General. According to the State, the Act is designed to regulate and limit investigatory authorities’ use of communications data in order to reduce the infringement of human rights as much as possible. Clearly this purpose itself is also a proper one. The petitioners do not dispute this, and they also agree that the creation of a complete legal arrangement for obtaining communications data by enforcement authorities is justified (see para. 22 of the Bar’s petition). Indeed, as already mentioned above, it is difficult to conceive these days of law enforcement without monitoring communications data – from locating offenders when they commit offenses, tracking them and making immediate arrangements to stop an offense while it is committed (for more see Birnhack, at 53). It is therefore possible to sum up by saying that the Communications Data Act was legislated for a proper purpose. It is also clear that the Law is not inconsistent with the values of the State of Israel.

 

As such, our main discussion will address the proportionality of the Act and its arrangements. The petitioners themselves concentrated their constitutional arguments on the three basic arrangements relating to the possibility to obtain a judicial order under section 3; the possibility to obtain an administrative order under section 4; and the establishment of a database under section 6. At the same time, the petitioners’ case did not seek the Act’s striking down as a whole, and the Association for Civil Rights even emphasized in its petition that it does not dispute its “constitutionality as a whole”. Our discussion will therefore first focus on reviewing the individual arrangements challenged in the petition. We shall then also briefly discuss the proportionality of the Act as a whole, considering the mechanisms and internal balances in it.

 

The individual arrangements prescribed by the Law, the proportionality of which we shall discuss below, are as follows –

 

(a)       The Arrangements Prescribed in the Law

 

Section 3 – A Judicial Order

 

12.       Section 3 prescribes an arrangement that enables an investigatory authority, as defined by the Act, to obtain communications data by applying to the magistrates court in the jurisdiction where the investigatory unit is located or the offense for which the data sought was committed. Because of the section’s importance, we shall quote it below:

 

“Order to Obtain Communications Data from the Database of a Telecommunications Licensee

3.         (a)       The court may, upon a motion by a police officer authorized by the Inspector General, or by a representative of another investigatory authority (in this section referred to as “the motion”), permit by order the Police or the other investigatory authority to obtain communications data from the database of a telecommunications licensee as prescribed in the order, if it is satisfied it is necessary for any of the purposes specified below, provided that obtaining such communications data does not infringe any person’s privacy beyond that necessary:

                        (1)       To save or to protect human life;

                        (2)       To detect, investigate or prevent offenses;

                        (3)       To detect and prosecute offenders;

                        (4)       To lawfully confiscate property.

           

            (b)       Where the subscriber subject the motion is a professional, the court shall allow communications data to be obtained as provided in subsection (a) only where there are grounds to suspect that the professional is involved in the offense for which the motion is filed.

                       

            (c)       The motion shall be filed in writing, and it shall be supported by a declaration under warning, or by an affidavit.

           

            (d)       All the following shall, inter alia, be stated in the application:

                        (1)       The facts establishing the court’s jurisdiction;

                        (2)       Details of the identity and position of the filing party and the source of his authority to file for an order under this section;

                        (3)       A summary of the facts and information on which the motion is based;

                        (4)       The purposes for which the communications data are needed;

                        (5)       The requested communications data;

                        (6)       The period of time for which the communications data are requested, including the time period preceding the order, and – subject to the provisions at the bottom of subsection (g) – including the time period after the order (in this section referred to as “future communications data”);

                        (7)       Identifying details of the subscriber or the telecommunications installation for which the communications data are requested, if known in advance, including whether the subscriber is a professional covered by professional privilege under any law (in this Act referred to as “professional”); in this paragraph, “law” includes case law;

                        (8)       Details of previous motions to obtain communications data regarding the same person in the same investigation file (in this section referred to as “previous motions”).

 

            (e)       Privileged material, on which the information specified in subsections (d)(3) and (4) is based, shall be made available only for study by the court; the material shall be marked and returned to the moving party after it has been studied.

 

            (f)        (1)       The following shall be attached to the application:

 

                                    (a)       Decisions of the court that heard previous motions;

                                    (b)       Copies of previous motions and transcripts of court hearings on previous motions, to the extent that those were heard by a different court.

                        (2)       Notwithstanding the provisions of paragraph (1), the court may – for special reasons that shall be recorded – hear an urgent motion even without the documents in that paragraph, if it is satisfied that it has the information it needs in order to decide the motion.

 

            (g)       When deciding a motion and when setting the period for which the communications data will be provided, the court shall consider, inter alia, the need to realize the objectives detailed in subsection (a), the extent to which a person’s privacy will be infringed, the severity of the offense, whether the subscriber is a professional and the kind of communications data permitted to obtain under the order. The court may set different periods for obtaining communications data according to the type of communications data it permitted to obtain, provided that the maximum period for obtaining future communications data shall not exceed thirty days from the day of the order.

 

            (h)       All the following shall be specified in an order under this section:

                        (1)       The grounds for making the order, and for an order regarding a subscriber who is a professional – detailed grounds for making the order under such circumstances;

                        (2)       The communications data that may be obtained under the order;

                        (3)       Identifying details of the subscriber or of the telecommunications installation, for which the communications data were requested, if known in advance;

                        (4)       The period of time during which communications data may be obtained under the order;

                        (5)       The date on which the order is issued and the date on which it expires.

 

            (i)        The grounds for issuing the order, as provided in subsection (h)(1), shall not be communicated to the telecommunications licensee to whom the order applies.

 

            (j)        An order issued under this section shall be in effect for thirty days from the day of its issue. 

 

            (k)       The provisions of this section shall not limit the court’s power to grant additional orders in the same investigation.”

 

As can be seen, this comprehensive arrangement was established in primary legislation and it details the procedure of issuing a judicial order granting permission to obtain communications data. According to the arrangement, representatives of the competent authorities may request a communications data order from a court in the cases listed in the section. The particulars of the motion, and the factors that the court ruling on the motion must consider, are detailed and include reference to preventing unnecessary infringement of the right to privacy of the person for whom the order is sought and that of others.

 

13.       The petitioners’ arguments as to this arrangement are essentially twofold. Firstly, they maintain the objectives defined in sections 3(a)(2) and 3(a)(3) are overly broad. The petitioners ask us to read into these sections a restriction whereby the goal of a judicial order under the Act can be the investigation of a particular, specific offense or the detection of an offender who has committed a particular offense, rather  than general intelligence activity to be used by the investigative authorities in their regular work of detecting offenses and offenders. Second, the petitioners assert that applying the arrangement to misdemeanors violates the proper balance between infringing the right to privacy and the proper public interest of preventing dangerous crime, and the section should therefore only be applied to offenses that are a felony.

 

In its reply to the petitioners’ arguments, the State argued generally that the Act, including the arrangement now being discussed, is balanced, detailed, proper and practical, and that it improves, rather than violates, the protection of privacy. This is essentially considering the situation before the Act came into effect, when investigatory authorities could request communications data from communications companies with a court’s order to produce documents issued according to section 43 of the Criminal Procedure Ordinance upon the request of investigatory entities. The State explains that the legislature was aware of the possibility of infringing the right to privacy but, according to it, the current Act includes mechanism to properly protect citizens against disproportionate infringement of their rights. With reference more specifically to the petitioners’ first argument, the State asserted that it did not consider additional conditions to the Act’s sections to be justified. This is because, according to the State, the sections of the Act in any event require demonstrating a concrete suspicion in order to file the motion. Thus the petitioners’ concern about a general motion that involves no suspicion is dispelled. The mandatory reports to the Knesset also limit the petitioners’ concern. We shall consider the petitioners’ arguments in order.

 

The Breadth of the Grounds for Issuing a Judicial Order under Section 3

 

14.       According to the language of sections 3(a)(2) and (3) they do prima facie permit the investigatory authorities to act in the broadest of circumstances. According to those sections, when issuing an order the court may consider general objectives, like detection of offenses or detection of offenders. The acts specified in subsections (1) to (4) do in fact define all the functions of the investigatory authorities, and thus under the language of the Act the court may therefore issue an order to obtain communications data regarding any activity by such authorities. This arrangement meets the first requirement of proportionality because it maintains a rational connection between the objective of preventing crime and detecting and penalizing offenders. Nevertheless, the arrangement does create several difficulties in terms of the second proportionality requirement. In other words, does the arrangement in section 3 of the Act constitute the least restrictive means of those available to the investigatory authority. According to the petitioners, the purpose of the Act can be achieved by taking less restrictive means: exercising the power prescribed in sections 3(a)(2) and 3(a)(3) only in cases where the communications data is requested for detecting a particular offense or a specific offender, as opposed to general intelligence activity for detecting offenses or offenders.

 

15.       According to the petitioners, such a limiting requirement can be read into the Act under the doctrine known (essentially in Canadian law) as “reading in”. This doctrine seeks to read into the statute under judicial review a provision that will cure its unconstitutionality (on “reading in” see: Aharon Barak, Interpretation in Law, Part Three – Constitutional Interpretation 763 (5754), hereinafter: “Interpretation in Law”, HCJ 8300/02, Gadban Nasser v. Government of Israel (unpublished, May 22, 2012 (hereinafter: “Nasser”) paras. 55-60). It should first be said that the use of this tool is not the appropriate way to limit the arrangements in the Act as the petitioners seek. The use that is generally made of this doctrine has sought, in the name of the principle of equality, to apply the statute under review to categories the legislature omitted, reading new categories into the statute, all within the legislative purpose. This was done, for example, in HCJ 721/24, El Al Israel Airlines Ltd v. Jonathan Danilevitz, IsrSC 48(5) 749 (1994) (hereinafter: “Danilevitz”), when a new category – same-sex couples – was introduced into the beneficial collective agreement (and see Danilevitz, p. 764-67 and sources there; Interpretation in Law, Id.; see also s, para. 60). Our case is different. In the circumstances of the Act, we are not faced with a question of preferring certain categories to categories to which the Act, according to its plain language, does not apply, and we have no interest in infringing equality. Even the petitioners do not indicate such infringement. We therefore do not believe the doctrine of “reading in”, with all its implications, should be applied in the present circumstances. At this time, when the Act is before us at first instance, we must make use of the inherent tools at the Court’s disposal – interpretation of the statute from within it and according to its language. This is how we must interpret the arrangement in section 3 of the Act because, as we previously held, so long as the potential infringement involved in the provision of the statute can be limited by interpretation, the interpretive move should be advanced, thereby exercising constitutional review according to the Limitations Clause (and see CrimA 6659/06, John Doe v. State of Israel (unpublished, June 11, 2008) hereinafter: “the Unlawful Combatants case”, para 7).

 

As we know, the Court’s interpretative work is done according to the limitations obliged by the language and purpose of the statute, in addition to presumptions of interpretation accepted in our legal system which the interpreter may utilize (the Unlawful Combatants case; HCJ 9098/01, Genis v. Ministry of Construction and Housing, IsrSC 59(4) 241 (2004) (hereinafter: “Genis”). As the point of departure in the work of interpretation the Court will, so far as possible, seek to avoid striking a statute enacted by the Knesset in deference to the legislature and the separation of powers that stands at the centre of the Israeli legal system. The Court will therefore often prefer to leave the statute as it is, applying an interpretation that is adaptable it to the constitutional system and fundamental values. Accordingly, we shall seek to adopt an interpretation of the text that leads to the least infringement of human rights. As we said, for example, in the Unlawful Combatants case:

 

“Our legal system presumes the legislature has knowledge of the contents and effects of the Basic Laws and every statute enacted after them. According to the presumption, a statutory provision is reviewed in an attempt to interpret it so as to befit the protection extended to human rights by the Basic Law. This achieves the presumption of normative harmony, according to which ‘a discrepancy between legal norms is not presumed and every possible attempt is made to maintain ‘legal uniformity’ and harmony between various norms’ (A. Barak, Interpretation in Law – the General Doctrine of Interpretation (1992), 155).  … An effort of interpretation should be made in order, as much as possible, to reduce infringement on liberty so that it be proportional for the purpose of achieving security and no more. Such interpretation will be consistent with the basic philosophy prevailing in our legal system, that a statute ought to be implemented by interpretive means and as much as possible striking it down for unconstitutionality must be avoided” (id, para. 7).

 

And in HCJ 4562/92, Zandberg v. The Broadcasting Authority, IsrSC 50(2) 793, 812 (1996) President A. Barak stated:

 

“It is better to achieve limits on a statute by interpretation rather than having to limit it by declaring part of the statute void for violating provisions of a Basic Law… A reasonable interpretation of a statute is preferable to finding it unconstitutional.”

 

According to our said philosophy, based on the assumption that the legislature intends to limit infringement on human rights as much as possible, and especially the human rights enshrined in and protected by Basic Laws, there might be cases where, in order to achieve the purpose of the text and avoid striking it down, it is justified to interpret it more narrowly so that it will not apply, for example, to a particular category of circumstances.

 

President A. Barak’s statement is apt here:

 

“May the commentator limit the broad language of the text in order to achieve the purpose of the text? When the text prescribes a legal arrangement that applies to ‘everyone’ with respect to ‘everything’ in ‘all circumstances’, may the interpreter – who seeks to achieve the underlying purpose of the text – interpret the text so it does not apply to a particular category of persons (not ‘every’ one,) does not apply to a particular category of things (not ‘every’ thing,) and does not apply to a particular category of circumstances (not ‘all’ circumstances)? The answer to this question in Israel and also in comparative law is in the affirmative. I considered this in the Zandberg case, stating: ‘When the language of the statute is broad, the judge may and can give it a narrow meaning, extending to only some of the options emerging from the language, provided that he thereby achieves the purpose of the enactment. That is the case in Israel. That is the case in comparative law…

 

            … Indeed, in order to achieve the underlying purpose of the statute – be it a specific or general purpose – the interpreter may give the broad language of the statute a narrow meaning” (Genis, p 37).

 

From the General to the Specific – the Interpretation of Section 3

 

16.       Hence, it appears that under the circumstances here the petitioners’ application can be considered in terms of interpretation, as a request for narrow interpretation that would limit investigatory authorities’ ability to rely on general objectives for the purpose of orders to obtain communications data. To that end, we must, to use Justice M. Cheshin’s metaphor, “peel the statute as one peels the integuments of an onion: healthy ones are kept and unhealthy ones discarded” (Genis, at 268). The “unhealthy integuments” are those cases where the investigatory authority might have applied to court for an order to obtain communications data for achieving general objectives. Although according to the language of the Law – and its language alone – there is no bar, on its face, to doing so, it does appear that in light of constitutional interpretation, consistent with the language and purpose of the Act, the investigatory authority is not authorized to act in that way and must apply for orders only in cases where the order is necessary for detecting a particular offender or for investigating or preventing a particular offense that is anticipated or being committed. This conclusion is consistent with the particular stated purpose of the Act, which concerns combating crime and the detecting and punishing of offenders, while limiting the use of the broad tool embodied in section 43 of the Criminal Procedure Ordinance. This conclusion is consistent with the general purpose of the Act, which calls for limiting the infringement on the constitutional right to privacy so that it is proportional in achieving the purpose of the Act (see also Genis, at 291-93, the Unlawful Combatants case, para. 8). This interpretation is consistent with the fundamental concepts of our legal system and brings about a proper balance between leaving the Act as it is and achieving the goals of Basic Law: Human Dignity and Liberty.

 

As mentioned, this is indeed the position of the State as well. In its notice of May 22, 2008 the State agreed to this narrow interpretation. According to the State, the language of the Act clearly indicates its drafters intended to permit issuing orders in order to obtain communications data only where necessary to inquire into a concrete suspicion rather than for gathering general intelligence. The State clarifies that, in its opinion, too, in requesting an order investigatory authorities must at least “indicate a clue, the first stage of a prima facie evidential foundation for police action relating to a concrete investigation,” consistent with the relief the Association for Civil Rights seeks in its petition (para. 52 of the State’s notice). Then chairman of the Knesset’s Constitution, Law and Justice Committee expressed a similar position (hereinafter: “the Constitution Committee”) in the discussions around the Regulations for the Act’s implementation. Thus, then chairman of the Constitution Committee, Prof. Menachem Ben Sasson, stated during the discussion held on August 13, 2008: “This Act must be elucidated narrowly. That is to say that where there is doubt, the answer is ‘no’. I am not saying that as an interpreter of the Act but it cannot be interpreted otherwise and anyone participating in the discussions knows it…” (Transcript of meeting no. 639 of the Constitution, Law and Justice Committee of the 17th Knesset, 5 (August 13, 2008)). This limit on investigatory authorities’ discretion, which is accepted by the State, also finds expression in the Police procedure that regulates Police action under the Act, which is none other than procedure 03.344.306 that was formulated after the Act came into effect and when the petitions were pending (hereinafter: “the procedure”). As for section 3, the procedure adds little to what the Act requires given the procedure in section 3 is very detailed. Thus, the procedure specifies, lifted directly from the Act’s language, the details that any request for an order must included, as well as the considerations the officer seeking the order must apply. Those considerations are, inter alia, the severity of the offense and the strength of the suspicion, and the evidential foundation as to the request’s subject matter. By following this, the Police activity in terms of these orders complies with the proper interpretation as established by us above.

 

It should be emphasized that our above interpretation of section 3 is not based on the State’s concession as to the proper interpretation of the section or of other sections the petitioners have challenged.  Nor is it based on the existence of the Police procedure. The State’s concession or action may change as they are a product of the State’s policy alone. Nevertheless, under the circumstances here, that concession also reflects the proper interpretation that, in our opinion, should guide how the authorities exercise their powers. This interpretation is consistent with the language of the text and its purpose (both particular and general), and it permits the arrangement prescribed in section 3 to subsist as a proportional arrangement that does not over-infringe the constitutional right to privacy. Indeed, it might perhaps have been preferable to amend the Act itself so that it embodies the approach – shared by the State, the petitioners and the Court – with regard to the narrow implementation of section 3’s broad provisions. Nevertheless, interpretation is a tool at the Court’s disposal and it enables us to clarify the boundaries of the Act, even if the actual language of the Act remains unchanged. We would go on to say that in the scope of our interpretive work of identifying the legislative intent we may be assisted by information the executive authority holds (see: Aharon Barak, Interpretation in Law, Part Two – Legislative Interpretation 346 (5753) (hereinafter: “Legislative Interpretation”). Thus, the procedure demonstrates the Act’s legislative intent as viewed by the executive authority and that the interpretation it adopted is consistent with the interpretation that we have prescribed above. This joins with the other facts that have led us to conclude this is indeed the proper interpretation of the Act under review.

 

We have therefore reached the overall conclusion that the proper constitutional interpretation of sections 3(a)(2) and of 3(a)(3) of the Communications Data Act is that investigatory authorities are empowered to request a court for an order under the Act only for the purpose of detecting concrete offenders or offenses rather than for general intelligence activity as to offenders or offenses. This interpretation achieves the second requirement of proportionality because, in our opinion, it constitutes a means that less restricts the right to privacy, while still achieving the purpose of the Act in the same way. This conclusion is also required by the State’s concession to a narrow interpretation, which indicates that in its opinion the objectives for which the Act was passed will not be hindered by that narrow interpretation.

 

Given this interpretation, we have reached the overall conclusion that the arrangement in section 3 also meets the third requirement of proportionality because the extent of the infringement on the right to privacy – in the manner described – is in proper proportion to the benefit from applying the Act and its arrangements, a benefit which the petitioners themselves do not dispute.

 

17.       A similar approach, that relates to the necessary balance between the right’s infringement and the benefit to public interest characterizes parallel legislation in legal systems similar to ours, which have articulated various grounds for obtaining communications data – some more extensive than the grounds under Israeli law and some closer to the grounds included in it. Some countries have made the concrete nature of the offense or offender requirement clear as opposed to general aspects of law enforcement, and others have not. This reinforces our conclusion that in terms of the grounds for exercising authorities under the Act, and given the proper interpretation for their exercise, as delineated above, this aspect of the Israeli Act complies with the requirements of proportionality and is consistent with the constitutional concepts prevailing in legal systems that are similar to ours.

 

In English law, for example, the RIPA, mentioned above, regulates powers to obtain communications data in an arrangement that sets the various surveillance powers State authorities have, both to obtain the content of information and to obtain communications data without content. The Chapter that addresses the grounds for requesting communications data, regulated in section 22(2) of the RIPA, is relevant here. It details a very broad list of grounds for when communications data can be obtained. Not all the grounds make it possible to obtain all types of data and in any event obtaining them is subject to proportionality. The grounds are defined in the English Act as follows:

 

(a) in the interests of national security;

(b) for the purpose of preventing or detecting crime or of preventing disorder;

(c) in the interests of the economic well-being of the United Kingdom;

(d) in the interests of public safety;

(e) for the purpose of protecting public health;

(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department;

(g) for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health; or

(h) for any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State”.

 

From the above it is clear that the list of grounds in English law is far broader than those recognized in the Act subject to the petitions here. In American law as well, the accepted criterion for placing surveillance devices of the pen/trap device type – which require a judicial order – is relatively broad and examines whether the required data are “relevant to an ongoing criminal investigation” (18 USC §3123(a)(1) which is the ECPA, mentioned above). Reviewing section 2703(d), which addresses the conditions necessary for granting a judicial order to obtain communications data (which are similar to subscriber data and some of the traffic data in the Israeli Act), and also regulates the possibility of obtaining message content, a higher bar emerges, which is supplemented by the condition that the party requesting the order must indicate “specific and articulate facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation”. On its face, the American standard does not limit the nature and gravity of the investigation but it does appear that, like in the Israeli Act as we described above, it is necessary that the information is sought for a concrete investigation. Canadian law, on the other hand, permits granting a judicial order when only two requirements are fulfilled – other means of investigation cannot be used (or they have been attempted and failed); and the order “would be in the best interests of the administration of justice” (see the Criminal Code of Canada, §186(1)(a)), namely in circumstances where granting the order will best serve justice.

 

Application of the Arrangement in Section 3 to Offenses of the Misdemeanor Type

 

18.       As mentioned, the petitioners’ second argument is that the Act as a whole – and section 3 in particular – should be applied to offenses that are defined by the Israeli Penal Law as “felonies” but not to those defined as “misdemeanors”. As this argument goes, and reiterated in both petitions as well as in the position of the Press Council, offenses of the “misdemeanor” type extend over a wide range, a substantial proportion of which are not sufficiently serious to justify the infringing measures in the Act. Consequently, according to the argument, granting sweeping power in the Act to obtain a judicial order for all misdemeanors, without drawing lines based on the seriousness of the offense, is sweeping and not proportional. In support of this argument, the petitioners referred to the Secret Monitoring Act, which restricts the exercise of the power prescribed in it to felonies.

 

The State for its part does not believe that the petitioners’ arguments in this regard justify amending the Act, let alone striking it down . In its introduction, the State explains that many misdemeanors are serious, very common offenses that affect the quality and integrity of life in the country. Thus, for example, the State mentioned that these offenses include assault, fraud, forgery, breach of trust, computer hacking, sexual harassment, harassment by telecommunications device, obstruction of justice, witness harassment, giving information to the enemy, threats, negligent homicide and more. Serious misdemeanors are included in the Military Justice Act as well. The State therefore asserted that granting the relief sought and precluding investigatory authorities from obtaining communications data for misdemeanors would significantly impair their ability to perform their duties. Additionally, the State explained that there are misdemeanors that cannot be investigated without communications data, such as sexual harassment by a computer or telephone. The State also reiterated its position that the infringement caused by obtaining communications data is far reduced compared to that caused by other investigatory means, including secret monitoring. Therefore, according to the State, there is no justification for imposing a limitation based on the gravity of the offense, as prescribed in the Secret Monitoring Act. After all that, the State again emphasized that the Act prescribes many mechanisms intended to prevent its improper exercise, including for misdemeanors that do not justify it – from the detailed mechanism for submitting motions, through a court’s role in authorizations, to the mechanism for reviewing the Act’s implementation through reports to the Knesset and the Attorney General.

 

19.       The Penal Law, 5737-1977 (hereinafter: “the Penal Law”) prescribes in its definitions section that a misdemeanor is:

 

“An offense punishable by no less than three months’ imprisonment, but no more than three years imprisonment; and if the penalty is a fine – a fine higher than the fine that may be imposed for an offense punishable by fine the amount of which has not been determined ”.

 

            This definition applies to many of the offenses on the Israeli law books and it means that investigatory authorities’ powers under the Communications Data Act cover a wide range of offenses, the severity of which varies. Consequently, the petitioners’ argument that a sweeping application of section 3, without requiring authorities to consider the gravity of the offense, could indicate a disproportionate infringement on the right to privacy is understandable. In view of this, we somewhat hesitated as to whether it is indeed justified to leave misdemeanors to the sweeping application of section 3 or whether in this case as well the section should be narrowly interpreted so that only when particularly serious misdemeanors are concerned or where communications data is an inherent element of the offense (for example computer hacking) will it be possible to request the court for such an order.

 

            Ultimately, we reached the overall conclusion that this aspect does not warrant our intervention and that this arrangement meets the requirements of proportionality. To be specific, regarding the first requirement of proportionality, there is no question that there is a rational relationship between the means and the end because including misdemeanors would significantly help the Police achieve legislative intent and it would appear that their blanket removal would likely impair that ability. Nevertheless, as mentioned, here again the second requirement of proportionality raises difficulties because on its face, limiting the types of misdemeanor to which the arrangement applies similarly achieves the end but nevertheless reduces the infringement on the right to privacy. The position of the State in this respect is based on the nature of requests under section 3. According to the State, there is no justification for making a formal distinction between different types of misdemeanors for the purpose of applying the Act and the focus should be on the need for the request. To that end, according to the State, the Act establishes balances and checks that do not consider obtaining communications data as trivial but present a detailed mechanism for submitting the request. Moreover, as mentioned, these requests are submitted merely for the court’s approval and the court must review all the relevant aspects, including whether obtaining the data in order to detect the concrete offense infringes the right to privacy beyond that necessary. Again, the array of reports to the Knesset and the Attorney General should ensure that the arrangement is only used when appropriate.

 

Under the circumstances, it appears to us that the mechanisms in the Act – and especially the motion’s judicial review – may certainly provide at this time an adequate resolution for the petitioners’ concern as to the arrangement’s improper use. It should be added that according to the reports that were submitted to the Knesset in 2009 and 2010 as to the implementation, 60% to 70% of the motions for a judicial order were made and approved regarding felonies. As regards misdemeanors for which a judicial order was sought, it appears that between July 2009 and June 2010, a substantial proportion of the offenses would apparently have been considered by the petitioners, too, as “serious offenses”, including threats, theft, negligent homicide, harassment, arson, killing, vandalism, causing damage and more. These data indicate, on their face, that in the implementation of section 3 in terms of misdemeanors is not treated lightly and the data above certainly do not demonstrate the alleged disproportionality resulting from including misdemeanors under the section. Under the circumstances, and considering the restraint that we exercise in intervening in legislation, we have not found it justified for us to intervene in this determination by the legislature. Nevertheless, there is no doubt that the courts that grant the various motions are tasked with considerable work – to ensure the Communications Data Act is used solely in the cases where it is necessary according to the interpretation adopted above. In this respect it is clear that courts would have to analyze whether the nature of the offenses for which the orders are sought necessitate exercising the powers granted by the Act in light of the privacy infringements they cause. Courts would also have to consider the possibility that the extent of infringement by one type of data might be greater than another.

 

Apt in this respect is the Canadian Supreme Court’s ruling in R. v. Araujo [2000] 2 SCR 992, Par. 29, which our courts should also apply as a point of departure when considering various different motions to obtain data under the Act:

 

            “The authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests.

 

The judge should not view himself or herself as a mere rubber stamp… The authorizing judge should grant the authorization only as far as need is demonstrated by the material submitted by the applicant. The judge should remember that the citizens of his country must be protected against unwanted fishing expeditions by the state and its law enforcement agencies.”

 

As stated there, judges are duty-bound to safeguard the Act and the protection of privacy, and they must bear in mind that the State’s citizens should be protected against a fishing expedition conducted by law enforcement agencies.

 

Assuming that this power will be exercised only when appropriate, we believe that the arrangement that covers misdemeanours also meets the third criterion of proportionality because the infringement to privacy caused by its application is in proper proportion to the benefit from exercising the authorities the Acts grants.  

 

20.       It appears, regarding the types of offense that justify obtaining communications data, different legal systems have adopted different arrangements that are essentially based on the same principles. Thus, for example, it seems the American legislature did not see fit to limit the power to obtain data along the “ordinary” track – by judicial order under chapter 18 of the USC – to a particular type of offense. In English law, too, there is no such restriction and the grounds permitting obtaining communications data are, as mentioned, broader. It should nevertheless be noted that English law does define “serious crime”, but solely in the context of obtaining content data. According to the definition, a serious crime is one that carries, for an adult without relevant previous convictions, an expected sentence of at least three years imprisonment. It is also a crime committed in collusion, a crime committed with the use of violence or a crime leading to substantial financial gain. Hence, it appears that the English legislature also prescribed a threshold for the definition of a “serious crime” that does not make do with defining the offense according to the likely penalty for it, but also takes into account the circumstances in which it is committed. This substantive view with regard to the offense and its gravity is similar to the State of Israel’s position regarding cases in which it could be appropriate to act according to the arrangement in section 3. On the other hand, Canadian law, which regulates the issue through the Canadian Criminal Code, details a very extensive list of various offenses defined as serious. The Canadian list includes more than 100 offenses (see section 183 of the Criminal Code). Hence, we again see that different countries have prescribed different arrangements as to the types of offenses resulted in requests for obtaining communications data. We can infer from this that it is at least possible to articulate several means that achieve the purpose in the same way and it clearly cannot be said that the Israeli arrangement goes beyond those applied in countries with a similar constitutional regime. The arrangement therefore does not exceed the bounds of proportionality so that they justify the Court’s intervention.

 

21.       Consequently, regarding section 3, we have reached the overall conclusion that subject to our interpretation of above observations, the arrangement in section 3 meets the requirement of proportionality and we have therefore not found there is constitutional grounds for our intervention.

 

Section 4 – Administrative Order

 

22.       Section 4 of the Act prescribes a different arrangement that does not condition obtaining communications data upon a judicial order. Instead it allows investigatory authorities to obtain communications data in urgent cases through an order from a professional entity (hereinafter: “the administrative arrangement”). The language of the section is as follows:

 

“Permit to Obtain Communications Data in Urgent Cases

 

4.         (a)         A competent officer may – at the request of a policeman or military policeman, as the case may be – grant a permit to obtain communications data from a telecommunications licensee’s database without a court order under section 3, if he is satisfied that, in order to prevent an offense that is a felony, to detect its perpetrator or to save human life, it is necessary to obtain the said communications data without delay and that an order under section 3 cannot be obtained in time.”

 

            According to the petitioners, the arrangement in section 4 is disproportionate because it permits an administrative – rather than judicial – entity to issue an order that enables a serious infringement of privacy without the restrictions imposed on courts by section 3, especially in terms of professionals. The petitioners, who are also joined by the Press Council in this respect, focus their arguments on the following two. Their first argument is that the investigatory authorities’ power to obtain the communications data of professionals, especially journalists and attorneys, by administrative order is not proportionate. This is essentially because that power is not subject to restrictions similar to those the Act imposes on communications data orders regarding professionals because section 4 – unlike section 3 – does not refer at all to the aspects relating to obtaining an order in urgent cases when professionals are involved. According to the argument, enabling an administrative entity to infringe legal privilege without a judicial order is not proportionate. These arguments were presented to us by the entities that represent such professionals. As metioned, the Israel Bar filed a petition addressing the alleged damage to lawyers’ occupation because this compromises attorney-client privilege. The Press Council joined the general petition as amicus curiae and presented its arguments as to the likely damage to journalists’ occupation caused by section 4, in light of the potential exposure of journalists’ sources. The Press Council applied to the Court for the principal relief of an order striking down section 4 in terms of journalists so that a motion for obtaining communications data of journalists would be only allowed under the mechanism set in section 3(b) of the Act, namely by a judicial order alone, and only if there are grounds to suspect the journalist is involved in an offense. The other argument against the arrangement in section 4 made during the hearing concerned the method of implementing the arrangement and its alleged excessive use. In this context it was also argued that judicial and administrative review of investigatory authorities’ exercise of their powers under the arrangement is deficient.

 

23.       The State asserted in response that the benefit of this arrangement exceeds the infringement of the right to privacy caused by obtaining communications data urgently without a judicial order. According to the State, the need to save lives or immediately detect offenders at the crime scene does, in urgent cases, justify forgoing judicial review facilitated by a court procedure as provided in section 3 addressing the population as a whole, without having to make a specific distinction in the case of professionals. As appears from the State’s reply “the urgent cases which section 4 addresses are extreme… in cases of saving life, in urgent cases of solving a crime when the professional is the victim of a felony or is missing and must be found urgently, where it is necessary to obtain the professional’s communications data in order to prevent a felony of which he is suspected and other urgent cases of similar nature” (see para. 61 of the State’s reply of May 22, 2008). Moreover, the State asserted that the urgent arrangement is applied sparingly and limitedly according to relevant Police procedures. As discussed, on February 16, 2009 the State furnished for our review the Police procedure that regulates the Act’s application, formulated after the Act came into effect. The procedure is based on section 4(f) of the Act, which provides that “the Inspector General … shall ... prescribe provisions for the purpose of this section, including how the permit is granted … and may prescribe different provisions according to the grounds for granting the permit and the circumstances in which it is granted.” The procedure emphasizes and clarifies the Act and limits the competent officer’s discretion in two significant respects. Thus, in terms of the factors the competent officer must consider before authorizing obtaining communications data without a judicial order, the procedure replicates the factors the officer must consider before applying for a judicial order. It then adds other factors as to the existence of an urgent need to prevent an offense, to detect its perpetrator, or to save human life. These factors also include the type of communications data sought, the severity of the offense and the extent of the damage to those who are not suspects.

 

            As to professionals, the procedure distinguishes between journalists and others referenced in the procedure: lawyers, doctors, social workers, clergymen, psychologists, government ministers and Knesset member. In regard to urgently obtaining professionals’ communications data, the procedure mandates that: “if the subscriber is a professional, that should be specifically taken into account and the necessary balance should be made between the possibility of infringing the professional’s privilege and the benefit that the communications data might have in the specific investigation, factoring in the seriousness of the offense, the circumstances of its commission, the likelihood the communications data will indeed lead to discovering the truth and detecting the offenders” (para. 7B(4) of the procedure). Regarding journalists the procedure lays down a narrower arrangement, providing that “insofar as it is known that the subscriber is a journalist, who is neither suspected of the offense nor the victim, the competent officer shall not authorize obtaining their communications data or the traffic data type (a list of incoming and outgoing calls).” This distinction is inter alia based on the State’s position, as detailed above, according to which, but for journalists, in the absence of power to obtain the content of calls the Communications Data Act does not infringe the various different professional privileges. Nevertheless, the State agrees the different privileges in the context of making a decision to grant an administrative order must be considered, and this is within the competent officer’s discretion. According to this set of balances, the State believes that under the circumstances the arrangement is proper and proportional.

 

(a)     Is the Arrangement Prescribed in Section 4 Proportional?

 

24.       On the face of it, it is clear that the arrangement in section 4 is narrower than that prescribed in section 3. Thus, it applies only to offenses of the felony type and it is plain from its wording – and the State also elucidated the same in its reply – that it applies in concrete cases in which there is an urgent need to prevent an offense, detect a perpetrator or save human life. Our interpretive finding, that the provisions of the Act do not grant power to obtain an order in circumstances where the order is sought for general intelligence activity detecting offenses, therefore also applies to section 4. That is indeed the proper interpretation of the section. Moreover, section 4 permits only the Police or the Military Police CID, and no other investigatory authorities, to obtain communications data urgently, and it is effective only for 24 hours.

 

            Nevertheless, the arrangement extends the power of investigatory authorities to obtain communications data without a judicial order. Thus, for example, until the Act became effective, the investigatory authorities followed the Attorney General’s Directive 4.210 (90.013) (The Delivery of Information by Telephone Companies to Entities Having Investigatory Authority), which provides that without a judicial order communications data (other than the name, address or telephone number of the subscriber) cannot be obtained, unless the defense of necessity applies in the particular case. This threshold, which required immediate, urgent danger that justifies obtaining communications data, has been lowered in the current arrangement. Moreover, the arrangement lacks section 3’s restrictions to discretion, particularly the restriction on transferring professionals’ communications data. According to this arrangement, as set in the Act, it is prima facie possible to transfer a professional’s communications data without any restriction when authorized by a competent officer, who is satisfied there is an urgent need to do so. These restrictions, albeit not in full, do appear in the Police procedure that regulates both the competent officer’s discretion to authorize administrative permits and the obtaining of professionals’ communications data.

 

            The petitioners’ arguments in this context reflect both aspects. The first aspect is at the level of the administrative discretion. In this respect the petitioners argued that restrictions in addition to those specifically mentioned in section 4 should be imposed on how the administrative discretion is exercised. The other aspect, according to the argument, concerns the Act’s actual infringement on the various different privileges.

 

25.       The point of departure necessary for reviewing the proportionality of the arrangement is based on our above finding that, in general – apart from in the case of journalists – the Communications Data Act does not infringe the various different professional privileges. This is considering the scope and extent of those privileges as recognized by Israeli law, compared to the data that can be obtained by applying the Act’s arrangements. In the absence of such infringement, prima facie it cannot be said that because section 4 does not refer to professionals per se it must be struck down for unconstitutionality. This is reinforced especially because the purposes of sections 3 and 4 are not the same. While section 3 is intended to enable obtaining communications data in the cases detailed in the section, which by their nature give the authorities adequate time to turn to a court, section 4 is designed to give the Israel Police and the Military Police CID a tool for cases where there is an urgent need, that cannot be delayed, to obtain the data without approaching a court. This distinction between the purpose of the sections can on its face also justify a distinction regarding professionals so that where there is urgent need, for example in life-threatening cases or because of the gravity of the matter, the weight attributed to protecting their privacy would be diminished. For such cases, it is difficult to say that the mere absence of an express provision of the Act relating to professionals amounts to a constitutional flaw that justifies our intervention.

 

26.       Nevertheless, despite the arrangements’ different purposes, we cannot help but wonder why the legislature saw fit to set out such a detailed arrangement in section 3, which delineates how the discretion of administrative authorities and courts dealing with applications to obtain data must be exercised, while in section 4, which concerns only how administrative authorities’ discretion must be exercised, there is no similar detail whatsoever. We have not been satisfied, nor has it been pleaded to us, that there is any particular difficulty in establishing more detailed guiding criteria in section 4 as well, to give proper weight to its different purpose. Thus, for example, in the case of professionals, section 3 provides that “the court shall not permit obtaining communications data… unless it is satisfied, on the basis of clear details to such effect in the motion, that there are grounds to suspect that the professional is involved in the offense for which the motion was filed.” As aforesaid, in view of the difference between the arrangements, we have not found that the legislature was required to prescribe identical arrangements. Nevertheless, along the lines of the legislature’s provision in section 3, it would be proper, while exercising power section 4 of the Act grants, that the authority considered that the subscriber is a professional and decides whether it is appropriate to obtain communications data in such case considering the proper balance between the privacy infringement and the urgent need to obtain the data. The considerations should also include the reservations required by the fact that the details sought involve professionals who have a special interest in not disclosing the data. In this context the authority clearly could also consider whether it is appropriate to order obtaining communications data even where the professional is not involved in the offense.

 

            The Act’s language certainly does not limit such an interpretation regarding how the power granted by section 4 of the Act must be exercised. It is also consistent with the particular purpose of the arrangement because it does not preclude the issue of an appropriate order in urgent situations in terms of anyone, depending on the competent authority’s needs. It is also such as to create internal harmony between the Act’s sections by attaching greater weight to the duty to consider the right to privacy when professionals are involved, along the lines of the legislature’s own determination in section 3. In addition, this interpretation achieves the general legislative intent because it gives greater weight to the constitutional right to privacy. This interpretation thereby constitutes the least restrictive means, while achieving the arrangement’s legislative intent in a similar way. Consequently, it appears to us that this interpretation is the proper one regarding how the authority should exercise its power under section 4.

 

            It should be noted that this is in fact apt not only as to professionals, but also as to the overall aspects emerging from section 3 and the restrictions on judicial discretion that the legislature mandated in it and which should of course also guide the administrative authority when exercising its power under the arrangement in section 4. In fact, the restrictions section 3 imposes can be viewed as part of the overall relevant considerations that must come into account when exercising the powers granted by the Act, in light of the arrangements’ different purposes. This aspect in fact mirrors the axiom of administrative law that an authority must exercise its power while weighing all relevant factors and ignore improper factors (Daphne Barak-Erez, Administrative Law vol. II 642 (5770); HCJ 953/87, Poraz v. Shlomo Lahat, Mayor of Tel Aviv – Jaffa, IsrSC 42(2) 309, 324 (1988)). Thus, for example, alongside the special reference to professionals that we have discussed at length, it appears that before deciding to permit obtaining communications data, the type of communications data sought, the extent of the infringement to anyone not suspected, the gravity of the offense, the urgency and the ability to take the judicial track under section 3, and which option should be given first preference are, among others, the factors to be considered. Let there be no doubt that in light of the differences in circumstances around implementing the arrangements, the authority need not attribute similar weight to each of these considerations, and the decision should be made in light of the particular circumstances of the case. Nevertheless, it does appear exercising the power under section 4 is subject to particularly strict review of all the above factors.

 

27.       It appears the State, too, accepts this approach as to how the power under section 4 must be exercised in terms of professionals – and generally. Thus, it asserts in its reply that the administrative arrangement in section 4 was essentially designed to be used in extreme cases where the professional is the victim of an offense or suspected of a felony, or in extreme cases of saving life. Given that, it appears that the State also believes that the difference between the restrictions imposed by the arrangement in section 3 and those imposed on the party seeking to obtain data under section 4 is not so great. Bear in mind that the petitioners’ basic argument is that section 4 is disproportional because it does not prescribe conditions similar to those in section 3 of the Act. Consequently, given to the proper interpretation which requires exercising discretion in a way that considers all the factors necessitating obtaining communications data, and in light of the State’s position as to how that principle should apply, it appears the argument regarding section 4’s disproportionality fails.

 

            As discussed, the administrative arrangement’s purpose – saving human life, preventing serious crimes of the felony type or quickly detecting an offender who has committed a felony – is achieved through this tool, which prevents having to approach a court and awaiting a judicial order. This tool is of course restricted and clearly should only be used where “the main road” – seeking a judicial order under section 3 – cannot be followed. Thus it appears there is a rational connection between the means and the end and that the arrangement would only be implemented where the end cannot be achieved by other means. This is where the very court proceeding makes the Police unable to obtain communications data “in real time”, in very urgent cases that necessitate doing so. Even when approaching a court can be done as quickly as possible, the same speed as when a competent officer who is always accessible and whose authority to obtain communications data immediate, is impossible. The State’s examples as to the cases where this procedure is used demonstrate this. At the same time, it also appears the Police acknowledges the potential privacy infringement the administrative procedure causes and the proper interpretation as to the exercise of the power as found here, which also appears to be accepted by the State, therefore further limiting the competent officer’s discretion. These restrictions, and paying strict attention to applying the administrative process only in serious, urgent cases, in our opinion reflects a proper balance between infringing the right to privacy and the need for Police immediate action.

 

            This approach as to how the power granted by section 4 should be exercised is also reflected in the Police procedure, which, according to the Police, achieves the proper balance between infringing privacy and the purpose of obtaining the order under section 4. Regarding professionals, and how we believe the power must be exercised, the procedure emphasizes the importance of safeguarding their privacy and the privacy of their clients, and it requires the competent officer to carefully examine the need for administrative order, considering the gravity of the offense, the circumstances of its commission, and the likelihood that communications data would indeed result in detecting the truth and discovering offenders. Nevertheless, the procedure does not apply all the restrictions prescribed in section 3 and does not limit the use of administrative order for professionals solely to cases where they are involved in an offense – except in the case of journalists. As mentioned, in our opinion, the purpose of the arrangement in section 4 is not the same as that of section 3 and the arrangements therefore need not be identical. This difference is, as noted, found in how some aspects of section 4 are narrow compared to section 3. As mentioned, including restrictions in the procedure does not demonstrate their proper interpretation as to the exercise of the power in section 4. However, the procedure does express the authority’s position in this respect and this is coupled with the overall factors leading to the conclusion that our above interpretation is the proper one.

 

            In light of all the above and the legislative intent behind section 4, recognizing the importance of cases where an urgent need can justify infringing professional privilege, and considering the limited infringement of privilege obtaining the data that the Act permits causes in any event, it appears to us that the arrangement in section 4, as written, given its proper interpretation, which requires considering the issue of professional privilege and other aspects as mentioned, does not require additional legislative restriction over the authority’s power in this context. This arrangement, which appears in the Police procedure too, therefore expresses in our opinion the proper equilibrium between protecting the right to privacy and the sometimes urgent need to obtain communications data, and as such we have found that it meets the criteria of proportionality.

 

28.       As we have mentioned above, and as noted that the State agrees with this approach, different treatment of the journalist’s privilege is appropriate. The State was therefore correct in prescribing special conditions for journalists in the procedure. As mentioned, according to the procedure, if the subscriber is a journalist who is neither suspected nor the victim of the offense, the competent officer will not authorize obtaining communications data of the traffic data type. In this way the journalist’s privilege has special protection in the procedure. Nevertheless, in cases in which the journalist’s life is at risk or in which the journalist is himself suspected of offenses – and it should be borne in mind that only offenses of the felony type are relevant – and in exceptional circumstances when because of their urgency it is impossible to approach a court to obtain a judicial order, it is indeed appropriate to permit obtaining a journalist’s communications data, even if this might be at the cost of infringing a source’s privilege. In such circumstances we do not believe there is any foundation to the argument that infringing the journalist’s privilege is disproportional. Here again it should be borne in mind that the procedure reflects how the authority interprets the Act in terms of journalists. As said above, through our interpretive work, the interpreter may refer – amongst the other sources available to him in understanding the legislative intent and its proper interpretation – to the information in the possession of the executive authority, as revealed by its secondary legislation (see Legislative Interpretation 346, 800-802). This information does not of course obligate the court insofar that it believes there is a more proper interpretation for the statute. But it can help in making the interpretation and ascertaining the purpose of the legislation (see HCJ 142/89, Tnuat Laor v. The Chairman of the Knesset, IsrSC 44(3) 529, 550 (1990)). In the instant case it appears that although there is no relevant secondary legislation and the procedure has inferior normative standing, the procedure indicates that the executive sees the purpose of the Act and the interpretation it adopted for it is consistent with the interpretation we stated above. In the circumstances, it appears the proper interpretation is the one the State follows and thus, too, it ought to be adopted.

 

29.       To complete the picture, we would mention that English law has an arrangement similar to that emerging from the Israeli procedure. There, the different treatment of professionals in gathering communications data is also regulated in a procedure, rather than a statute (Interception of Communications: Code of Practice (London, 2002)). There, too, sections 3.2 and 3.9 of the procedure provide that when permitting access to the communications data of anyone not directly linked to the data sought, the utmost care must be taken, especially where the information infringes legally recognized privilege or the data is personal, which by its nature is generally kept private or confidential. Section 3.2 of the procedure provides as follows:

 

“Confidential Information

      

3.2       Particular consideration should also be given in cases where the subject of the interception might reasonably assume a high degree of privacy, or where confidential information is involved. Confidential information consists of matters subject to legal privilege, confidential personal information or confidential journalistic material…

 

For example, extra consideration should be given where interception might involve communications between a minister of religion and an individual relating to the latter’s spiritual welfare, or where matters of medical or journalistic confidentiality or legal privilege may be involved”.

 

            Nevertheless, the statute and procedure there do not prohibit transferring data despite these privileges (even for journalistic privilege). Transferring such data is subject to the doctrine of proportionality, which as an overarching principle covers all the arrangements in the statute (see section 5 of the procedure). In this respect it should be noted that the English procedure was approved by Parliament. Again, Canadian law, in which the treatment of communications data is regulated by the Criminal Code, permits access to the communications data of practicing lawyers through a judicial order but only in circumstances where the lawyer himself is involved in the investigated offense or is likely to be its victim (section 186 of the Canadian Criminal Code). The Canadian arrangement is thereby similar to that prescribed in section 3 of the Israeli Law and also to a large extent, as in the interpretation adopted by us, to the way in which the arrangement in section 4 is applied to professionals.

 

30.       As mentioned, we were not originally satisfied in light of the specific purpose of section 4 and the limited potential infringement of privilege of most professionals caused by obtaining the data the Act permits, the section’s lack of specific reference to professionals does not indicate a lack of proportionality. A fortiori the same is the case in view of the section’s proper interpretation as to cases where section 4, whose arrangement is also acceptable to the State, should be applied. As noted, we have looked at journalists somewhat differently but it does appear the special treatment to the procedure affords journalists does in fact express the proper interpretation of section 4 in their regard. In view of all this, we have reached the overall conclusion that the arrangement is proportional and properly balances the purposes of the Act and the infringement to the right to privacy. Here again, like our process of interpreting section 3, we view the Police procedure and the restrictions imposed by it as reflecting the Act’s proper interpretation. This interpretation is consistent, as said, with the Act’s language and achieves its purposes. This interpretation is also consistent with the basic concepts of our legal system and our duty to exercise judicial restraint in intervening in the Knesset’s legislation. We have therefore considered it proper to adopt it  (compare: HCJ 1911/03, The Association for Civil Rights v. The Minister of Finance, (unpublished, November 12, 2003)).

 

            We would mention that we have not ignored the petitioners’ claim that the State could change the procedure or even revoke it completely. We have also considered the petitioners’ assertion that the procedure cannot “cure” a constitutional flaw in the Act, insofar as such flaw exists. Nevertheless, in view of our finding that section 4’s proper interpretation and its detailed reflection in the procedure the State presented, we do not believe that there is cause for us to intervene in the statutory arrangement as it is written. Naturally, a change in the authority’s conduct could also lead to a material change in the balance embodied in the Act. Such a change would give rise to new cause to challenge the Act, certainly at the administrative level and perhaps even the constitutional level. However we must not get ahead of ourselves and we can only assume that the administrative arrangement will be implemented according to the proper interpretation – sparingly, in extreme cases, for the purpose of dealing with offenses that necessitate so and only where urgency makes it clear that it would be impossible to obtain a court order under section 3. This is when the reasons for not approaching a court are circumstances relating to saving life or other serious circumstances, all considering a variety of factors, including the fact that the subscriber is a professional, the extent of his involvement in the offense, and the type of data sought, etc.

 

            It should nevertheless be noted, to complete the picture, that the other legally empowered authorities have not produced procedures to us that are similar to the Police procedure concerning the way they exercise these powers. The Military Police CID has a duty to prescribe such procedures under section 4(f) of the Act. In light of our findings as to the proper interpretation of how the Act’s powers must be exercised, and its compliance with the principles delineated in the Police procedure, we assume that the other authorities that operate under the Act will not exercise their statutory powers without applying similar criteria for exercising the authorities in the Act and formulating appropriate criteria to regulate those aspects.

 

(b)       The Act’s Practical Application

 

31.       In the time when the petitions were pending, the petitioners added to their case another claim essentially concerning the implementation of the Act in the years before it came into effect. At the heart of this argument was the petitioners’ concern that the investigatory authorities would exploit the powers granted by the Act where they could employ other less restrictive means. To support these arguments, the petitioners analyzed the data produced by the State about the extent of the Act’s use, which according to them demonstrate that the powers the Act has granted hare overused. Although the petitioners sought to establish constitutional cause to strike down the Act, it appears the argument is ultimately on an administrative law level, and challenges upon whom powers conferred by the Act are exercised. The petitioners therefore sought to show a flaw in the authorities’ discretion in implementing the Act or at least to express concern in how the discretion will in the future be exercised.

 

32.       From the material before us, it does indeed appear the petitioners are not the only ones concerned about the extent to which the powers the Act grants are exercised. The Constitutional Committee, which debated a motion to approve regulations of the database under section 6 of the Act, also expressed similar concern to the Police. This emerges, for example, from studying the transcripts of the proceedings of the Constitution, Law and Justice Committee dated August 13 and November 9, 2008, during which then chair of the Committee, Professor Menachem Ben Sasson, expressed his opinion that the Act should be interpreted narrowly. Concern was also expressed that the Police might use its powers under the Act excessively. The Constitution Committee of the current Knesset, headed by MK David Rotem, which met on February 2, 2010 in order to follow up the Act’s implementation, also emphasized the importance of correctly and cautiously using the tools the Act provides.

 

            The petitioners, for their part, used the concerns the Constitution Committee expressed on August 13, 2008 to support their position on the use of the Act’s powers and asserted these concerns demonstrate that the Israel Police contravened Act’s provisions. The State, in its replies, explained that the concerns raised in the Constitution Committee’s 2008 debates were essentially about mishaps resulting from the fact that the Act’s implementation was in its early days. Additionally, the State strongly rejected the petitioners’ arguments that the Police contravened the Act’s provisions.

 

            As to the actual use figures, the State presented us with very little data, which related solely to the use of section 4 of the Act (an administrative order) from its effect date (in June 2008) until the end of 2008. Those data shows that a total of 546 permits were sought in cases of life-saving, 85 in the prevention of future felonies and 124 permits were to detect perpetrators of felonies that had already been committed.

 

Nevertheless, studying the Constitution Committee’s portal on the Knesset website shows that to date various authorities have submitted two annual reports to the Committee according to the Act (available at http://www.knesset.gov.il/huka/FollowUpLaw_2.asp). The first report, filed by the Israel Police, is relevant to the period between June 27, 2008 and June 30, 2009. This report shows that 9,603 motions were filed and granted under section 3 of the Act (a judicial order). Of them, 9,227 were motions for detection and investigation of offenders, 252 were for saving of human life, and 124 were for seizure of property. The breakdown between felonies and misdemeanors is unclear. Nevertheless, a supplement submitted to the chair of the Constitution Committee on February 1, 2010, shows that as in 2009, more than 60% of the total offenses for which an order was sought were felonies. On the other hand, the Police’s second report, which was relevant to the period between July 1, 2009 and June 30, 2010, reveals that 14,133 motions were filed under section 3, namely an increase of about 4,500 (or approximately 50%). Of the motions filed in that period, 13,946 were for the purpose of detecting offenders and investigating offenses, 185 for the purpose of saving human life and two for seizure of property. Of the total offenses for which the order was sought, 71% were felonies.

 

            According to section 4 the Act (an administrative order) the first report reflects that 2,031 urgent permits were sought. 1,513 were for the purpose of saving human life and 518 for the purpose of preventing a felony and detecting the perpetrator of an offense. The second report reflects that under this section 3,039 applications were made, namely an increase of about 1,000 (a rise of approximately 50%). 2,192 were for saving human life and 847 were for preventing a felony and detecting a perpetrator. Data were not produced as to the orders sought for professionals. Hence, it appears that there was a significant increase in the Israel Police’s use of the Act.

 

            As regards the Military Police CID, The first report indicates that between November 1, 2008 and November 3, 2009, 1,381 motions for orders in under section 3 were filed, the majority for detecting and preventing offenses, conducting investigations, detecting offenders and their prosecution. The second report that was furnished by the Military Police CID relates to a shorter period from January 1, 2010 to July 1, 2010, and it indicates that 703 motions were filed to obtain orders under section 3. These included 38 motions for the purpose of saving or protecting human life, 340 for detecting, investigating or preventing offenses, 325 for detecting and prosecuting offenders and none for seizing property. It appears that on average there was no change in the total motions the Military Police CID filed under section 3.

 

            In respect to motions under section 4, it seems that on average there was some  increase in their number. While the first report states that 58 administrative requests were approved, including 6 cases for urgent policing, 4 cases for urgent investigatory purposes to prevent a crime and in 48 cases for the purpose of saving human life, the second report (relating, as mentioned, to only seven months) stated that 44 requests were filed, in six cases for urgent investigatory purposes to prevent an offense, 37 cases for saving human life and 1 for urgent policing purposes.

 

Reports were also received from the other authorities granted powers under section 3 of the Act. The data of the Tax Authority shows that between July 2008 and July 2009, 146 motions were filed under section 3, of which 145 were approved. Between July 2009 and June 2010 the number of motions doubled to 318. The Police Internal Investigations Department filed 388 motions between June 2008 and June 2009. The Police Internal Investigations Department filed 406 motions between June 1, 2009 and May 31, 2010. 44% of the motions were for felonies and 56% related to misdemeanors. The Antitrust Authority filed motions for 4 orders in the period between June 27, 2008 and June 16, 2010. Until June 2009 the Securities Authority obtained 13 orders; between July 2009 and June 2010 it obtained 12 orders, including 3 relating to people with professional privilege. Between June 2010 and June 2011, 19 orders were issued, including 2 relating to people with professional privilege.

 

33.       All the above figures reveal only a partial picture. On the one hand, it appears, prima facie, that some authorities, especially the Israel Police, have significantly increased their use of their powers under the Law – both section 3 and section 4. On the other hand, we have no explanation as to the change in the total use of the Act’s powers, which could actually be justified. In any event, in the current circumstances we do not see it necessary to review these aspects further. This is first because in practice all the petitioners’ arguments in this respect concern aspects of the Act’s implementation which do not, certainly not directly, go to the matter of its constitutionality. We have indeed already held in several contexts that implementing an administrative act can raise the question of its proportionality (HCJ 9593/84, Rashad Murad v. The Commander of the IDF Forces in Judaea and Samaria (unpublished, June 26, 2006); HCJ 9961/03, The Centre for the Protection of the Individual Founded by Dr. Lotte Salzberger v. The Government of Israel (unpublished, April 5, 2011)). We have also held that the implementation of a statute can impact its meeting the proportionality criteria (HCJ 6427/02, The Movement for Quality Government in Israel v. The Knesset IsrSC 61(1) 619 (2006), HCJ 6298/07, Yehuda Ressler v. The Israel Knesset (unpublished, February 21, 2012) paras. 19-22 of my opinion). Nevertheless, it appears that at the moment no justification has yet emerged for our intervention in this context. This is essentially based on the fact that the statute charges the Attorney General and the Israel Knesset with the task of reviewing the Act’s implementation. Their work in this respect is merely beginning. Nevertheless, from the material presented to us and the Israel Knesset’s position as reflected in its arguments, it appears on its face that the Knesset is acting according to its duties, and that it is aware of the concern of excessive use of, or extending, the powers under the Act to improper cases. Therefore we believe that for the time being various authorities should be permitted to do their work with the tools at their disposal. This should be coupled with the fact that our findings and the proper interpretation for the Act’s implementation would certainly help to maintain the proportionality of the authorities’ action under the Act and thus, too, all the authorities – both those that operate under the Act and those responsible for reviewing its implementation – should be permitted to create an accepted best practice routine according to the boundaries and restrictions we outlined. Under these circumstances, at the moment it is inappropriate for us to intervene in the aspects of the Act’s implementation. Hopefully there will be no need for us to consider them in the future either. Nonetheless, we have not overlooked the fact that the duty to report to the Knesset as prescribed in the Act was established as a temporary provision that is in effect only for four years from the date the Act took effect (see section 14(c) of the Act). It appears to us that because of the difficulties associated with the Act’s growing pains, which even the State does not dispute, the period of time necessary for assimilating the principles binding the authorities and the importance we attributed to the Knesset’s consistent review, it is appropriate to take action in order to extend the effect of that section. It could even be made permanent. We would also reiterate that it should not be ignored that aspects of a statute’s implementation might also affect review of its proportionality, and that the concern that the tools the Act granted be used excessively, especially given the significant increase in the number of motions filed, is real. Consequently, if in the future there is a change in the balance between the Act’s use, we do not discount the possibility the petitioners or others would once more be able to approach the Court for relief.

 

Sections 6 and 7; the Database

 

34.       Another argument by the petitioners challenges the arrangement in sections 6 and 7 of the Act, which establishes a database to be kept by the investigatory authorities (hereinafter: “the database”). These sections provide as follows:

 

“Requirement to Transfer an Information File from the Database of a Telecommunications Licensee

 

6.         (a)         The head of the Investigations and Intelligence Division may require a telecommunications license holder providing domestic landlines or mobile radio telephone services to transmit to him by computerized methods an up-to-date information file, as specified in paragraphs (1) and (2) below, which is in the licensee’s database:

 

                          (1)     Its subscriber’s identifying details, as well as the identifying numbers of his telephone devices or of any components thereof;

 

                          (2)     Information on the map of antennas which the licensee uses to provide telecommunication services by mobile radio telephone, including identifying data of each antenna and the areas it covers.

 

Keeping Information Files in a Protected Database

 

7.         (a)         An information file transferred as provided in section 6 shall be kept by the Police in a confidential database (to in this Act referred as ‘database of (communications) identification data’).

 

(b)       The database of (communications) identification data shall be kept as to ensure its protection and prevents its unauthorised use, including reading, transmitting, copying or altering the information without lawful authorization, and prevents its use in violation of this Act; acts performed in the database of (communications) identification data shall be documented as to facilitate supervision and control.

 

(c)       The database of (communications) identification data shall only be used for the purposes specified in paragraphs (1) to (4) of section 3(a)”.

 

            This reveals that the Act enables the Israel Police to require a telecommunications licensee, as defined, to transfer to it subscribers’ computerised identification data and the identifying numbers of their telephone devices (or of any components thereof). The Act also facilitates requiring information about antennas the licensee uses in providing telecommunications services. In effect, the Act permits the Police to establish a database linking one’s name with their telephone number and eliminates the need to telephone 144 service (which provides one’s telephone number according to their name or address) or the 441 service (which provides one’s name and address according to their telephone number). That said, information is kept in a confidential database and the use of that data is limited, according to section 7(c), to purposes that also warrant a judicial order, namely: saving or protecting human life, detecting, investigating and preventing offenses, detecting offenders and prosecuting them, and seizing property under the Act. It should be noted that the database does not permit keeping any data that the Israel Police is authorized to obtain under the Act. That is, it may not keep location and traffic data.

 

            We would say that on December 19, 2008, under his authority according to section 7(d) of the Act and with the Constitution Committee’s approval, the Minister of Internal Security promulgated the Criminal Procedure (Powers of Enforcement – Communications Data) (Database of Communications Identification Data) Regulations, 5769-2008 (hereinafter: “the Regulations”). These are designed to regulate the use of the database, define those authorized to access it, guide the position of database manager, and other aspects concerning its operation and maintenance and the security of the information it stores.

 

35.       The petitioners, and especially the Association for Civil Rights, do not object to the transmission of publically accessible telephone numbers to the Israel Police and other police entities. Their objection to the identification database is more specific and they request we restrict the ability to transmit identification data of anyone whose telephone number is unlisted to the database. They argue that the constitutional right to privacy, which includes the right to keep one’s “conversation confidential”, also includes the right to own a telephone number that is hidden from the public eye and the investigatory authorities. Although the petitioners do not dismiss the possibility that criminal activity will be conducted under “cover” of unlisted numbers, they maintain it is always possible to approach a court. They claim it is unnecessary to establish a database that is always open to investigatory authorities without having to obtain a court’s approval for unlisted numbers. The petitioners in fact focuses on the risk of establishing a database that includes unlisted numbers accessible to any policeman or other person who works for the investigatory authority, and on the concern about information “leaking” from the database to others – inside or outside the investigatory authority – who would use the information improperly.

 

36.       In response the State maintains first that the right to “confidential conversation” does not include the right to an unlisted telephone number, which is merely a technical possibility provided by the telephone companies as a contractual matter between them and customers. Furthermore, the state argues that even were the right to an unlisted telephone number recognized, such right does not exist vis-à-vis the investigatory and law enforcement authorities, and presumably no reasonable person really expects this to be the case. At the practical level, the State argues that even now calls made from unlisted telephone numbers to the Police call centers are not confidential to these centers. The State further warns that excluding unlisted numbers from the database that is accessible to the investigatory authorities would create a means for criminals, who wish to use unlisted numbers in criminal activity, to hide from the eyes of the Police. As to the purpose of establishing the database, the State explained that the arrangement is designed to limit the time necessary to trace a particular telephone number’s owner.  Without the arrangement embodied in the Act, investigatory authorities would have to reach out to the communications companies about any number in order to obtain the subscriber’s identification details.

 

37.       We do no see fit to accept the petitioners’ request to restrict the use of the database. We accept the State’s argument that a communication company’s commitment to the customer to provide an unlisted number does not entitle the customer to confidentiality from law enforcement authorities. Moreover, it should be borne in mind that the interpretation of the database’s use – like the use of the judicial arrangement – is narrow and restricts the investigatory authorities’ action to specific cases only, when the information in the database is required to prevent a particular crime, trace a particular offender, save or protect human life or seize property under the Act in concrete circumstances (and see section 7(c) of the Act, which refers to sections 3(a)(1) to (4)). As analyzed above, it appears that, given the Israeli constitutional system, it is improper to interpret the Act to permit using the database for Police intelligence activity generally or for infrastructure. Given this presumption, we do not consider it justified t limit the actual transmission of particular numbers to the database to enable those who wish to conceal themselves from the eyes of law enforcement authorities to do so. Consequently, the petitioners’ argument should be dismissed.

 

            As obiter dictum, we briefly refer to a new argument by the Association for Civil Rights (hereinafter: “the Association”) in its supplemental brief from November 16, 2008, which was not raised in the actual petition. As the argument goes, the Act’s infringement is aggravated due to the Police’s capability to obtain communications data automatically, without needing the communications companies’ authority, by connecting online to the cellular and Internet companies’ computers. According to the Association, section 13(b) of the Communications Act hints at this capability. The section enables the Prime Minister to prescribe security arrangements for transmitting data between security forces – including the Israel Police – and the communications companies. The Association relies on the fact that the General Security Service already uses such capability, and as support it presents the respondents’ answer in AP 890/07, The Movement for Freedom of Information v. The Ministry of Communications (unpublished, November 5, 2007). The respondents there explained there are indeed secret security appendices that regulate transmission of communications data from communications companies to the General Security Service. Nevertheless, the respondents there explained that those appendices do not regulate the General Security Service’s powers to obtain communications data but only the technical means to obtain them and that the powers to obtain the data are subject to the substantive law regulating them. In response, the State explained here that independently from how the data are transmitted – be it online in real time or by a specific motion – the accessible data would only be those permitted by the Act and its arrangements. It was further explained that the question about the technological way the data is transmitted is in any event of no constitutional significance. We have not found the Association’s argument, which was made partially and unsatisfactorily, to constitutionally justify striking down the Act. In any event, the concern the Association raised in its argument relates to the improper use of access to the data, which is facilitated through online access to the data, rather than to actually permitting access, which is restricted, as mentioned, by the Act, with the narrow interpretation that our opinion applies to them. Clearly, should the petitioners believe that the way the data are actually transferred demonstrates the Act’s implementation beyond the proper criteria outlined or should the petitioners find evidence of improper use of the means granted to the investigatory authorities, they may take the appropriate steps.

 

(b)       The Proportionality of the Law As a Whole

 

38.       We have therefore reached the conclusion that the arrangements in the Act, including the judicial arrangement, the administrative arrangement and the keeping of unlisted numbers in the database, do meet the requirements of the Limitations Clause and do not establish cause for constitutional intervention. In addition, we would further say that an overall review of the Act and all the arrangements and balances in it also leads to the conclusion that no cause for our intervention has been established.

 

            First, as stated in paragraph 25 of our opinion, the administrative arrangement in section 4 concerns only grave, urgent cases. Accordingly, the legislature has left the majority of the investigatory authorities’ actions under the Act to address by a court through the judicial arrangement. Such a balance, insofar as actually implemented according to the obligatory criteria, ensures judicial review of the majority of cases in which investigatory authorities infringe privacy by exercising powers under the Act. As discussed, the judicial authority has a weighty responsibility to insist on limited and appropriate use of the powers granted by the Act. But as discussed, the very existence of judicial review of the main procedure for obtaining data under the Act indicates its proportionality.

 

            It should be noted that the fact that “the usual course” is that which passes through the courts and that it is not self-evident that only in urgent, exceptional cases will the administrative course be used. Thus, for example, in the English law that deals with obtaining communications data, this distinction between emergencies and the ordinary course does not exist, and investigatory authorities can in all cases act through the administrative course without needing a judicial order (sections 25(1) and (2) of the RIPA). In particularly serious emergencies the authority may even act without written authorization at all – even administrative – and oral authorization is sufficient (as provided in the Regulations – section 3.56). On the other hand, the outlook of American law is closer to Israeli law and it lays down an administrative, alongside a judicial, course. As detailed above, the administrative course, which is regulated in §2703(c)2, Chapter 18 of the USC, enables the investigatory authority to obtain various types of communications data without judicial involvement. In this connection, by means of an administrative order, it is possible to obtain the subscriber’s name, address, calls documentation, means of payment and others. Beyond the data that can be obtained under this section, a judicial order is necessary (the American law distinguishes between two types of orders). It should nevertheless be noted that insofar as our examination has revealed, it appears that American law sometimes recognizes the ability to be relieved of the primary duty to approach a court and in urgent cases permits administrative orders. When the investigatory authority seeks to use surveillance devices that enable obtaining real time data of outgoing and incoming calls from an Internet or telephone communications source (pen registers/trap and trace devices), American law recognizes exceptional cases where a judicial order may be bypassed and an administrative order suffices: a risk to a person’s life or serious injury; acts suspected as organized crime; an immediate threat to a national security interest; or an attack on a protected computer. An administrative order issued according to this arrangement is only valid for 48 hours, after which the investigatory authority must request a judge’s approval again or stop using it (§3125(a) of Chapter 18 of the USC). Canadian law, too, reflects a similar approach to that of Israeli law. It provides that the usual course for obtaining communications data is by approaching a judge (sections 184 to 186 of the Canadian Criminal Code), while the administrative course is defined in Canada as an option that is available to the investigatory authorities only in rare emergencies.

 

            Second, the Law grants different powers to different investigatory authorities and delineates their use in a way that contributes to its proportionality. Thus, while all investigatory authorities addressed by the Act – the Israel Police, the Military Police CID, the Police Internal Investigations Department of the Ministry of Justice, the Securities Authority, the Antitrust Authority and the Israel Tax Authority – are authorized to use the judicial arrangement and approach a court for an order to obtain communications data, only the Police and the Military Police CID have been empowered to follow the administrative arrangement. This distinction acknowledges that alongside the importance of enabling the other investigatory authorities to perform their duties in the best way, the most “infringing” powers are to be granted to a limited group of authorities that are used to dealing with urgent cases, whose potential need of those powers is greater. In our opinion this substantially limits the potential infringement of the right to privacy.

 

            Again in this respect, the Act’s proportionality may be inferred by reviewing similar arrangements in corresponding legal systems. Thus, English law’s list of the authorities empowered to use the arrangements for access to communications data is not exhaustive. Instead, several investigatory entities are explicitly named, like the Police, the National Criminal Intelligence Service, the National Crime Unit, the Customs Authority, the Inland Revenue and also the intelligence services – and the Home Secretary is also empowered to go on to prescribe additional agencies for the purposes of the Act (see section 25 of the RIPA). It appears the powers the English law grants the various different authorities are broader than those recognized in the Communications Data Act, especially in light of the ability of the agencies mentioned to obtain communications data merely by using the administrative course, without needing a judicial order.

 

            Third, the Act’s proportionality also depends on the review to which it subjects its proper, limited implementation. This check is prescribed in section 14 regarding the Act’s general use and in sections 4(d) and (e) regarding the use of an administrative order. Section 14 mandates that the Minister responsible for the relevant investigatory authority must report to the Knesset Constitution Committee as to the use the investigatory authority for which he is responsible made of the Act, including the database. Sections 4(d) and (e) respectively provide that the competent officer who has authorized the administrative arrangement must report the order in writing; and that once every three months the head of the Israel Police Investigations and Intelligence Branch and the Commander of the Military Police CID must submit the data collected from the competent officers to the Attorney General or the Military Advocate General, as the case may be. This review is far more frequent than the review conducted by the Knesset. We would also mention that, presumably, in the course of the Attorney General’s periodic review, there will be consideration for, inter alia, reviewing the circumstances in which communications data has been obtained under section 4 and to whether it might have been possible in those circumstances to act under section 3 and obtain an appropriate judicial order.

 

            These mechanisms for review, coupled with the court’s approval of motions pursuant to section 3, make it possible to control the Act’s actual implementation and ensure the investigatory authorities limited use of the tools the Act provided them, according to the criteria detailed in our decision. Their existence makes it possible to assume that the Act’s implementation would be periodically reviewed and that problems arising in such respect, as reflected from the discussion in paragraphs 31-33, will be dealt with in the best possible way. That this control is maintained and that the supervisory entities – the Attorney General and the Constitution Committee – examine in detail the reports received and the authorities’ compliance with the guidelines deriving from our interpretation of the Act, as expressed by us above, must be guaranteed. It should be borne in mind that the Attorney General holds a special role in strictly ensuring that government authorities exercise their powers under the Act merely to the extent necessary in order to achieve its purposes, according to our interpretation in this decision and the criteria outlined in it.

 

39.       We acknowledge that a statute under review is not reviewed in a vacuum. As we have shown, the existence of the Police procedure, which should be read together with the Act, affects our perception of its implementation and the view that investigatory authorities would only use it properly and intelligently. Thus, the overall arrangements contained in it display a balanced and proportional picture of the exercise of powers it grants. In addition, the other means available to the authorities – which also infringe privacy – have an effect on our perception of the Act. As said, these means now include the capability to listen to one’s conversations, which are regulated and limited under the Secret Monitoring Law, and the ability to obtain information by implementing section 43 of the Criminal Procedure Ordinance. This means the Police, in fighting crime, has various resources that, to some extent, infringe privacy. The relevant Act joins those resources and apparently specifically within its scope the State has come a long way towards safeguarding the constitutional right to privacy. Given the restrictions detailed above we can see it as a means that does not infringe the systemic balance between the need to fight crime effectively and maintain public order, on the one hand, and the right to privacy and dignity to which everyone is entitled, on the other hand. It is to be expected that by adding more tools in the future to be available to investigatory authorities, the legislature will maintain the internal balance of each tool as well as the systemic balance, considering all the existing resources recognized by law.

 

            In this context we would also mention that the comparison with various arrangements the world’s countries have adopted must not be made in a vacuum either; rather, how the means for obtaining communications data are integrated into the general legal system should be analyzed. Thus, for example, countries where the ability to collect communications data in particular crimes is limited – like Canada and England (partially), which limit the list of offenses in different ways – at the same time make extensive access to communications data available. Thus, English law does not require authorization by a judge in order to collect communications data, and Canadian law makes obtaining communications data possible when demonstrating a vague, general cause. The comparison with different systems and their approach to the means for collecting communications data, as adduced above in the relevant contexts, leads to conclude that even were different countries to choose different balances, the balance in the Act under review is not unreasonable compared to the balances adopted in countries with similar legal systems to Israel’s, and which contend with similar challenges regarding technology, their battle against crime and in protecting privacy.

 

            In view of all the above, we have reached the overall conclusion that the Act – together with its arrangements and their interpretation in our decision – does not infringe the constitutional right to privacy to beyond necessary.

 

Inadmissibility of Evidence

 

40.       Before concluding, we believe it is appropriate to consider another issue the petitioners raised, namely the admissibility of evidence collected according to the Act in legal proceedings. The Israel Bar, which is the petitioner in HCJ 9995/08, asks that the Act stipulate that obtaining communications data in violation of the Act could not produce evidence that would be admissible in legal proceedings. Furthermore, it requests we add a requirement for the use of evidence procured through the administrative proceedings in section 4 of the Act, whereby a court would retroactively approve the competent officer’s permit before the communications data obtained through the administrative order may be used as evidence in court.

 

41.       Let it immediately be said that we do not find the petitioners’ arguments in this respect substantial and do not see fit to grant the relief sought here, for several reasons. First, we would mention as our premise that the majority of statutory arrangements in our legal system do not include specific rules for inadmissibility (see CrimA 5121/98, Private Refael Isascharov v. The Military Prosecutor, IsrSC 61(1) 461, 524-525 (2006) (hereinafter: “Isascharov”) and also compare CrimA 115/82, Heil Muadi v. State of Israel, IsrSC 38(1) 197, 262 (1984)). Consequently, the absence of an inadmissibility rule in the Communications Data Act does not per se indicate that the Act is constitutionally flawed. Moreover, we would note there are exceptions to the general rule about the lack of inadmissibility provisions in most statues in Israeli law as a limited number of statutes do include such provisions: section 32 of the Protection of Privacy Act, section 13 of the Secret Monitoring Act and sections 10A and 12 of the Evidence Ordinance [New Version], 5731-1971.

 

            As to the Protection of Privacy Act, section 32 of that law already prescribes that material unlawfully obtained while infringing privacy is inadmissible as evidence. As the section states:

 

“Material Inadmissible As Evidence

 

32.       Material obtained while committing an infringement of privacy shall not be used as evidence in court without the consent of the injured party, unless the court, for reasons which shall be recorded, permits such use or if the infringer, as a party to the proceeding, presents a defense or enjoys exemption under this Act.”

 

            Consequently, without ruling on the relationship between the inadmissibility section of the Protection of Privacy Act and conduct under the Communications Data Act, material obtained in violation of the criteria concerning the Communications Data Act might be subject to the inadmissibility provision of the Protection of Privacy Act. Insofar as the Secret Monitoring Act’s inadmissibility rule, as we have already held above, we do not find it possible to analogize between the two statutes and the fact that the Secret Monitoring Act includes a specific inadmissibility rule does not make it necessary to adopt a specific inadmissibility rule in the Communications Data Act too.

 

            Moreover, as we have already held many times in the past, since the 1980s our legal system has been marked by moving from rigid rules of admissibility towards a substantive examination of evidence. We acknowledge this approach prioritizes the court’s substantive review of evidence over disqualification. Nevertheless, this move has been tempered in recent years and because defendants’ basic rights in criminal law were increasingly recognized, a doctrine of relative inadmissibility was adopted in Isascharov. Under this doctrine a court has discretion to rule on the admissibility of evidence that has been unlawfully obtained, depending on the specific circumstances of the case. The rule in Isascharov was summed up as follows:

 

“Where in the past the case law in our legal system held that evidence admissibility is not examined by how it was obtained because the interpretive weight in such context was placed on the purpose of uncovering the truth and fighting crime, a more flexible balance is now sought. It takes into account the duty to protect the defendant’s rights and the fairness and integrity of the criminal procedure. The proper balance between all the competing values and interests in this particular respect leads to the adoption of a doctrine of relative inadmissibility, whereby a court would have discretion to rule on the admissibility of evidence that has been unlawfully obtained on the merits of the actual circumstances of every case and according to the criteria below” (Id, at 546).

 

Given this legal framework, we have, as mentioned, not considered it proper to grant the petitioners’ motions and we have certainly not found that the absence of a specific inadmissibility rule in the Act justifies constitutional intervention. Clearly, insofar as a defendant seeks to assert that material that was obtained under the Act is inadmissible evidence, he may so argue during the judicial proceedings and the court adjudicating the case would review these claims. We do not find this arrangement should be augmented by a specific provision as to evidence obtained under the Act, as opposed to any other evidence allegedly unlawfully obtained. In terms of a requirement to obtain retroactive approval of administrative orders that were duly issued under the Act, to the extent we held the Act and the procedures under it are constitutional, it is inappropriate to hold that they should be bolstered by requirements as to how investigatory authorities may use them in legal proceedings.

 

Conclusion

 

42.       The modern reality in which we live and the technological innovations that accompany it give the citizens of the world – who can afford it – means of communication that are constantly refined and that facilitate easy, quick transmission of information over great distances. On the one hand, this reality has made our world a place where a great deal of private information about the individual moves freely – frequently with the consent of that individual – in the public sphere. On the other hand, this reality has become a convenient platform for negative elements and criminals who wish to use such technology for their own purposes. Countries around the world, including Israel, have realized that these changes can be harnessed to improve their enforcement capabilities and the quality of life for their residents. The Act challenged by these petitions is Israeli law’s regulation of how law enforcement may use sophisticated technology. As discussed at length above, enforcement authorities should have appropriate tools to facilitate law enforcement in the changing reality. Additionally, undoubtedly these moves may potentially infringe greatly on residents’ privacy. This reality requires developing complex arrangements that properly weigh the overall interests at stake. Having carefully reviewed the overall arrangements of the Communications Data Act and its procedures, we have reached the overall conclusion that, considering the proper interpretation regarding the exercise of the powers the Act prescribes – an interpretation which essentially calls for limited implementation strictly when necessary – we see no cause for constitutional intervention. Nonetheless, as we have emphasized time and again, enforcement authorities are under a substantial duty to exercise their powers with prudent discretion and closest attention to the fact that the infringements caused by the Act should be executed only to the necessary extent and degree. Moreover, the Knesset and the Attorney General, who are legally charged with maintaining regular review over how much the Act is used, hold great responsibility in this respect. The same applies to courts reviewing motions for obtaining communications data under the Act. We assume, and trust, that all the authorities involved in implementing the Act will take the strictest care to ensure the powers the legislature granted them are not exercised unnecessarily and that they are used following the limiting criteria delineated in our decision.

 

For the sake of clarity, we would therefore sum up our interpretive findings regarding the Communications Data Act: first, as to the exercise of the powers in both section 3 and section 4, we held that they should be interpreted so that obtaining data under the Act is only permissible where it is necessary for a specific, concrete purpose, like an investigation of a particular occurrence regarding a specific suspect or victim, as opposed to executing the Act for general purposes of detecting offenders and preventing crime. Second, regarding exercising the power in section 4 of the Act, we held this should be interpreted so that a permit obtaining communications data is only sparingly permissible, in extreme cases, in order to deal with offenses that require it and only where because of the urgency it has become clear that it impossible to obtain a court order under section 3. This is when the reason for not approaching a court is because of circumstances involving saving life or other serious factors, always considering a range of factors, including that the subscriber is a professional, the extent of his involvement in the offense, the type of data sought, the degree of urgency, the gravity of the offense and other similar considerations. To the extent journalists are concerned, we have found that the restrictions on the use of orders, as reflected in the procedure concerning section 4, are mandated by the Act’s purpose and the balances the procedures reaches in implementation. Accordingly, when the subscriber is a journalist, who is not the victim or is not suspected of the offense, a motion under section 4 to obtain his communications data of the traffic data will not be approved.

 

43.       Given the above and subject to the restrictions and limitations outlined in this decision as to the proper exercise of powers under the Act, we found no constitutional cause for our intervention. The petitions are dismissed. In the circumstances, there will be no order for costs.

 

Justice E. Arbel

 

1.         The petition centers around the boundaries of the right to privacy as a constitutional right. Technological innovations raise concern that the State will gather and use extensive information of nationals and residents, and this requires adapting the law to this possible harm. In her opinion, the President reviews extensively and in great detail whether the balance the legislature strikes in the            Criminal Procedure (Powers of Enforcement – Communications Data) Act, 5768-2007 (hereinafter: “the Act”) meet the criteria of constitutionality according to our legal system. I agree with her unequivocal conclusion that the Act does infringe the right to privacy. Nevertheless, as stated, the Act neither permits actual listening to conversations or reading messages nor does it permit disclosure of the contents of a person’s conversations. I also agree that the Act meets the criteria of proportionality accepted in our jurisprudence and does not infringe the constitutional right to privacy to an extent beyond necessary. Constitutional cause therefore for this Court’s intervention does not arise. I believe that the inability to obtain communications data would place enforcement authorities at a disadvantage compared to offenders. I agree with my colleague the President’s interpretive findings and reasoning as to the execution of the powers under sections 3 and 4 of the Act. Nevertheless, I find it proper to add one point of reference.

 

2.         I would add what is seemingly self-evident about section 4 of the Act, which permits a competent officer to grant a permit to obtain communications data without a court order in urgent cases in order to prevent a felony, to detect its commission or to save human life, when a court order under section 3 cannot be obtained in time under the circumstances. Section 4(b) of the Act limits such permit to a period of no more than 24 hours. Nevertheless, the Act’s language does not expressly preclude the permit’s renewal by a competent officer at the end of such period or some time thereafter. In my opinion, section 4(b) should be construed as precluding that possibility and as requiring the competent authority to approach a court for an order under section 3 of the Act to the extent it is necessary after the initial period has expired – namely after 24 hours. This interpretation is warranted so that the infringement of the right to privacy does not to exceed the necessary. I would also note that it would be proper, in my opinion, to consider inferring from section 5(d) of the Secret Monitoring Law, 5739-1979 about the court’s retroactive approval of permits issued in urgent cases without a court’s approval. Although section 4 of the Act prescribes arrangements that would permit the Attorney General and the Military Advocate General’s review of that section’s application, in my opinion that is inadequate and the court’s review of the section’s implementation should also be required through retroactive approval of the permit awarded.

 

As said, I concur with the President’s comprehensive opinion and reasoning.

 

President U. Grunis

 

I agree that the petitions should be dismissed as proposed by my colleague, President (Ret.) D. Beinisch.

 

Justice M. Naor

 

I join the comprehensive opinion of my colleague, President (Ret.) D. Beinisch.

 

 

Justice E. Hayut

 

I join the opinion of my colleague the President and her conclusion that subject to the reservations detailed in her opinion as to the proper exercise of the powers granted by the Criminal Procedure (Powers of Enforcement – Communications Data) Act, 5768-2007, the Act meets the criteria of proportionality under the case law and does not infringe the right to privacy unconstitutionally.

 

Justice H. Melcer

 

1.         I join the comprehensive opinion of President (Ret.) D. Beinisch (hereinafter: “the President”) in respect to the proper constitutional interpretation of sections 3, 6 and 7 of the Criminal Procedure (Powers of Enforcement – Communications Data) Law, 5768-2007 (hereinafter: “the Communications Data Collection Act” or “the Act”). Nevertheless, I find myself at issue with the President on two matters:

 

(a)          The protection that should be given in the context of the Law to someone in respect of whom professional privilege applies by law, including case law (hereinafter: “professional privilege”); and

 

(b)         The proper constitutional interpretation of section 4 of the Act and the limitations of its deployment.

 

My opinion on both these issues is expressed below. I would immediately say that my view leads to a constitutional-interpretative conclusion that a competent officer, as defined by section 1 of the Act, cannot act under section 4 of the Act where professional privilege prima facie applies. The only way to try to obtain communications data in such situations is approaching a court and securing its authorization according to section 3 of the Act (especially section 3(b)), subject always to the provisions of law (including case law).

 

I shall now present the reasoning of my said approach and give details in order.

 

The Scope of Professional Privilege in the Context of the Communications Data Collection Act and the Constitutional Rights Involved, upon which the Privilege is Based

 

2.         The President states (at the beginning of para. 10 of her opinion) that it was held in the past that professional privileges “essentially extend to the content of the conversations between the professional and the privileged person but not to the very existence of a relationship with the professional person, and the purpose of the privilege is to allow the privileged person a realm of free communication between him and the professional.” Therefore, the President believes that the Communications Data Collection Act does not in fact infringe privilege, apart from journalistic privilege because, as she sees it, the Act in any event does not permit the obtaining of substantive data, to which the privilege applies.

 

3.         We can see that this method – which distinguishes between the conversation’s substance (which is privileged) and the information around the conversation’s existence and the identity of the parties to it, which is not privileged (according to the argument) – has a significant effect on the consequences of reviewing the whole Act because it impacts the precursory determination of the scope of the constitutional rights that are infringed by the Communications Data Collection Act. Indeed, the conclusion that the first stage of the constitutional analysis, which concerns identifying the scope and force of the constitutional right and its limits, naturally has a significant effect on the second stage of that analysis, which deals with reviewing the constitutionality of the infringement on the constitutional right or of the limitations imposed upon it (see: Aharon Barak, Proportionality in Law 43-48 (2010)).

 

I shall therefore start my enquiry into the key preliminary question as to the relevant privileges and the constitutional rights involved in the whole, an issue where my opinion differs from the position presented by the President.

 

4.         I agree that as a point of departure the distinction between “form” and “substance” should be respected so that the core of the privilege should first apply to the information concerning the contents of conversations between the privileged party and the professional. However, there are cases – and current technological development demonstrates that the same is becoming more and more prevalent – where the core of the privilege, as defined above, radiates outwards and should also protect information, which although per se constitutes only the “form” of the communication, does in the relevant context provide tools for the prohibited disclosure of privileged information. In such cases, that “technical” data, which is not apparently originally privileged, falls within the privilege because its disclosure provides access to protected information. What is important here is that in such cases (which, as noted, are recently not so few) obtaining communications data might infringe professional privilege.

 

Hence, the constitutionality of the Data Communications Collection Act’s provisions, for a provisional order was issued, not only regarding journalistic privilege but also regarding the privilege of other professionals, within the meaning of section 3(d)(7) of the Act. I shall now express my position as to two privileges: attorney-client privilege and doctor-patient privilege. I shall then explain what sets journalistic privilege apart and refer to the constitutional rights in all these contexts and their implications to the Act’s interpretation.

 

Attorney-Client Privilege and the Constitutional Rights upon Which It Rests

 

5.         It is common to believe that a particular method of payment by a client to an attorney – in cash or by check etc. – ordinarily falls into the category of information that is not privileged. In the United States, this distinction gives rise to certain difficulty that impacts the instant case. The enforcement authorities there have discovered that offenders who deal in smuggling dangerous drugs habitually pay for the services they use (that is to say lawful services, including legal services) in cash. Enforcement authorities therefore tried to use this and have attempted to inspect lawyers’ tax returns in order to find large payments of professional fees in cash and the identity of the payers. The lawyers have argued that privileged information, which should not be disclosed, is involved. The conclusion reached in the United States is that, generally, information concerning the method of a particular client’s payment and his identity are not privileged but such information can enjoy privilege where the information:

 

“reveals the motive of the client in seeking representation, litigation strategy, or the specific nature of the service provided” (Chaudhry v. Gallerizzo, 174 F. 3d 394, 402 (4th Cir. 1999); Diversified Group, Inc. v. Daugerdas, 304 F. Supp. 2d 507, 514 (S.D.N.Y. 2003)).

 

That is then one typical way in which the privilege can radiate outwards from its core to information that is not prima facie privileged and that is indeed the way in which matters have also been interpreted in the legal literature there:

 

“The privilege protects an unknown client’s identity where its disclosure would reveal a client’s motive for seeking legal advice. Here extending the privilege to the client’s statement of identity is a means to the end of protecting the confidentiality of the client’s more substantive communications with the attorney” (Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges 746 (2nd Ed., 2009) emphasis added – H.M.; see also Thomas E. Spahn, The Attorney-Client Privilege and the Work Product Doctrine vol. 1 93 (2007)).

 

In Israel, although it is usual to think that the privilege does not apply to the client’s name, it has been maintained that this position is not free of difficulties similar to those described above (see, Dr Gabriel Kling, Ethics in Advocacy 418-419 (2001)). It should also be noted that it was recently held in this context that the obligation imposed on certain attorneys in Israel to include clients’ names in their periodic VAT returns “is not a disproportionate infringement of the client’s privilege vis-à-vis his relationship with the attorney.” Nevertheless, that finding was qualified: “if a concrete problem arises regarding the privilege, the client’s right to argue for privilege is reserved.” (HCJ 115/11, Adv. Cassouto v. The Tax Authority (unpublished, April 30, 2012)).

 

6.         It should be noted here that attorney-client privilege, which is regulated in Israel by section 90 of the Israel Bar Act, 5721-1961 and section 48 of the Evidence Ordinance [New Version], 5731-1971 (hereinafter: “the Evidence Ordinance”), preceded the Basic Law: Human Dignity and Liberty, but since its legislation this privilege apparently also has constitutional element. Attorney-client privilege now derives, at the constitutional level, from the constitutional right to dignity (sections 2, 4 and 11 of the above Basic Law), the constitutional right to liberty (sections 5 and 11 of the above Basic Law) and the right to due process, which was recognized in the case law as a (derivative) constitutional right. See and compare the statement by then Justice D. Beinisch in CrimA 5121/98, Isascharov v. The Chief Military Prosecutor, IsrSC 61(1) 461, 560-561 (2006); Mot.Crim 8823/07, John Doe v. State of Israel, para. 16 of Deputy President E. Rivlin’s opinion (unpublished, February 11, 2010).

 

7.         It should also be mentioned here that the Constitutional Court of Germany recently heard a petition similar to those before us here (which was brought by the German Bar and German Press Association against a corresponding statute that had been enacted there, regulating the collection of communications data). The German Constitutional Court held – in a judgement that was handed down on October 12, 2011 – that absolute privilege should be granted in respect of the gathering of communications data from a practising lawyer, on the basis of attorney-client privilege (which there is based on the constitutional right to dignity) and it also recognized partial privilege (which can be lifted by judicial order) over collecting communications data from journalists. (See BVerfG, 2. Senat, Az: 2 BvR 236/08, 2 BvR 422/08).

 

A similar constitutional approach was adopted in Britain in R. (On the Application of Morgan Grenfell & Co. Ltd) v. Special Commissioner of Income Tax [2003] 1 AC 563 (hereinafter: “MG”). See also Phipson, On Evidence 658 (17th ed, 2010). Compare the judgment of the European Court of Human Rights, Kopp v. Switzerland [1998] 27 EHRR 91. See on the other hand In Re McE [2009] UKHL 15 and criticism of that judgment by Simon McKay, Covert Policing – Law and Practice, pp 277-279 (2011).

 

Doctor-Patient Privilege

 

8.         When a doctor practices exclusively in a particular medical field a situation might arise where the very contact with that doctor – even though the substance of the contact or treatment is not disclosed – will enable a third party to deduce information concerning the purpose underlying the contact and infringe the privilege that governs the relationship between doctor and patient. Thus, for example, it was held in this context in HCJ 447/72, Ismachovitz v. The Investigatory Assessing Officer, IsrSC 27(2) 253 260 (1973) (hereinafter: “Ismachovitz”), as also mentioned in the President’s opinion:

 

“… Here the petitioner states that because of his specific practice in the sphere of sterility and impotence, the disclosure of patients’ names and others who have visited him, such as sperm donors for artificial insemination, merits privilege because those involved would not go to a doctor if they perceived the risk that it would become known. […] I am willing to assume that there may be special cases, where even the identity of the patient will fall within the scope of a privileged confidence under section 49 of the Ordinance, although I dare to doubt whether the petitioner’s practice does indeed require such extension of the protection of privilege”.

 

As mentioned, in the circumstances of Ismachovitz it was held that the identity of the person going to the doctor was not protected, inter alia because the petitioner there practiced in several spheres (and for other legal reasons). However, this conclusion does not derogate from the more general perception that the rigid distinction between the very contact and its substance is problematic in many cases, especially in areas concerning telecommunication. See Constitutional Rights and New Technologies – a Comparative Study, 277-278 (Ronald Leenes, Bert-Jaap Koops, Paul De Hert, Ed., 2008).

 

Furthermore, once the Patient Rights Act, 5756-1996 was legislated (especially if we interpret it in light of Basic Law: Human Dignity and Liberty, which preceded it), the patient’s right to privacy gained paramount status and was raised to constitutional level. Section 19(a) of this Act provides in our context as follows: “a clinician or medical institution worker shall keep secret all information relating to the patient that comes to his knowledge in the course of his duty or in the course of his work” (emphasis added – H.M.).

 

Nevertheless, there is still a certain difference so far as we are concerned between the professional privileges that are regulated, for example in the Evidence Ordinance (all of which can be constitutionally justified one way or another) and journalistic privilege (which is considered to be a creature of case law, with specific characteristics). This difference was also highlighted in these petitions and the President also acknowledged it. We shall immediately deal with this at greater length.

 

The Journalistic Privilege and the Constitutional Rights upon Which It Rests

 

9.         In paragraph 10 of her opinion, the President writes as follows:

 

“As the State also agreed, with regard to journalists, the very identity of the person who contacts a journalist can constitute part of journalistic privilege because it may expose the journalist’s source despite the protection given to such source.”

 

This Court has considered the protection granted to a journalist’s source. In the case of Tzitrin (MA 298/86, Ben Zion Tzitrin v. The Disciplinary Tribunal of the Israel Bar, Tel Aviv District, IsrSC 41(2) 337 (1987) (hereinafter: “Tzitrin”)), President M. Shamgar stated:

 

“The protection of the sources of information necessary for the performance of the journalist’s function, including protecting the relationship of trust on the basis of which information is given in return for an assurance that the source not be disclosed, is therefore a public interest and not the particular interest of the relevant newspaper or journalist” (ibid, p 358).

 

Since Tzitrin, this view has been an axiom of Israeli constitutional law. Nevertheless, the journalist’s privilege has several unique elements compared to other professional privileges and they are set out below –

 

(a)       As already mentioned, it is the result of case law, while the others are statutory.

 

(b)       It is relative (like some of the statutory privileges), unlike, for example, the privilege covering evidence concerning the attorney-client relationship (section 48 of the Evidence Ordinance) or evidence presented by clergymen (section 51 of the Evidence Ordinance), which are absolute. For these, the Evidence Ordinance does not prescribe a balancing formula and courts have not been granted power to order revoking the privilege. See: LCA 5806/06 The Estate of Michael Namirovski, Deceased v. Shimko, paras. 6-7 of Deputy President E. Rivlin’s opinion (unpublished, June 13, 2007); HCJ 844/06 Haifa University v. Prof. Avraham Oz, para. 11 of Justice E. Hayut’s opinion (unpublished, May 14, 2008) (hereinafter: “Haifa University”).

 

(c)       It blocks evidential expression in judicial or investigative proceedings – with the intent of making journalistic information public. The other privileges that apply, for example, in respect of treatment-oriented professions, like lawyers, doctors, psychologists or social workers, preclude the flow of information (to the court) in order to enable the individual privately to put to the professional all the information necessary for his treatment. On the other hand, journalistic privilege blocks evidential expression in judicial or investigatory proceedings specifically with the intention of making matters public and ensuring the public’s right to know. See: pp viii and ix of the work by Yisgav Nakdimon, Precluding Expression in Order to Permit Expression – Suggested Thought Process for Fashioning the Scope and Protection of Journalistic Privilege in the Constitutional Era (Ph.D. thesis, under the supervision of Prof. Ariel Bendor, The Faculty of Law, Haifa University, 2012 (hereinafter: “Nakdimon”).

 

(d)       Unlike the other privileges, it is likely to be infringed per se on disclosure of the journalist’s communications data, which is likely to expose the identity of his sources of information, which is at the very heart of the privilege and not the mere periphery of the right. Hence, it should be acknowledged that not only the name of the source, but any detail or information that might lead to his identification should fall within the scope of journalistic privilege. See: Nakdimon, id, at 153-154, 276-277.

 

10.       The journalist’s privilege is therefore one of the means that guarantee freedom of the press, and constitutionally it is as though it were drawn from the freedom of expression, which is an independent constitutional right that is “at the very heart of democracy” (CrimA 255/68, State of Israel v. Ben Moshe, IsrSC 22(2) 427, 435 (1968)). Other approaches maintain that the freedom of expression itself depends upon a certain degree of privacy, which permits one’s autonomous and original development. See: Stephen Breyer, Active Liberty 62-63 (2008); Ruth Gavison, Privacy and the Limits of the Law (Yale L. J. 475 (1980). For a summary of the different perspectives on this, see also: CA 751/10, John Doe v. Dr Ilana Dayan-Orbach, paras. 61-66 of Deputy President E. Rivlin’s opinion (unpublished, February 8, 2012) (hereinafter: “Dayan”).

 

11.       The other view does not see journalistic privilege as rooted in the doctrine of free expression but bases it directly on the rationale of individual privacy and confidentiality of conversations, that are now constitutional values protected under section 7 of Basic Law: Human Dignity and Liberty (to be precise, the confidentiality of conversation would also appear to include the confidentiality of the parties to the conversation, rather than just its content). Hence, according to this view, journalistic privilege enables the reporter’s source to maintain his anonymity in the world outside the “confidential domain” between the two (see: Michael Birnhack, Control and Consent: the Notional Basis of the Right to privacy, Mishpat U’Mimshal II, 63-64 (2007) (hereinafter: Birnhack, Control and Consent); Michael Birnhack, The Private Domain: the Right to Privacy between Law and Technology, 121-122 (2011) (hereinafter: Birnhack, Private Domain); Nakdimon, at 141-143). In this context anonymity is perceived as part of the right to privacy since “it enables a person ‘to act in peace’ and avoid personal exposure and the giving of information about himself that he does not wish to give… Anonymity gives a person control over information about himself… and prevents ‘gazing’ into his privacy”. (See LCA 4447/07, Mor v. Barak ETC (1995) International Telecommunication Services Ltd, para. 13 of Deputy President E. Rivlin’s opinion (unpublished, March 25, 2010); see also Nakdimon, p 141).

 

12.       All the above indicates that the journalist’s original privilege can also be based on the value of human dignity, enshrined in sections 2, 4 and 11 of Basic Law: Human Dignity and Liberty, because such privilege contributes to safeguarding the freedom of expression, which in turn is embodied in the doctrine of human dignity (see: CA 105/92, Reem Contracting Engineers Ltd v. Nazareth Elite Municipality, IsrSC 47(5) 189 (1993); HCJ 2481/93, Dayan v. The Commander of the Jerusalem District, IsrSC 48(2) 456 (1994); PPA 4463/94, Golan v. The Prison Service, IsrSC 50(4) 136, 152-153 (1996)).

 

To be exact, another constitutional track, which also has certain support, in fact finds the constitutional embodiment of the freedom of expression in the right to liberty, as protected under sections 5 and 11 of Basic Law: Human Dignity and Liberty (see, for example, the paper by Dr Guy E. Carmi Dignity – the Enemy from Within: a Theoretical and Comparative Analysis of Human Dignity As a Free Speech Justification, 9 U. Penn. J.  Con. L. 957 (2007) (hereinafter: “Carmi I”); Guy E. Carmi “Dignitizing” Free Speech in Israel: the Impact of the Constitutional Revolution on Free Speech Protection 57 McGill L. J. (forthcoming 2012) (hereinafter: “Carmi II”). However, this possibility – which has not yet become entrenched in the Israeli legal system – does not directly impact the analysis here and there is therefore no need to consider it at length. Furthermore, as mentioned in LCA 10520/03, Ben Gabir v. Dankner (unpublished, November 12, 2006), there is in any event a certain natural proximity between the separate doctrines of liberty and dignity, which inter alia also finds expression in protections of free expression: “the freedom of expression is the mother of freedoms. It is also the most fragile of them. It is the first to be infringed but the infringement never stops there. All the freedoms fall together with it. Its fall marks the end of human dignity. Human liberty – man’s dignity. Human dignity – man’s liberty” (emphasis added – H.M.; see also in this respect Carmi I, pp 966-967; Dayan para 66).

 

Interim Summary

 

13.       The analysis so far demonstrates that the possible infringement by the Communications Data Collection Law of the protected privileges is not limited merely to journalistic privilege and it might also extend to other privileges that are embodied in the Evidence Ordinance and other provisions of law, or those the case law has or will recognize in the future (see: section 3(d)(7) of the Act. See also Haifa University, bottom of para. 19 of Justice E. Hayut’s opinion (unpublished, May 14, 2008); HCJ 793/05, Bar Ilan University v. The Jerusalem National Labor Court, paras. 11-14 of President D. Beinisch’s opinion (unpublished, January 31, 2011)).

 

Professional privilege therefore promotes the interests of a person involved in a variety of relevant spheres (religion, medicine, law and the like), without concern that his sensitive, personal information will be disclosed (see: Birnhack, Control and Consent, p 34; Isaac Amit, Admissibility, Confidentiality, Privilege and Protected Interests in Civil Law Discovery Proceedings – An Attempt to Impart Order in Uri Kitai Book 247 (Ed. Boaz Sangero, 2007)).

 

As aforesaid, this concept affects constitutional review because in my opinion infringing the privileges constitutes at least an indirect infringement of the constitutional rights to dignity, liberty and privacy.

 

14.       In view of all this and considering the compound infringement of the constitutional rights of privileged persons, which is at stake here, it seems appropriate to ease the sharp distinction between “substance” and “form” in the context of privileges and the communications that include or encompass them. Indeed, “cohesion between the media and the collapse of the distinction between content and communications data requires a new legal framework for protecting privacy, which is not based on a dichotomy like its predecessor but on a continuum of situations classified according to the degree of risk they pose to privacy” (see: Omer Tene, Look at the Pot and See What Is inside: Communications Data and Personal Information in the 21st Century” in Legal Network: Law and Information Technology 287, 313 (Ed. Niva Elkin-Koren & Michael Birnhack, 2011)).

 

I shall now then move on to analyze the constitutional validity of the provisions of the Communications Data Collection Act under review here, in light of my conclusions above. Since I do agree, as noted, with the President’s approach as to the constitutionality of sections 3, 6 and 7 of the Communications Data Collection Act, my review below will center on the constitutionality of the “administrative course” prescribed in the Act, and the boundaries that should, in my opinion, be set for it.

 

Summary Review of the Constitutionality of Section 4 of the Communications Data Collection Act

 

15.       Section 4 of the Communications Data Collection Act establishes a “course” for obtaining permits under the Act, which is reserved for “urgent cases.” The main characteristic of this “course” is that the entity authorizing the permit is not a court but a “competent officer,” as defined in section 1 of the Communications Data Collection Act. It stands to reason – and the President also agrees – that such “administrative course” involves greater infringement of constitutional rights than the “legal course” since a permit to obtain communications data is granted here by an administrative entity – the competent officer – who is asked to do so by another administrative entity (sometimes within the same organization as the competent officer), without having to justify to the judicial authority the reasons for awarding the permit.

 

Indeed, there is a presumption that the administrative authority acts properly and presumably section 4 of the Communications Data Collection Act will only be used where the competent authority believes – in good faith – that this is essential. However, even given this, it does appear to me that, as a society, it is our duty to limit such situations as far as possible since “without judicial review of the executive authority, the separation of powers is undermined and with it man’s liberty is impaired and the fundamentals of the free regime are harmed” (see: HCJ 294/89, The National Insurance Institute v. The Appeals Committee under Section 11 of the Victims of Hostile Action (Pensions) Law, 5730-1970, IsrSC 45(5) 445, 450 (1991); see: Amnion Rubinstein, Barak Medina, The Constitutional Law of the State of Israel vol. I 174 (2005)). Compare with the decision of the Constitutional Council in France, No. DC 2005-532 of January 19, 2006.

 

16.       This inherent problem of section 4 is resolved to some extent by the fact that some of the elements of the “the administrative course” detailed in it are narrower than “the judicial course” regulated in section 3 of the Act and also because it is motivated by the situation’s urgency.

 

Nevertheless, as I see it, “the administrative course” is not appropriate for contending with professional privilege. I shall below explain the reasons for this approach, which differs from my colleague’s opinion.

 

17.       In paragraph 25 of her opinion, the President states that “in the absence of such infringement [in the proportionality of the Communications Data Collection Law – of the privileges, apart from journalistic privilege; the additions in square brackets are mine – HM], prima facie it cannot be said section 4 does not refer to professionals per se it must be struck down for unconstitutionality.” The President also believes the difference between the purposes of the separate “courses” established in the Communications Data Collection Act and the fact that section 4 of the Act is reserved merely for urgent cases can all justify infringing the constitutional rights (to privacy) of professionals, including journalists (albeit with more extensive reservations regarding the latter).

 

In this respect I would adopt a different line and, in my opinion, even in urgent cases, greater (albeit not absolute) weight should be attributed to the constitutional rights of the beneficiaries of professional privilege that may only be infringed, if at all, through a judicial order under section 3 of the Act, which inter alia meets the conditions of the Limitations Clause (my opinion in CA 9183/09, The Football Association Premier League Ltd v. John Doe (unpublished, May 13, 2012). I reach this conclusion by giving a restrictive constitutional interpretation to the provisions of section 4 of the Communications Data Collection Act and the structure of the Act generally but not by invalidating the section, as the petitioners seek. The main reason I am adopting this method of interpretation is twofold –

 

(a)       Invalidating a provision of statute is indeed a last resort and before doing so it should be attempted to resolve the difficulties, if at all possible, by interpretation.

 

(b)       Invalidating a section of the Act opens up the possibility for another inadequate normative arrangement to be enacted in the future, while interpreting the section now resolves the constitutional difficulty once and for all.

 

See: HCJ 9098/01, Genis v. The Ministry of Construction and Housing, IsrSC 59(4) 241 (2004) – in the opinions of President A. Barak and then Justices M. Cheshin and D. Beinisch there.

 

My willingness to interpret, rather than strike down, is thus my joining the President’s. Nevertheless, as for the proper interpretation, I take issue with my colleague’s opinion as I shall immediately explain.

 

18.       The President believes that the narrow arrangements in section 3 of the Communications Data Collection Act can also be reflected in implementing section 4 of the Act as relevant factors that must be considered when exercising the discretion (see para. 26 of her opinion). She also states (in paras. 27-28 of her opinion) as a factor in support of her opinion that the State in fact accepts that position and it is reflected in the Police procedure that regulates the Act’s use (hereinafter: “the procedure”).

 

I myself believe that neither the State’s concession nor the procedure should carry determinative weight in this context. Although the State now agrees that the section 4 of the Act should be implemented somewhat narrowly, nothing lasts forever and in any event this concession (and the procedure based on it) does not constitute a meaningful constitutional factor, but at most alters the administrative framework. It is also deficient in that it involves something of a prohibited secret enactment. Compare: CA 421/61, State of Israel v. Haaz, IsrSC 15 2193, 2204-2205 (1961); LPrisA1127/03, State of Israel v. Klein, IsrSC 48(3) 485, 515 (2005).

 

Hence, I cannot accept the President’s position that “naturally, a change in the authority’s conduct could also lead to a material change in the balance embodied in the Act. Such a change would give rise to new cause to challenge the Act, certainly at the administrative level and perhaps even the constitutional level” (see para. 30 of her opinion). As I see it, the infringement of privilege is currently happening and there is therefore no reason to postpone constitutional review until such time as the administrative authority departs from its narrow approach, a fortiori since in my opinion that approach is inadequate. Hence, as I see it, considering the great role of privileges in safeguarding the constitutional rights detailed above, it is appropriate to hold that interpretatively the “course” for dealing with requests concerning professionals is only in section 3 of the Communications Data Collection Act and constitutes specific law in such respect. Section 4 of the Communications Data Collection Act cannot therefore be used in order to request an “administrative permit” concerning professional privilege.

 

I shall clarify this conclusion below and commence by detailing the relevant constitutional context.

 

19.       In CA 6821/93, United Mizrahi Bank Ltd v. Migdal Cooperative Village, IsrSC 49(4) 221, 265 (1995), President (Ret.) M. Shamgar held as follows (emphasis added – H.M.):

 

“The theoretical point of departure is that the legislature, wishing to alter or infringe a protected right, does so by express provision or clear contradictory determination in the language of the new provisions that conflicts with what preceded it. In any event there should be an attempt to implement statutes that cause this issue by trying to reconcile them. Consequently, the interpretive presumption is that a right protected by an ordinary statute cannot be changed or infringed by subsequent ordinary legislation unless otherwise stated or implied.

 

In the instant case I believe the argument was established that section 4 of the Communications Data Collection Act – if implemented against professional’s privilege – would infringe their constitutional rights. Such infringement is not done by express language but impliedly and it does not constitute a “clear contradictory determination” in the words of President (Ret.) M. Shamgar. President D. Beinisch and Justice. E. Hayut adopted a similar approach in HCJ 10203/03, National Commander Ltd. v. The Attorney General (unpublished, August 20, 2008). It should also be noted that based on a similar perception it was held in Britain, in MG, that:

 

“Legal professional privilege is a fundamental human right long established in the common law… The courts would ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication… Section 20(1) contained no express reference to legal professional privilege and the question is therefore whether its exclusion must necessarily be implied.”

 

(Id, paras. 7 and 8 of the opinion; emphasis added – H.M.)

 

In this context it should be further emphasized that there is a consensus that section 3 of the Communications Data Collection Act offers a more balanced arrangement in this respect, both substantively (the inclusion of detailed arrangements) and at the level of jurisdiction (the requirement that the application for the permit should be made to court, rather than the administrative authority.) The question is therefore whether, in view of the infringement to constitutional rights that underlie professional privilege, we can make do with a guideline that section 3 of the Communications Data Collection Act constitutes considerations (and nothing more) when exercising the power under section 4 of the Act. In my opinion, the answer to the question is in the negative. The overall proper constitutional result is therefore that the arrangement along the court “course” should constitute an exclusive mandatory course in the case of an application to obtain communications data concerning professionals. The reasons for this are explained below.

 

Professional Privilege Is Not to Be Infringed without a Judicial Order

 

20.       Section 3 of the Communications Data Collection Act purports to also permit consideration of urgent cases (see: section 3(f)(2) of the Communications Data Collection Act, in the knowledge that the courts system is organized to respond to such situations 24 hours a day); the “course” prescribed in it is more balanced and proportional than that delineated in the “administrative course”; its infringement on such constitutional rights is less restrictive because it requires considering a greater range of factors. It furthermore requires the administrative authority to submit its justifications to judicial review. Given these factors, enabling the administrative authority “to circumvent” the balanced legal “course” in section 3 of the Communications Data Collection Act in the case of professionals is improper. As mentioned, a series of reasons support the above conclusion and they are set out immediately below.

 

21.       The purpose of the professional privileges is to protect the constitutional values that justify them. They therefore cannot be infringed without suitable justification as provided in the Limitations Clause of Basic Law: Human Dignity and Liberty. Such justification is generally only possible through a judicial order, rather than administrative measures (a fortiori since the privileges are sometimes also presumed absolute.) This perception is what led to MKs Gideon Sa’ar and Shelly Yachimovich’s proposal on second reading, in a reservation to the Act’s Bill, the language of section 3(b) of the Act that was passed, providing as follows:

 

“If the subscriber subject the motion is a professional, the court shall not allow communications data to be obtained as provided in subsection (a), unless it is satisfied, on the basis of clear details to such effect in the motion, that there are grounds to suspect that the professional is involved in the offense, in connection with which the motion was filed.”

 

See: Knesset Proceedings of the 181st session of the 17th Knesset on December 17, 2007, at 12,895, 12,901.

 

These conditions strengthen the requirements the court faces when issuing an order to obtain communications data from the database of a telecommunications licensee, as set in section 3(a) of the Act, which mandate the court be satisfied that “it is necessary” for the purposes of the section “provided that obtaining the communications data does not infringe a person’s privacy beyond necessary”. We therefore have expression of the “Limitations Clause”, which is to be applied in every specific motion and reviewed by the judicial authority. If it does not do so, a serious situation arises as stated by then MK Gideon Sa’ar:

 

“… Whoever understands the significance in the relationship of attorney-client or journalistic privilege, or all those types of privilege, understands that it could be a device for suppressing all professional privilege” (id, at 12,895).

 

MK Shelly Yachimovich further refined matters in the context of journalistic privilege and stated:

 

… And it could go further into somewhat darker realms, and the risk of leading to the unnecessary monitoring of a journalist’s telephone lines might seriously impair his ability to function, the trust that his sources place in him, his ability to expose wrongdoing and corruption and therefore indirectly, or even directly, infringe the freedom of the press, which is a fundamental cornerstone of our democracy” (id, at 12,901)

 

22.       In light of this, it appears to me that the approach that makes infringing professional privilege conditional upon obtaining a judicial order  is the “proper constitutional” format, without which doing so is impossible. The language of section 52 of the Evidence Ordinance, which provides as follows, supports this as well:

 

“The provisions of this chapter shall apply to providing evidence both to a court or tribunal and to any authority, body or person competent under law to hear evidence; and every reference in this chapter to a court shall be deemed to be a reference to a tribunal and to any such body or person as well.”

 

In this regard, scholar Jacob Kedmi states in his work On Evidence, Part III (2009) as follows:

 

“The prevailing approach is to view the term ‘authority’ as expressing the entities that are empowered to conduct an investigation within the meaning of gathering evidence (as distinct from other entities that are empowered ‘to hear evidence’ in the way typical of giving testimony in court); and in that way to interpret the initial provision – as distinct from the final provisions that do not include the term ‘authority’ – as also applying to entities that are legally empowered ‘to gather evidence,’ like the Israel Police, income tax investigators, customs investigators, etc.” (id, at 1012) (emphasis in original – H.M.).

 

This position was in fact adopted in CrimA 8600/03, State of Israel v. Gilad Sharon, IsrSC 58(1) 748 (2003), where an extended bench, per Deputy President T. Or, held as follows:

 

“On its face, it may have been concluded that the Police, which collects evidence, could be treated as a ‘court’… This result is unsatisfactory. It is unreasonable that the Police, in attempting to obtain certain documents and facing a suspect who asserts privilege, are charged with deciding whether he does indeed have privilege… Consequently, when a suspect being investigated by the Police claims a privilege applies, the Police investigator will not have power to decide whether the documents are privileged. In order to obtain the documents the investigator will have to request a court order” (id, at 766).

 

Here it should be stated that in MG, in Britain, a similar approach and interpretation were adopted.

 

It should further be noted that section 12 of the Communications Data Collection Act, which regulates the conflicts of laws, gives effect to this position, as follows:

 

“The provisions of this Act shall not affect the powers granted by law in respect to obtaining information and documents, including communications data, but for a court’s power under section 43 of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 5729-1969 to order communications data to be presented or produced upon request by investigatory or prosecution authorities.”

 

23.       My above conclusion is further supported in terms of journalistic privilege – because of its special characteristics as discussed above since the interpretation expressed in the Police procedure and adopted by the President – does not prima facie bar that where a journalist is suspected of committing a felony (for example holding “secret information” within the meaning of section 113(c) of the Penal Law, 5737-1977) the authorities would seek to act in his regard according to section 4 of the Act or by another administrative method, and there have indeed been examples of this (see Nakdimon 274-276).

 

Moreover, in the analysis so far I have ignored the fact that the Police procedure’s reference to the case of obtaining an “administrative permit” to gather communications data relating to a journalist is limited solely to traffic data (a list of incoming and outgoing calls) (see: section 7(b)(4) of the procedure). On its face this means there is no impediment to requesting other communications data, even when the journalist is not suspected of a “felony,” but this is not expressed in the President’s opinion. This is joined with the initial problem I have discussed above, and even aggravates it, because other communications data can also infringe the journalist’s privilege to the same extent as traffic data. For example, location data regarding communications equipment in the journalist’s possession could expose or help to expose the source of the privileged information (on the distinction between location data and traffic data, see: section 1 of the Communications Data Collection Act.) In this respect Nakdimon states as follows:

 

          “It appears to me that this state of affairs, where journalistic privilege as to communications data is partly regulated by internal Police directives – that might change from time to time otherwise than in the context of public proceedings, and from which the authority might depart – rather than principal legislation, is improper. Moreover, the substance of the arrangement prescribed in the directives is also inadequate because it leaves the door open to circumventing journalistic privilege, without judicial review that would facilitate its protection where it is asserted that the journalist is suspected of the offense involved in the investigation or is its victim, or when the communications data sought are not traffic data but, for example, location data that enable knowing exactly where the parties to the communication between the journalist and the source of information are” (see: id, at 277; emphasis added – H.M.).

 

          This logical statement is apt here and it appears to me that it also appropriately sums up my overall position. The time has therefore come to conclude the matter.

 

Conclusion

 

24.    In conclusion, in light of the Communication Data Collection Act’s potential significant infringement on professionals’ privilege and their protected constitutional rights, I believe that the scope of the Act should be confined by an interpretive determination that the “administrative course” to obtain a permit may not be used where the permit is sought regarding professional privilege. In such a case, the “legal course” will in my opinion constitute an exhaustive and exclusive arrangement. Furthermore – again in the scope thereof – a court would grant an order for disclosure only when the conditions of the “Limitations Clause” were met and when the court is satisfied, in the context of the “professional privilege,” that the interest of collecting the data outweighs the constitutional values that justify the specific privilege.

 

25.    A review of the history that has recognized professional privilege – in Israel and elsewhere in the world – demonstrates that individual rights were developed and founded, inter alia, on the basis of this specific area of law. This was the case in the past and although the present is somewhat complex, as noted, I trust this will also be the case in the future given the need to contend with the challenges with which new technology, the Act and the case law present us.

 

Deputy President E. Rivlin

 

          I join in the result my colleague President D. Beinisch reached, whereby the petitions should be rejected, in light of and subject to the boundaries and limitations detailed in the judgement.

 

          My colleague Justice H. Melcer rightly insists on the need for special protection the Act should afford anyone with professional privilege under statute or case law. He believes that a competent officer should not be permitted to act under section 4 of the Act where privilege prima facie applies because of a profession and that the only way to obtain communications data in those situations must be approaching a court.

 

          As for myself, I would not go so far as to rule out the administrative course in those cases. Nevertheless, I do agree that extreme care should be taken in such cases, as reflected in my colleagues the President and Justice E. Arbel’s opinions.  First, as President D. Beinisch held regarding exercising the power in both section 3 and section 4 of the Act, it should be interpreted so that the data is only obtained where it is required for a specific, concrete need. Second, regarding the exercise of the power in section 4 of the Act, it should be interpreted, as she proposed, so that it is used sparingly in extreme cases for the purpose of dealing with offenses that require it and only where because of the urgency it is impossible to obtain a court order; this is when the motive for applying to court is a serious circumstance such as a  risk to human life. The fact that the subscriber is a professional person should also be taken into account when exercising the power under section 4 or refraining from doing so.

 

          As my colleague Justice E. Arbel believes, I too believe that section 4 of the Act should be construed to preclude the competent officer’s authority to renew a permit. After issuing the initial permit, which is not to exceed 24 hours, section 4 should be interpreted so that the permit may only be renewed by a court.

 

 

          Unanimously decided to dismiss the petitions.

 

          Regarding the interpretation of sections 3, 6 and 7 of the Act, it is decided according to President (Ret.) D. Beinisch’s opinion, joined by all members of the bench.

 

          Regarding the interpretation of section 4 of the Act, it is decided by a majority of the bench, as stated in President (Ret.) D. Beinisch’s opinion, that the power can also be exercised where the communications data are sought from a “professional,” always subject to the limitations and reservations detailed in the opinion. This is against Justice H. Melcer’s dissenting opinion, who believes that the power prescribed in section 4 may not be exercised in order to obtain a permit under the Law in the case of a “professional”.

 

May 28, 2012 (7th Sivan 5772)

 

Shtanger v. Speaker of the Knesset

Case/docket number: 
HCJ 2442/11
Date Decided: 
Wednesday, June 26, 2013
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

A petition which focuses on the question of the legality of two arrangements in the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (hereinafter: the "Detention Law") which were added to the Detention Law, in the framework of Amendment no. 8 to the Law, which was legislated by the Knesset on March 14. 2011. The first arrangement amends Section 53 of the Detention Law. This arrangement provides that from now on, appeals to the Supreme Court on District Courts decisions in appeals on Magistrate Court decisions regarding matters of detention, release, violation of bail or motions for reconsideration, as well as appeals on District Court decisions regarding matters of bail, will be appeals by permission and not as of right  (meaning, that from now on the option of a second appeal will be by permission only). The second arrangement amends Section 62 of the Detention Law and provides that a Supreme Court judge will be permitted to extend the period of detention of a defendant who is detained until the end of proceedings, beyond the nine months, for a period of up to 150 days (and to re-order this from time to time), in such cases in which it appears that it will not be possible to conclude the trial proceedings within a period of 90 days, due to the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges.

 

The High Court of Justice (by President A. Grunis, Justices E. Rubinstein and H. Melcer concurring) denied the petition on the following grounds:

 

The arguments regarding the legislative process of the amendment to the Detention Law: The legislative process of the Amendment to the Detention Law indeed did not precisely correspond with the provisions of Sections 126 and 128 of the Knesset By-Laws (which focus on the specific voting procedures in the second and third readings of bills to which reservations have been submitted). However, these deviations from the provisions of the By-Laws do not constitute a flaw "that goes to the root of the process", which severely and significantly infringes on the fundamental principles of the legislative process in Israel in a manner that would lead to the Courts intervention and the declaration of the Law void. (The fundamental principles of the legislative process, so it was held the Poultry Farmers Case, include, inter alia, the principle of the majority rule, the principle of formal equality – pursuant to which each of the Members of Knesset has one vote, the principle of publicity and the principle of participation – which guarantees the right of each Member of Knesset to participate in the legislative process).

 

The arguments regarding the Law's arrangements infringement of the right to freedom: The Petitioner's arguments in this matter were general and unclear, however, in light of the importance of the right, the merits of the arguments were addressed.

 

As is known, the constitutional review customary in our legal system is divided into three main stages. At the first stage (the "Infringement Stage"), the Court examines whether the law infringes on a constitutional right. If it is found that the law does not infringe on a right, the constitutional examination ends. If it is found that the law infringes on a constitutional right, the examination proceeds to the second stage, in which the Court examines whether the law satisfies the conditions prescribed in the limitation clause. If the law satisfies the four conditions of the limitation clause, the infringement is constitutional, if it doesn't - the constitutional examination reaches the third and final stage, the consequence stage. At this stage, the Court is required to rule as to the consequences of the constitutional infringement.

 

Each of the constitutional examination stages has an important purpose in the entire constitutional analysis. The first stage of the constitutional examination (the "Infringement Stage") is meant to determine the conceptual scope of the constitutional right. The boundaries of the constitutional right are outlined at this stage, by interpreting the relevant right and balancing it with other rights. The second stage of the constitutional examination (the "Limitation Clause") is meant to determine the degree of protection of the right, and the "boundaries" of the legislator and the restrictions imposed on it when infringing on constitutional rights.  Obviously, there is a reciprocal relation between the two stages, but each of the stages has its own balances and independent objectives. Therefore, it is better not to skip the first stage of the constitutional examination, even if ruling at this stage is not simple, unless circumstances justify skipping this stage. This is the case, even if the discussion at the second stage will lead to the conclusion that the law satisfies the proportionality criteria

 

Do the arrangements of the Law infringe on the right of freedom? Indeed, there is no dispute that the detention itself infringes on the right of freedom in the most substantive manner. However, given the importance and centrality of the right – in and of itself and as a means to promote and realize other rights – it should not be interpreted in a narrow way, as applying only to the initial detention decision, but rather the right of freedom should be interpreted as a right that also applies to procedural protections that are directly and tightly related to the protection of the right and the its realization, with each case being examined on its own merits.

 

As for the first arrangement, which provides that the option of a second appeal will be by permission only, the High Court of Justice is of the opinion that this arrangement does not infringe on the right of freedom, since, according to president Grunis' position, the scope of the constitutional right of freedom does not extend to grant the option of a second appeal on detention decisions as of right. This conclusion can be inferred, inter alia, from a review of the scope of the right to appeal in our legal system. The central rule in our system, pursuant to Section 17 of the Basic Law: The Judiciary, grants a litigating party the right that its matter be heard in only two instances. A hearing in a third instance will, as a rule, only be held by permission. In light of the conclusion that the first arrangement does not infringe on the right of freedom, this ends the constitutional examination of the first arrangement.

 

As for the second arrangement, which addressed the possibility of extending the period of detention of a defendant who is detained until the end of proceedings, beyond nine months, for a period of up to 150 days, there was no dispute between the parties that this arrangement does infringe on the right of freedom. Therefore, the High Court of Justice examined whether this arrangement satisfies the conditions of the limitation clause and reached the conclusion that it does (the main question that was ruled upon was the arrangement's compliance with the proportionality condition). In this matter, it was clarified that this is an arrangement that was designated for special cases "in which the Court is convinced that the judicial time required to conclude the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of many defendants or multiple witnesses", and it consists of means which balance between the infringement of the detainee's freedom and the need to adjust the possibilities of extending detention in such complex cases, in which it is clear to the Court that a 90 days extension will not be sufficient). It follows that the infringement deriving from this arrangement to the right to freedom is constitutional.

 

There is no doubt that the amending law discussed in the petition adversely affects, to some degree, the state of suspects and defendants compared to the previous legal situation. However, the mere adverse change does not necessary lead to the conclusion that there is an infringement of a constitutional right or that the amendment does not satisfy the conditions of the limitation clause. We must distinguish between the constitutional threshold and the legal status preceding the amendment to the Law. The legislator has leeway when amending the law, between the legal threshold prescribed before the amendment (which was higher than the constitutional threshold) and the constitutional threshold. As long as the amendment to the law did not prescribe a threshold lower than the constitutional threshold, the new arrangement cannot be deemed unconstitutional.

 

The result is that both parts of the petitions are denied.

 

Justice E. Rubinstein joined the above opinion, subject to certain remarks. Regarding the second arrangement relating to the extension of the detentions by 150 days, it is necessary to distinguish between the authority and the its exercise. As mentioned, the authority in and of itself is within the boundaries of constitutional proportionality. As for its exercise, Justice Rubinstein raises a small warning flag that when the case at hands relates to the denial of freedom from a person who is presumed innocent, relatively frequent judicial review should be allowed, and five months is a long time, and therefore one must be extremely diligent in complying with all of the conditions of the law, and the extension of 150 days should certainly be the exception in practice.

 

As for the second appeal, that is a third instance hearing of a case (the amendment of Section 53) – in light of the workload imposed on the Supreme Court, there can be no dispute, and it is common sense, with all due sensitivity to the denial of freedom which results from the detention of a person who is presumed innocent, that it is not feasible in the long term to have the public resources to deliberate this as of right in three judicial levels. The situation in Israel until the amendment – deliberating detention in two instances as of right – does not exist in any nation. In this sense, the legislator reinstated "reasonable normalcy", taking into consideration that one appeal as of right indeed already exists.

 

Justice H. Melcer also joined the above opinion and emphasized two insights:

 

(a) Alongside the right to appeal – the option to request permission to appeal is also a right, while it may be narrower than the former. However, this limited option can also be deemed as a means of review of the decision which is the subject of the application for permission to appeal and this is sufficient after the initial constitutional right to appeal has been exhausted. A similar approach and development can also be found in comparative law.

 

(b) The arrangement amending Section 62 of the Detention Law, that allows a Supreme Court judge to extend a detention for up to 150 days, in certain given cases – is within the framework of the "statutory leeway" (which is also referred to as the "boundaries of proportionality"), albeit, in the opinion of Justice Melcer, it is situated at the "far end" of such boundaries. It follows that it is not appropriate to grant a constitutional relief, since intervention of such nature in such circumstances is reserved only for the most extraordinary cases, and this is not the case here. The appropriate remedy in such cases is judicial restraint in exercising the authority, and this is indeed how we, Supreme Court Justices, act.

 

 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

The Supreme Court sitting as the High Court of Justice

HCJ 2442-11

CrimApp 4002/11

 

Before:                                                His Honor President A. Grunis                                                                                   His Honor Justice E. Rubinstein                                                                                 His Honor Justice H. Melcer

 

The Petitioner in HCJ 2442/11:           Haim Shtanger, Adv.

 

The Applicant in CrimApp 4002/11:  The State of Israel

 

V.

 

The Respondents in HCJ 2442/11:         1.     The Speaker of the Knesset

                                                                2.     The Government of Israel

 

The Respondents in CrimApp 4002/11: 1.     Hagai Zaguri

                                                                2.     Ramy Azran

                                                                3.     Yossi Mirilashvili

 

                                                                        Petition to Grant an Order Nisi and an Interim Order

                                                                        and a Request to Extend a Detention

 

Date of Session:                                           12th of Tamuz, 5771 (July 14, 2011)

 

On behalf of the Petitioner

in HCJ 2442/11:                            Himself; Adv. Guy Halevy

 

On behalf of the Applicant

in CrimApp 4002/11:                    Adv. Shaul Cohen

 

On behalf of Respondent 1

in HCJ 2442/11:                            Adv. Dr. Gur Bligh

 

On behalf of Respondent 2

in HCJ 2442/11:                            Adv. Aner Helman

 

On behalf of Respondent 1

in CrimApp 4002/11:                    Adv. Avigdor Feldman

 

On behalf of Respondent 2

in CrimApp 4002/11:                    Adv. Moshe Sherman

 

 

 

 

 

 

 

 

J U D G M E N T

 

President A. Grunis:

 

1.The question of the legality of two arrangements in the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (hereinafter: the "Detention Law") stands at the center of the petition before us. These arrangements were added to the Detention Law as part of the Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 8) Law, 5771-2011 (hereinafter: the "Amendment to the Detention Law" or the "Law") which was legislated by the Knesset on March 14, 2011. The first arrangement amends Section 53 of the Detention Law. This arrangement provides that from now on, appeals to the Supreme Court on District Court decisions in appeals on Magistrate Court decisions regarding matters of detention, release, violation of bail or motions for reconsideration, will be appealed by permission and not as of right. The first arrangement therefore provides that, from now on, the option of a second appeal will be by permission only. The second arrangement amends Section 62 of the Detention Law and provides that a Supreme Court judge will be permitted to extend the period of detention of a defendant who is detained until the end of proceedings, beyond nine months, for a period of up to 150 days (and to re-order this from time to time). This, in cases in which it appears that it will not be possible to conclude the trial proceedings within a period of 90 days, due to the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges.

 

Background

 

2.The Criminal Procedure (Enforcement Powers – Detention) (Various Amendments) Legislative Memorandum, 5770-2010, upon which the Amendment to the Detention Law was enacted, detailed the reasoning for the new arrangements, which were incorporated into the Detention Law. It emerges from the legislative memorandum that the purpose of the first arrangement, which, as stated, addresses the revocation of the right to a second appeal and its transformation into an appeal by permission, was to reduce the number of detention hearings being held at the Supreme Court (hereinafter: the "First Arrangement"), and this is what was written in the memorandum:

 

"In light of the heavy workload imposed on the Supreme Court and the scope of appeal hearings, including "third instance" appeals, it is recommended to amend the law such that it will grant only one right of appeal on decisions regarding detention, release, violation of terms of bail, decisions on motions for reconsideration, while allowing the option of a second appeal by permission only. Additionally, in order to prevent courtroom hearings regarding the motion for permission to appeal, and in order to streamline the process, it is recommended that the Supreme Court hearing the second appeal (on a District Court's decision in an appeal) be authorized to dismiss an application in limine, based on the reasons detailed in the motion for permission to appeal, if it did not find there to be a cause justifying granting the application."

 

The purpose of the Second Arrangement, which addresses the extension of the period of detention until the end of proceedings to a period of up to 150 days, was to enable flexibility in extending detentions beyond the nine months prescribed in the Law, in unusual cases in which it is clear in advance that the maximum time period for extending the detention – 90 days – is not sufficient to exhaust the legal proceedings, even given efficient and practical management of the trial. The section specified the circumstances in which, in general, an extended detention extension will be necessary. For example, in cases of complex serious crimes or in cases in which there are a large number of defendants or witnesses (hereinafter: the "Second Arrangement").

 

3.A bill in the spirit of the said legislative memorandum (The Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 9) (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010) was presented to the Knesset on July 13, 2010, as a government bill. On July 21, 2010, the Knesset plenum passed the bill in the first reading, and it was sent to the Constitution, Law and Justice Committee, to be deliberated and prepared for the second and third readings. The committee held two meetings regarding the bill. On March 14, 2011, the bill was debated in the Knesset plenum, in accordance with the updated draft that was prepared by the committee. The Knesset passed the entire bill in the second and third readings on that same day.

 

It will be noted that the First Arrangement, which addresses the right of a "third instance" appeal, underwent a number of changes over the years. At first, in Amendment no. 10 of the Detention Law of 1998 (S.H. 5748 no. 1261) the legislator distinguished between the right of a detainee to a second appeal (meaning, an appeal before the filing of an indictment) and the right of a defendant to a second appeal (meaning, an appeal after an indictment has been filed). Hence, it was prescribed that a detainee, a person released on bail, and a prosecutor may, as of right, appeal for the second time a decision regarding detainment, release, or a motion for reconsideration. In contrast, a defendant may only appeal "in a third instance" if given permission to do so by a Supreme Court judge. This provision was amended in 1995 (S.H. 5755 no. 1514), and the distinction between a "third instance" appeal prior to the filing of an indictment or thereafter was revoked, and a right to a second appeal was granted in both cases. In 1997 this section was revoked in its entirety, and was replaced by the arrangement, the change of which is deliberated in the petition before us (and which, as mentioned, allowed a second appeal as of right).

 

4.Here is the wording of the arrangement, as currently prescribed in the Detention Law. For the sake of convenience, the relevant statutory clauses are presented in their entirety and the additions to the Detention Law, which are the subject of our discussion, appear in bold:

 

Appeal of the Court's Decision

53. (a) A detainee, a person released on bail and a prosecutor may appeal a decision of a court on any matter relating to detention, release, violation of terms of bail or a decision on a motion for reconsideration, and a guarantor may appeal a matter of his guaranty before a court of appeals, which will hear the appeal by a single judge;

 

(a1) (1) Each of those specified in sub-section (a) may motion the Supreme Court to be granted permission to appeal a District Court decision in an appeal pursuant to sub-section (a) ;

 

(2) The Supreme Court shall hear the motion by a single judge, however, the Supreme Court may deny the motion in limine, without a hearing in the presence of the parties; if permission to appeal was so granted, the Supreme Court shall hear it by a single judge and it may hear the motion for permission to appeal as though it were the appeal.

 

 

Release in the Absence of Judgment

 

61. (a) If, after an indictment was filed against a defendant, he was detained for a cumulative period of nine months, and his trial in the first instance did not conclude with a judgment, he shall be released from detainment, either with or without bail.

 

(b) (Cancelled)

 

(c) …

 

Extension or Renewal of Detention

62. (a) Notwithstanding the provisions of Sections 59 to 61, a Supreme Court judge may order the extension or renewal of a detention for a period which will not exceed 90 days, and may repeat that order from time to time, and he may also order the release of the defendant either with or without bail.

 

(b) Notwithstanding the stated in sub-section (a), if the Supreme Court judge was of the opinion that it will not be possible to conclude the trial proceedings within the period of 90 days stated in sub-section (a), because of the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges, he may order the extension of the detention to a period which shall not exceed 150 days, and may re-order this from time to time, and may order the release of the defendant, with or without bail.

 

 

The Parties' Arguments

 

5.The Petitioner in HCJ 2442/11, an attorney by profession, filed his petition as a public petitioner. He requests that the Court declares the Amendment to the Detention Law void, based on two arguments. The first and main argument is a procedural argument and it relates to the legislative process of the Amendment to the Detention Law. According to this argument, during the legislative process, the Knesset deviated from the specific provisions prescribed in Sections 126 and 128 of the Knesset by-laws (hereinafter: the "By-Laws"), which delineate the manner of debating government bills. The Petitioner points to two central flaws in the process: First, after a reservation to a certain section was rejected, a separate vote was not conducted on the wording of the section as proposed by the Constitution, Law and Justice Committee (hereinafter: the "Constitution Committee"), but rather a vote was held on the wording of the section as proposed by the Constitution Committee together with the subsequent section, with respect to which no reservation had been submitted. This vote was conducted contrary to what is prescribed in Section 126 of the By-Laws, according to which it is necessary to vote separately on each section of the law with respect to which reservations were submitted. The second flaw relates to the fact that the chairperson of the Constitution Committee did not respond to the reservations that were submitted to some of the sections of the law, despite the fact that Section 126(f) of the By-Laws explicitly provides that "The chairperson of the committee or whomever is appointed thereby or by the committee, shall respond to those who submitted reservations." In light of these flaws, the Petitioner claims, the Knesset could not vote on the Law at the third reading, and therefore it is void ab initio.

 

6.The second argument raised by the Petitioner is an argument of substance. According to the Petitioner, the arrangements that were prescribed in the Amendment to the Detention Law are contrary to the Basic Law: Human Dignity and Liberty. The crux of the Petitioner's arguments was directed at the revocation of the right to a second appeal as of right and its transformation into an appeal by permission only. According to the Petitioner, one cannot compare between the scope of the right to appeal granted to a defendant in a primary proceeding and the scope of the right to appeal of a detainee, since the former is not necessarily being detained while his trial is being held. Furthermore, according to the Petitioner, the amendment to the Law is wrong in not distinguishing between an appeal filed by the detainee and an appeal filed by the State. According to this argument, one cannot compare between the right of the detainee to a second appeal on a decision to re-detain him (after the Magistrate Court ordered his release from detainment), and the right of the State to appeal a decision to release a defendant. According to the Petitioner, where the State appeals the Magistrate Court's decision, and the District Court accepts the appeal and orders detention, the detainee is not entitled even to one appeal as of right. Therefore, his rights are infringed. As for the second arrangement, about the possibility of extending a defendant's detention period until the end of proceedings for a period of up to 150 days, the Petitioner argued that the Law denies the detainee's right to have his matter examined and reviewed by a Supreme Court judge knowingly and in advance. Therefore, it is argued, this arrangement is not proportionate, does not befit the values of the State of Israel, was not meant for a proper purpose and infringes on a detainee's right of freedom in a scope which is greater than necessary. It will be noted that in the petition, the Petitioner also argued against the legality of an additional arrangement in the Amendment to the Detention Law, which allows the Court to order a maximum 72 hour detention given a prosecutor's declaration regarding an intention to motion the Supreme Court to extend the detention. In the hearing we held in the petition, the Petitioner stated that he withdraws his arguments against the legality of this arrangement.

 

7.It will be noted that CrimApp 4002/11 was joined to the hearing in the petition before us. In this case, a detention extension of 150 additional days beyond the nine months was requested. Incidentally to the hearing regarding the application to extend the detention, the defendants raised arguments regarding the legality of the Second Arrangement. In the decision dated June 14, 2011, it was ruled that the constitutional arguments that were voiced in the hearing before us and that primarily relate to the Second Arrangement, will be examined in the framework of the petition before us (Justice H. Melcer).

 

The Respondents' Response

 

8.The Knesset and the State (hereinafter together: the "Respondents"), filed separate responses to the petition, but their arguments were similar. Therefore, we shall present the essence of their arguments together. Both the Knesset and the State rejected both parts of the Petitioner's arguments. The Knesset's response specified the proceedings that preceded the vote on the Law. The Knesset confirmed in its response that Member of Knesset Ofir Akunis, who chaired the session, added the vote on Section 2 – to which reservations had not been submitted, to the vote on Section 1 of the bill, to which a reservation had been submitted and was rejected. However, according to the Knesset, the process was not flawed, and certainly not by a "flaw that goes to the root of the process", which would justify this Court's intervention in the legislative process. While the Respondents did not deny that according to the provisions of the By-Laws, the Knesset should have put each section for which reservations had been submitted to a separate vote, they argue that the fact that the vote was held for a section for which a reservation had been submitted along with a section for which a reservation had not been submitted, does not constitute a flaw that goes to the root of the matter. The Respondents argue that, as is apparent from the minutes of the Knesset plenum session, during the course of the second reading, the plenum de facto voted separately on each of the reservations that were submitted to the bill, and rejected them all. It further emerges from the minutes that in the votes in the second and third readings the Knesset plenum also positively confirmed the wording of all of the sections of the Law, in accordance with the proposal of the Constitution Committee. In the Knesset's response it was further argued that the technical flaw did not lead to any substantive impairment of the legislative process or to its fundamental objective, i.e., the realization of the right of participation by the Members of Knesset. This, so it was argued, is because Members of Knesset were given two opportunities to consider their position regarding the bill. It is argued that in fact, this practice of voting in an aggregated manner on a section of law for which reservations were submitted, together with an adjacent section for which no reservations were submitted, is customary at the Knesset in many cases. Therefore, the Knesset argued it should be deemed a kind of custom that projects onto the proper interpretation of Section 126 of the By-Laws. The Knesset further argued that pursuant to Section 126(c) of the By-Laws, the chairperson of the session may vote on consecutive sections in an aggregated manner, unless a Member of Knesset demanded to vote separately on each or any of them. In this case, it is argued, Member of Knesset Dov Khenin – who presented the reservations – did not request such a vote. According to the Knesset, this indicates that the Members of Knesset were not of the opinion that the voting process was significantly flawed or that their right to participate in the voting process was infringed.

 

9.The Respondents also rejected the argument that the chairperson of the Constitution Committee did not respond to the reservations to the bill. They argue that a review of the minutes of the Knesset session indicates that during the presentation of the bill the chairperson of the Constitution Committee explicitly related to the reservations and explained why they should be rejected. Therefore, the Respondents were of the opinion that the flaws in the legislative process against which the Petitioner is arguing, are simply technical flaws that at most constitute a slight deviation from the provisions of the By-Laws, and have no real impact on the legislative process.

 

10.The Respondents also requested to reject the substantive constitutional arguments that the Petitioner raised. In the Knesset's response it was even argued that these arguments should be dismissed in limine, since they were raised in a general manner without specifying the substance of the constitutional infringement or the reason why the infringement does not allegedly comply with the terms of the limitation clause. To the point, the Respondents argued that an examination of the substance of the Amendment to the Detention Law does not reveal an infringement of the detainees' basic rights, since the amendment does not relate to the original decision regarding the detention and does not deny the detainee's right to appeal the detention decision. The revocation of the right to a "third instance" appeal (i.e., a second appeal), as argued in the State's response, does not lead to an infringement of the constitutional right of freedom, since the freedom of the detainee or of the defendant was already denied by a previous judicial instance. It was further argued that the basic rights to freedom and dignity do not include the right that the matter of a concrete detention be heard by a third judicial instance – neither as of right nor by permission, as is indicated in the provisions of Section 17 of the Basic Law: The Judiciary, which deals with the right to appeal in Israeli law.

 

11.The Respondents also disagreed with the Petitioner's argument that there is an infringement of constitutional rights in light of the lack of distinction between an appeal submitted by the detainee and an appeal submitted by the State. They argue that it is not unusual because when a State’s appeal on the acquittal of the defendant as part of the primary trial is granted, the defendant also does not have a right to appeal such a judgment. In any event, it was argued, the detainee will have the option of presenting its arguments before an additional instance as part of the appeal procedures, regardless of the identity of the party appealing. This last matter, as it emerges from the Knesset's response, was also discussed at the Constitution Committee, where it was argued that it should be assumed that upon examining motions for permission to appeal, the Court will examine, among its considerations, whether the decision to detain was given following an appeal of the State and whether this prejudices the detainee in such a manner that justifies granting permission to appeal.

 

12.The Respondents also requested to reject the Petitioner's arguments regarding the constitutionality of the Second Arrangement, which allows a Supreme Court judge to extend a detention until the end of proceedings, for a period of up to 150 days. The State argued that since this amendment constitutes a new arrangement, which authorizes ordering the detention of a person, it infringes on the constitutional right of freedom. However, it was argued, the infringement of the right is limited and proportionate, since it is limited to unusual cases and reflects the balance underlying the bill between the principle of the finality of the process and the types of matters which should be examined in the Supreme Court, and the realization of the substantive rights of detainees and defendants.

 

13.It will be further noted that in its response, the State elaborated on the customary practice at the Ministry of Justice pursuant to which Ministry initiatives of legislation amendments in significant matters and matters of principle in the field of criminal procedure and evidence laws are presented for examination to the Minister of Justice's Criminal Procedure and Evidence Laws Advisory Committee (hereinafter: the "Committee"). The Committee is appointed by the Minister of Justice and is headed by a Supreme Court judge. The Committee is comprised of three additional judges (two District Court judges and one Magistrate Court judge), the Deputy Attorney General (Criminal), representatives of the State's Attorney, representatives of the Public Defender, representatives of the Israel Bar Association, a lawyer from the private sector, representatives of the Israel Police and representatives from academia. The State noted in its response that both of the arrangements being examined in this petition were presented to the Committee and that after the Committee examined them it recommended that the Minister of Justice act to amend the Detention Law so that the said arrangements would be prescribed.

 

Discussion

 

The Arguments regarding the Legislative Process of the Amendment to the Detention Law

 

14.The Petitioner's arguments regarding flaws in the legislative process of the Amendment to the Detention Law focus on the proceedings in the Knesset plenum during the second reading. According to the Petitioner, the legislative process did not comply with the provisions of Sections 126 and 128(a) of the Knesset By-Laws. Section 126 of the Knesset By-Laws, entitled "Proceedings for Second Reading" and Section 128(a) entitled "Voting at Second Reading", prescribe as follows:

 

126. (a) The discussion in the second reading shall begin with a speech on behalf of the committee, by the chairperson of the committee or a committee member appointed thereby for such purpose, or, in the chairperson's absence, by a committee member appointed thereby for that purpose by the committee, and the speech on behalf of the committee shall be deemed as a proposal to adopt the bill in the second reading.

 

(b) The chairperson shall put each of the sections of the bill to a separate vote.

 

(c) The chairperson may put consecutive sections for which no reservations were submitted to a vote together, unless a Member of Knesset demanded to vote separately on each or any of them or on one of them.

 

(d) If a reservation was recorded for a specific section, the person submitting the reservation shall be given the right to speak for five minutes to explain the reservation.

 

(e) The chairperson may, with the consent of the person submitting the reservation and of the chairperson of the committee, combine the explanations for the reservations of a number of sections at once.

 

(f) The chairperson of the committee, or whomever appointed thereby or by the committee for such purpose, shall respond to the reservations.

 

(g) The right granted to each member of government to speak on behalf of the government at any stage of the discussion is also granted, at the second reading, to the deputy minister whose ministry is in charge of implementing the proposed law.

 

 

128 (a) The chairperson shall first vote on the proposal of the party making the reservation; if the proposal by the party making the reservation is not adopted, the section, as drafted by the committee, shall be voted upon; if the proposal of the party making the reservation is adopted, he shall vote on the section as drafted in line with the reservation.

 

15.There is no dispute that Section 126 of the By-Laws explicitly provides that the chairperson of the session must put the sections of the bill to a vote one at a time, unless there are consecutive sections for which reservations were not registered – in which case the chairperson may put them to a collective vote (assuming he was not requested to act otherwise by one of the Members of Knesset). There is also no dispute that in accordance with that stated in Section 126 of the By-Laws, the chairperson of the Constitution Committee (or another committee member appointed thereby) should have presented the bill to the plenum and responded to reservations to the bill.

 

In the case at hand, the legislative process indeed did not precisely correspond with the provisions of Sections 126 and 128 of the Knesset By-Laws. The chairperson of the session did not act in accordance with Section 126(c) in all that relates to voting on Section 1 of the bill (relating to the revocation of the right to appeal and its transformation into an appeal by permission), when it put Section 1 of the bill, with respect to which a reservation had been registered, to a vote along with Section 2 of the bill, with respect to which a reservation had not been registered. Additionally, the chairperson of the Constitution Committee did not respond to the reservations after these were presented by Member of Knesset Dov Khenin, but rather, as argued in the Knesset's response, the reservations should be deemed as having been given at the outset of his statement, when he presented the bill to the plenum. The question that arises is whether these deviations from the provisions of the By-Laws should lead to the conclusion that the Law is void or voidable, as the Petitioner claims.

 

The Court's Intervention in the Legislative Process

 

16.The legislative processes in Israel are prescribed, pursuant to Section 19 of the Basic Law: The Knesset, in the Knesset By-Laws. The Knesset By-Laws "prescribe provisions, pursuant to which the Knesset's authorities must act, in the house's 'internal' procedures" (HCJ 652/81 Sarid v. The Speaker of the Knesset, PD 36(2) 197, 202 (1982); hereinafter: the "Sarid Case"; see also Tzvi Inbar "The Legislative Processes in the Knesset" Hamishpat A 91 (5753)). Thus, in order for a "law" to pass, a series of provisions prescribed in the By-Laws, must be satisfied (see, HCJ 975/89 Nimrodi Land Development Ltd. v. The Speaker of the Knesset, PD 45(3), 154, 157 (1991); hereinafter: the "Nimrodi Case"). At the basis of the legislative process is the obligation to conduct three hearings in the Knesset plenum and to enable a discussion in the Knesset committee relevant to the bill, in order to prepare the bill for the second and third readings (ibid, ibid). The Knesset By-Laws distinguish between a private bill, which is presented by one or more Members of Knesset and a bill presented on behalf of the government. The Seventh Chapter of the Knesset By-Laws, which includes Sections 126 and 128, which are relevant to the case at hand, addresses discussions regarding bills on behalf of the government. This chapter outlines the legislative process from the submission of the bill to the Knesset, through the first reading and the discussions at the relevant Knesset committee and ending with tabling the bill for the second and third reading. Sections 126 and 128 focus specifically, on the particular procedures of voting on the bill at the second and third reading.

 

17.A series of rulings by this Court prescribes the conditions upon which the Court will intervene in internal parliamentary proceedings, and specifically, the circumstances in which a statue would be declared void on the grounds of flaws in the legislative process (see, inter alia, HCJ 4885/03 Israel Poultry Farmers Association Agricultural Cooperative Society Ltd v. The State of Israel, PD 59(2) 14 (2004) (hereinafter: the Poultry Farmers Case); HCJ 5131/03 Member of Knesset Litzman v. The Speaker of the Knesset, PD 59(1) 577 (2004)). In the first cases in which the scope of this Court's intervention in internal parliamentary proceedings was examined, the Court ruled that even though it is authorized to examine the Knesset's internal decisions, it will tend to intervene in internal parliamentary proceedings in a limited way, taking into consideration the extent of the alleged infringement of the fabric of the parliamentary relations (see, HCJ 761/86 Miari v. The Speaker of the Knesset, PD 42(4) 868 (1989) (hereinafter: the "Miari Case"); the Sarid Case; the Nimrodi Case). In accordance with this criterion, it was prescribed that when the alleged infringement is slight and "does not impact the structural foundations of our parliamentary system" (the "Sarid Case", page 204), the Court will tend to avoid intervening in the Knesset's internal working procedures (see also, the Miari Case, page 873; Suzie Navot "Twenty Years After the "Sarid Test": Revisiting Judicial Review of Parliamentary Decisions" Mechkarei Mishpat 19 721 (5762-5763)).

 

18.This case law, which allows limited review of the internal work of the Knesset, was interpreted even more narrowly in matters related to judicial review of the legislative process. Justice Barak elaborated on this in the Miari Case, on page 873, when ruling that:

 

"The High Court of Justice is not required to exercise every power with which it is vested. The Court has discretion in exercising the power. Exercising this discretion is of particular importance in matters related to the judicial review of the activity of entities of the legislative authority. Therefore, we will intervene in internal parliamentary proceedings only when there is a allegedly significant infringement which prejudices substantive values of our constitutional system… This self-restraint must be, first and foremost, exercised when the process in which the intervention is requested is the legislative process itself."

 

The constitutionality of the Arrangements Law was discussed during this Court's intervention in the legislative process in the Poultry Farmers Case. In this case Case it was held that the criteria for the Court's intervention in the legislative process, and for the declaration of a law as void due to flaws in the process of its legislation. Therefore, it was held that "the Court must examine, in each and every case, whether it was tainted by a flaw that "goes to the root of the process" which would justify judicial intervention, and that only a flaw that severely and significantly infringes on the fundamental principles of the legislative process in our parliamentary and constitutional system will justify judicial intervention in the legislative process (the Poultry Farmers Case, page 42, original emphases). The fundamental principles of the legislative process, so it was held in the Poultry Farmers Case, include, inter alia, the principle of the majority rule, the principle of formal equality – pursuant to which each of the Members of Knesset has one vote, the principle of publicity and the principle of participation – which guarantees the right of each Member of Knesset to participate in the legislative process (ibid, page 43).

 

19.Does the case before us indeed involve such a flaw that “goes to the root of the process" and severely and significantly infringes on the fundamental principles of the legislative process? The answer is no. The underlying purpose of the process prescribed in the Seventh Chapter of the Knesset By-Laws, and particularly in Sections 126 and 128 which are relevant to the case at hand, is to ensure that the reservations to the sections of the bill being voted on are heard. An additional purpose underlying the legislative process is to ensure that the Members of Knesset choose, in accordance with their vote, one of the drafts for each of the sections of the bill – either the draft that was proposed by the Constitution Committee or the draft that was proposed by the Members of Knesset who raised reservations. In order to realize these purposes, Section 126 prescribes a detailed procedure, in the framework of which the Members of Knesset are presented with drafts of the sections proposed in the bill, and those raising reservations are given an opportunity to express their position. Section 126 further prescribes that the chairperson of the relevant committee (or someone on his behalf) respond to the reservations and present the committee's position regarding the arguments that were raised by those with reservations. After the various positions are presented to the Members of Knesset they are requested to vote in the second reading. The chairperson of the session is required to put each section and reservation to a vote one at a time to ensure that the Members of Knesset are aware that these sections were subject to some kind of dispute, and that by their vote they are supporting one of the proposed drafts.

 

20.In the case before us the chairperson of the session acted properly with respect to most of the sections in the bill, but did not do so when putting section 1 of the bill to a vote. A review of the minutes of the session reveals that the Members of Knesset first voted on the reservation regarding section 1, and only after it was rejected did they move on to vote on section 1, but along with section 2 of the Law. Indeed, according to the provisions of the By-Laws, the Members of Knesset should have voted on section 1 separately from the vote on section 2. However, this deviation does not constitute "a substantial flaw that goes to the root of the process". Due to the separate vote on the reservation, which preceded the vote on the section, it appears that a distinction was made between the draft proposed by those who raised the reservation and the draft that was proposed by the committee. As such, the primary purpose of the legislative process was realized, and therefore no room for the argument that the root of the process was flawed in a manner justifying declaring the Law void.

 

21.The argument that the legislative process was substantively flawed because the chairperson of the Constitution Committee did not respond to the reservations that were raised by Member of Knesset Dov Khenin, is also to be rejected. As mentioned, the position of the Knesset was that the chairperson of the Constitution Committee responded to the reservations when presenting the Law for the second and third reading. Personally, I doubt if the intention of the section was an advance response to reservations that are yet to be presented during the discussion. As stated above, Section 126 prescribes a certain chronological sequence in order to allow the committee that examined the bill to convince the Members of Knesset to support the bill in accordance with the draft proposed. Reversing the order – so that the response to a potential reservation is made before the reservation is presented –misses to some extent the point underlying the section. Therefore, it would be better had they avoided that and acted in accordance with the sequence prescribed in Section 126. However, in the case at hand the minutes of the session indicate that this deviation did not lead to a significant flaw at the root of the process. It seems that Member of Knesset David Rotem, the chairperson of the Constitution Committee, knew of the reservation that Member of Knesset Dov Khenin would present after him, and therefore explicitly stated:

 

"The Hadash group proposed a few reservations which request not to cancel the right to a second appeal in decisions regarding detention and to allow the extension of detention beyond the nine months by 100 days instead of by the 150 days proposed by the committee, and to enable a "bridging" detention of 36 hours instead of 72. We request to reject the reservations, which upset the balance between making the court procedures more efficient and the detainee's rights" (Divrei Haknesset 36 42 (2011)).

 

After Member of Knesset Dov Khenin finished presenting the reservations, the chairperson of the session turned to Member of Knesset Rotem and asked him if he wishes to respond. Once he received a negative answer (from Member of Knesset Ze’ev Bielski) the chairperson said: "He doesn't want to, we shall proceed immediately to voting" (Minutes of the Knesset plenum dated March 14, 2011, page 47. The Minutes were attached to the petition and marked Annex C). It merges from here that the option of relating to the reservations was examined but rejected, probably because of the things voiced by Member of Knesset Rotem when presenting the bill to the Members of Knesset. As mentioned, it would have been better had the committee's response to the reservations been presented after they had been presented to the Members of Knesset, but in the case at hand, it appears that Member of Knesset Rotem's reference satisfies the principle need for a reference to the merits of the reservations, even if the sequence in which it was presented constituted a procedural violation of the provisions of the By-Laws. It will be parenthetically noted that in any event those who could have been prejudiced by the fact that the reference to the reservations was given in advance and not after they were presented to the committee, are those supporting the bill and not those objecting to it; since the response to the reservation is intended to convince the Members of the Knesset to vote for the draft proposed by the committee and not by those raising reservations.

 

Inconclusion,  although the Members of Knesset deviated from the provisions of the By-Laws in the legislative process, this deviation was not a flaw at the root of the process, which infringes on the fundamental principles of the legislative process in Israel, in a manner that would lead to declaring the Law void.

 

The Arguments regarding the Arrangements in the Law Infringing on the Right of Freedom

 

22.The Petitioner's second argument was directed to the merits of the arrangements. As mentioned, according to the Petitioner, these arrangements result in disproportionate infringement of the right of freedom. It will be noted at the beginning that the Petitioner's arguments in this matter were general and unclear. The Petitioner did not specify the nature of the infringement of the right of freedom, and did not clarify why the infringement does not satisfy the terms of the limitation clause. On these grounds alone the Petitioner's arguments could have been rejected (on burdens of proof in constitutional petitions see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village, PD 49(4) 221, 428-429 (1995) (hereinafter: the "Mizrachi Bank Case"); HCJ 366/03 The Association for Commitment to Peace and Social Justice v. The Minister of Finance, 2nd paragraph of Justice D. Beinisch's judgment (December 12, 2005)). Nevertheless, and in light of the importance of the main constitutional right discussed in the petition, we shall discuss the merits of this argument (see in this context, HCJ 6055/95 Tzemach v. The Minister of Defense, PD 53(5) 241, 268 (1999); hereinafter: the "Tzemach Case").

 

The Stages of Judicial Review

 

23.As is known, the constitutional review customary in our legal system is divided into three main stages. At the first stage (the "Infringement Stage"), the Court examines whether the law infringes on a constitutional right. If it is found that the law does not infringe on a right, the constitutional examination ends. If it is found that the law infringes on a constitutional right, the examination proceeds to the second stage, in which the Court examines whether the law satisfies the conditions prescribed in the limitation clause. The limitation clause conditions the validity of an infringement on the satisfaction of cumulative conditions: the infringement is prescribed by a statute or pursuant to a statute by virtue of explicit authorization therein; the infringing statute befits the values of the State of Israel; the infringing law is intended for a proper purpose, and the last condition, the proportionality condition, requires that the infringement is no greater than necessary. If the law satisfies the four conditions of the limitation clause, the infringement is constitutional, if it doesn't - the constitutional examination reaches the third and final stage, the consequence stage. At this stage, the Court is required to rule as to the consequences of the constitutional infringement (for the stages of the constitutional examination, see, among many others, the Mizrachi Bank Case, page 428; HCJ 1715/97 The Israel Investment Managers Association v. The Minister of Finance PD 51(4) 367, 383-389 (1997); HCJ 1661/05 Hof Azza Regional Council v. The Israel Knesset, PD 59(2) 481, 544-548 (2005)).

 

24.Each of the constitutional examination stages has an important purpose in the entire constitutional analysis. The first stage of the constitutional examination (the "Infringement Stage") is meant to determine the conceptual scope of the constitutional right. The boundaries of the constitutional right are outlined at this stage, by interpreting the relevant right and balancing it with other rights. The second stage of the constitutional examination (the "Limitation Clause") is meant to determine the degree of protection of the right, and the "boundaries" of the legislator and the restrictions imposed on it when infringing on constitutional rights (see, HCJ 10662/04 Hasan v. The National Insurance Institute, paragraph 24 of President D. Beinisch's judgement (February 28, 2012)). Obviously, there is a reciprocal relation between the two stages. The limits of the constitutional right are not only determined by outlining the conceptual scope of the right but also by outlining the degree of protection they shall be given. However, the distinction between the stages should not be blurred. Each of the stages has its own balances and independent objectives. Therefore, in my opinion, it is better not to skip the first stage of the constitutional examination, even if ruling at this stage is not simple, unless circumstances justify skipping this stage. This is the case, even if the discussion at the second stage will lead to the conclusion that the law satisfies the proportionality criteria (see CrimA 4424/98 Silgado v. The State of Israel, PD 56(5) 529 (2002)). Interpreting the right at the first stage, in order to determine its extent, and ruling whether there is an infringement of the constitutional right, will assist clarifying the scope of the constitutional rights. It will ensure that the Court will not be swamped with motions to examine the constitutionality of each and every law (see the Mizrachi Bank Case, Justice Y. Zamir's position, on pages 470-471; see also my position in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, PD 61(2) 202, 513-514 (2006); hereinafter: the "Adalah Case"). It will prevent debasing and diluting the constitutional rights and weakening the protection they are granted against infringement (regarding the matter of the two stages of the constitutional examination, see HCJ 10203/03 "The National Census" Ltd. v. The Attorney General, PD 62(4) 715 (2008)). Indeed, once two central stages of the constitutional discussion have formed in our system, each of them must be granted its proper place. We will turn then to examining the first stage in the case at hand.

 

Do the Arrangements of the Law Infringe the Right of Freedom?

 

25.With respect to the question whether there is an infringement of the right of freedom, the Respondents distinguished between the two arrangements discussed in this petition. As for the First Arrangement, which cancels the right to a second appeal and transforms it into an appeal by permission only, the Respondents were of the opinion that this arrangement does not infringe on constitutional rights at all, since the First Arrangement does not address the original decision regarding the detention and does not deny the right to appeal the detention decision, but rather only determines that the second appeal will be by permission and not as of right. As for the Second Arrangement, the State agreed that since it constitutes a new statutory provision that authorizes the Court to extend the detention of a person who has been detained until the end of proceedings by 150 additional days, it should be deemed an arrangement that infringes on the right of freedom. The dispute between the parties, thus, relates to the question whether the First Arrangement infringes on the right of freedom.

 

26.As we elaborated above, the first stage in the constitutional examination requires the interpretation of the constitutional right. This interpretation, as President A. Barak said (in a minority opinion), "Does not restrict nor expand. This is an interpretation that reflects the Israeli society's understanding of the substance of human rights, based on their constitutional structure and in accordance with the constitutional measurements that were prescribed in the basic laws, all while considering that which is of value and fundamental and rejecting that which is temporary and passing (the Adalah Case, page 356). Does a constitutional interpretation of the right of freedom lead to the conclusion that the right incorporates the option of filing a second appeal as of right on decisions regarding matters of detention, release, violating terms of bail or a motion for reconsideration (and on decisions of the District Court regrading matters of bail)?

 

27.I believe that there is no dispute that the right of freedom, in general, and the right of freedom from detention, in particular, is a fundamental right in Israel. It is anchored in Section 5 of the Basic Law: Human Dignity and Liberty, which prescribes that: "There shall be no deprivation or restriction of the freedom of a person by imprisonment, detention, extradition or otherwise" "Personal freedom" as Justice Y. Zamir says, "is a constitutional right of first degree, and practically speaking it is also a prerequisite for exercising other basic rights… personal freedom, more than any other right, it is what makes a person free. Therefore, denying personal freedom is an especially severe infringement" (the Tzemach Case, page 261). Detention infringes on a person's freedom in the most basic way. Detention denies the freedom from a person who has not yet been convicted by law and is still presumed innocent. At times, detention denies the freedom of a person who is only suspected of committing an offense, and his detention is necessary solely for interrogation purposes. Therefore, the infringement of freedom, which is the direct consequence of the detention, requires taking cautionary measures prior to instructing that a person be detained (see CrimApp 537/95 Ganimat v. The State of Israel PD 49(3) 355, 405 (Deputy President A. Barak) (1995); hereinafter: the "Ganimat Case").

 

28.The Respondents' position, as mentioned, was that there is no infringement of the right of freedom since the First Arrangement does not address the actual detention decision itself, but rather the possibility of appealing such decision as of right. Indeed, there is no dispute that the detention itself infringes on the right of freedom in the most substantive manner. However, does it follow that only the original decision regarding the detention infringes on the right of freedom? Does an infringement of the procedural frameworks that are meant to realize the right of freedom and protect it, not amount, at least in some cases, to an infringement of the right of freedom itself? In other words, does the right of freedom also encompass the procedural process that accompanies the detention decision? In my opinion, interpreting the right of freedom as applying only to the detention decision is an excessively limiting interpretation of the scope of the right. The importance and centrality of the right of freedom – in and of itself and as a means to promote and realize other rights – requires a broader interpretation of the right, so that it will also apply to procedural protections and procedural arrangements that are directly related to the right and its realization. Interpretation of this spirit was adopted in previous rulings of this Court. For example, it was held that the legitimacy of denying freedom depends of the identity of the entity authorized to deny the freedom and the manner in which freedom is actually denied (see, HCJ 2605/05 The Academic Center for Law and Business (Registered Amuta) v. The Minister of Finance, paragraphs 29-30 of President D. Beinisch’s judgment (November 19, 2009)). It was further held that maintaining a fair detention process is a constitutional principle that derives from the protection of the rights to freedom and dignity (CrimApp 8823/07 Anonymous v. The State of Israel, paragraph 19 of Deputy President E. Rivlin's judgment (February 11, 2010); hereinafter: the "Anonymous Case"). Indeed, this interpretation of the right of freedom, as a right that also applies to procedural protections directly and tightly related to the protection of the right, also coincides with the customary principle in our system that constitutional rights are to be interpreted from a "broad perspective" (see the words of Deputy President S. Agranat in FH 13/60 The Attorney General v. Matana, PD 16 430, 442 (1962); HCJ 428/86 Barzilay v. The Government of Israel, PD 40(3) 505, 595 (1986); see also President A. Barak's words that the "Constitutional interpretation is not pedantic, not legalistic… indeed, constitutional interpretation is from a 'broad perspective'… but the constitutional interpretation is a legal interpretation; it is part of our interpretation theory" HCJ 4128/02 Adam, Teva V’din - Israel Union for Environmental Defense v. The Prime Minister of Israel, PD 58(3) 503, 518 (2004)).

 

29.In the matter at hand, the question is whether the option to file a second appeal as of right and not by permission is one of those procedural protections directly and tightly related to the right of freedom, such that denying it constitutes an infringement of the right itself (although it is important to note that the right to appeal, in and of itself, is considered a provision of substantive law as opposed to procedural law (see HCJ 87/85 Arjub v. IDF Forces Command, PD 42(1) 353, 361 (1988); hereinafter: the "Arjub Case")). In my opinion the answer is no. Without setting hard rules regarding the procedural protections that will fall under the rubric of the right of freedom – a matter which should be examined on the merits of each case – it cannot be said that the scope of the constitutional right of freedom expands as far as granting the option of a second appeal on detention decisions as of right. This conclusion can be inferred, inter alia, from a review of the scope of the right to appeal in our legal system.

 

30.Section 17 of the Basic Law: The Judiciary provides the fundamental rule that "A judgement of a court of first instance, other than a Supreme Court judgment, can be appealed as of right". In a series of judgments this Court has discussed the nature of the right to appeal (see the Arjub Case, on pages 360-363; CrimA 111/99 Schwartz v. The State of Israel, PD 54(2) 241, 271-272 (2000) and the references appearing therein; LCrimA 3268/02 Kozali v. The State of Israel, paragraph 6 of the decision (March 5, 2003)). Although the importance of the right to appeal has been recognized in case law, the question of its constitutional status in not sufficiently clear (see, for example, Shlomo Levin, "Basic Law: Human Dignity and Liberty and Civil Procedure" Hapraklit 42 451, 462-463 (5755-5756); but see the positions of Registrar Y. Mersel in LCivA 9041/05 "Imrei Chaim" Registered Amuta v. Aharon Wisel (January 30, 2006) that since the right of appeal was anchored in the Basic Law: The Judiciary, it is customary to view it as a right that has a constitutional status. See also: Asher Grunis, Tel Sela "The Courts and Procedural Arrangements" The Shlomo Levin Book 59, 64-67 (2013). In any event, it has been held that even if the right to appeal is deemed a constitutional right, then as all the other rights, it also is a restricted and not absolute right, and it is weighed against organizational principles of stability and finality (See CApp 3931/97 Efraim v. Migdal Insurance Company Ltd. (August 5, 1997)).

 

31.The central rule in our system, pursuant to Section 17 of the Basic Law: The Judiciary, grants a litigating party the right that its matter be heard in only two instances. A hearing in a third instance will only be held, as a rule, by permission. The said Section 17 applies regardless of whether it is a criminal, civil or administrative matter, but it does not relate to interim decisions – with respect to which there is a distinction between the criminal, civil and administrative fields. In the criminal field, other than special cases, there is no right to question interim decisions. In the civil field, there is no right to appeal interim decisions, but it is possible to request permission from the appellant instance to appeal (Sections 41(b) and 52(b) of the Courts [Consolidated Version] Law, 5744-1984; see also the Courts (Types of Decisions for which Permission to Appeal will not be Granted) Order, 5769-2009; LCivA 3783/13 I.D.B. Development Company Ltd. v. Shamia (June 5, 2013)). In the administrative field, permission to appeal may only be requested with respect to certain interim decisions (see, Section 12 of the Administrative Courts Law, 5760-2000). In addition, Section 41(b) of the Courts Law provides that a District Court judgment in an appeal can be appealed to the Supreme Court if permission was granted by the Supreme Court or by the District Court in its appeal judgment (for a review of the appeal arrangements customary in our legal system, see CrimA 4793/05 Navon v. Atzmon (February 6, 2007); hereinafter: the "Navon Case").

 

32.It emerges from this review that a litigant has a vested right that its matter be heard only before two instances, the trial instance and the appellate instance. A hearing in a third instance is subject to receive permission from the authorized instance. This scope of the right to appeal is based on a number of foundations. First, it has been held in previous rulings of this court that the existence of a right to appeal strengthens the fairness and reasonableness elements of the judicial process and allows an additional opening to discovering errors. However, it was held that this reason alone should not enable multiple "appeals on appeals", and that "there must be a limited format that distinguishes between an appeal as of right and an appeal by permission" (the Arjub Case, on page 372). Secondly, it has been held that interpretation leads to the conclusion that a litigating party must request permission to appeal is not equivalent to denying the right to appeal (see CivApp 4936/06 Aroch v. Clal Finances Management Ltd. (September 25, 2006)). Thirdly, it has been found that "doing justice does not necessitate such a comprehensive examination of every matter" (ALA 103/82 Haifa Parking Ltd. v. Matzat Or Ltd., PD 36(3) 123, 125 (1982); original emphasis), and that limiting the right to appeal allows to define the discussion in a manner that promotes the principle of finality of the process. An additional reason that underlies this approach is the issue of the courts’ workload. It is clear that if every matter were to be brought before three instances, this would impose a heavy workload on the court system. The meaning of such overload is an infringement on the right of litigants that legal processes conclude within reasonable time. Therefore, the customary case law here is that a litigating party has one right to appeal, and that the authorized court will concede to the motion for permission to appeal in extraordinary cases only, in which there is legal or public importance that a certain matter be examined by a third instance (ibid, on pages 125-126).

 

33.It could be argued that in detention procedures it is necessary to deviate from the ordinary customary rules regarding the right to appeal. Thus, it would be argued that in detention procedures a different approach, which is more lenient with the detainee, is required, in light of the possible infringement of a person's freedom. Therefore, while the right to appeal, in general, includes only one appeal as of right, the right to appeal in detention matters, as a right that is protected in the framework of the right of freedom, also encompasses the option to file a second appeal as of right. I do not accept this argument. While I do not dispute the need – which is expressed in the legislation and in the rulings of this Court – to recognize the special status of detention procedures (see, for example, CrimApp 3357/03 Kaabiya v. The State of Israel (May 1, 2006); Anonymous Case, paragraphs 19-21 of Deputy President E. Rivlin's judgment; CrimApp 3899/95 The State of Israel v. Jamal PD 49(3) 164, 167 (1995)), this special status does not necessitate recognizing that the right of freedom includes a right that two different instances be required to examine a detention decision (for criticism on the right to a second appeal in detention decisions, see CrimApp 45/10 Masarwa v. The State of Israel (January 8, 2010)). In fact, accepting this position would lead to an anomaly not only between the detention laws and the other legal fields, but also within the detention laws themselves. Take for example a case in which a person was detained until the end of proceedings. Section 21 of the Detention Law grants the court to which an indictment was filed authority to order the detention of the defendant until the end of proceedings. Where an indictment was filed to the Magistrate Court, and the Court decided to detain the defendant until the end of proceedings, the detainee will be able to appeal the decision to the District Court as of right, and today, following the First Arrangement, it will be able to request permission from the Supreme Court to appeal. In comparison, a defendant against whom an indictment was filed to the District Court and the Court decided to detain him until the end of proceedings, will be able to appeal to the Supreme Court as of right, but he will not have the option to request permission from an additional instance to appeal. Will we say that the latter's right of freedom was infringed because he is not able to bring his matter before three instances? Can we not assume that the infringement of his freedom could be more severe, since in most cases detainment until the end of proceedings for an indictment filed to the District Court might continue for a more extended period of time than detainment until the end of proceedings for an indictment filed to the Magistrate Court?!

 

34.It follows that it cannot be said that in order to realize and protect the right of freedom, it is necessary that three instances review a detention decision. The meaning is that regardless of whether we classify the detention decision as a judgment or as an interim decision (see, for example, regarding the definition of a "judgment", CA 165/50 Epstein v. Zilberstein PD 6 1201, 1210 (1952); see also LCrimA 7487/07 Yakimov v. The State of Israel – The Head Military Prosecutor (April 16, 2008)), the fact that the detainee is not a-priori entitled as of right to have his matter heard by three instances, will not change. Furthermore, the fact that different decisions were adopted in each of the instances does not impact the scope of the right to appeal, and consequently, the right of freedom. Thus, there is no significance to the fact that a Magistrate Court chose to release a detainee while the District Court reversed that decision. The fact that conflicting decisions were given does not, in and of itself, lead to the conclusion that the detainee has a right that his matter be heard before a third instance (see the Navon Case, paragraph 7 of my judgment). The fact that different decisions were given in each of the instances is certainly a circumstance, among various circumstances, that the Supreme Court will consider when deciding if it is appropriate to concede to the motion for permission to appeal. This fact in and of itself does not create an automatic entitlement to an additional appeal as of right.

 

35.It is important to note that the injury that might be caused to the detainee, which is severe in and of itself, cannot justify a holding that he is entitled to be heard in three instances. There are many other situations in which a significant infringement of rights can occur, but this is not sufficient to impact the scope of the right to appeal. Suffice it to mention that there is no right of appeal at all on petitions to the High Court of Justice – the decisions of which could have a significant impact on the individual – (but rather only a petition for a further hearing, the causes for which are narrow and limited); and that there is only one right of appeal on criminal or civil judgments. Indeed, there is no dispute that the infringement of a person's freedom as a result of detention is severe, and therefore, it constitutes an important circumstance when examining the detainee's matter, including in the decision whether to grant permission to appeal to the Supreme Court. However, this is not an exclusive circumstance in the sense that that right to a second appeal is a part of the protections that fall under the rubric of the constitutional right of freedom, such that its denial is an infringement of the right itself. We will further note parenthetically that the First Arrangement, which was examined in the Petition, does not only address detention decisions, but also appeals on decisions relating to release, violation of terms of bail, motions for reconsideration and appeals on District Court decisions regarding bail. It is clear that the level of injury in the latter cases is not identical to that of detention and, therefore, the justification to deviate from the ordinary rule of a hearing before two instances, is even weaker in these cases.

 

An examination of the Supreme Court's decisions in motions for permission to appeal on decisions regarding detention, pursuant to the First Arrangement, reveals that the Court indeed takes the infringement of the right of freedom into consideration when ruling whether permission to appeal should be granted. Although the case law is that permission to appeal will be granted when the motion raises a legal question of importance as a principle, which exceeds the matter of the parties to the proceeding, the Court was willing to adopt a broader approach and to also grant motions for permission to appeal when there are special and extraordinary individual circumstances which justify a hearing before a third instance (see, for example, CrimApp 2786/11 Gerris v. The State of Israel, paragraph 7 of the decision (April 17, 2011); CrimApp 4900/12 The State of Israel v. Anonymous, paragraph 8 of the decision and the references there (June 25, 2012); CrimApp 4706/12 Anonymous v. The State of Israel, paragraph 8 of the decision (June 21, 2012); CrimApp 1200/13 Azulay v. The State of Israel, paragraph 9 of the decision (February 24, 2013)).

 

36.The conclusion is that the First Arrangement does not infringe on the right of freedom. It will be noted that the Petitioner did not raise arguments in his petition regarding the potential infringement of the First Arrangement of the right to due process or the right to access courts. Therefore, we did not see it necessary to address the infringement of these rights. As we have not found there to be an infringement of the right of freedom, this ends the constitutional examination of the First Arrangement.

 

Does the Second Arrangement Satisfy the Conditions of the Limitation Clause

 

37.As mentioned, there was no dispute between the parties that the Second Arrangement infringes on the right of freedom. We are therefore left to examine whether this arrangement satisfies the conditions of the limitation clause. For the sake of convenience, we will requote the language of the Second Arrangement:

 

(b) Notwithstanding that which is stated in sub-section (a), if a Supreme Court judge was of the opinion that it will not be possible to conclude the trial proceedings within the period of 90 days stated in sub-section (a), because of the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges, he may order the extension of the detention to a period which shall not exceed 150 days, and may re-order this from time to time, and may order the release of the defendant, with or without bail.

 

38.The first condition of the limitation clause requires that the infringement be by a law or pursuant to a law. There is no dispute that in the case at hand this condition is satisfied, since the Second Arrangement is prescribed in the law amending the Detention Law. The second and third conditions address the purposes of the infringing law. According to the second condition, the infringing law must befit the values of the State of Israel, and according to the third condition it should be demonstrated that the infringing law is intended for a proper purpose. We will now examine both of these conditions.

 

39.The purpose of the Second Arrangement, similar to the purpose of the entire amendment, as it emerges from the explanatory notes to the bill, was "to shift the balance between the principle of finality and the types of matters that should be examined by the Supreme Court and the realization of the substantive rights of detainees and defendants " (Explanatory notes to the Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 9) (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010, Government Bills 533). Regarding the Second Arrangement, the legislative memorandum stated that: "Experience shows that in some cases it is clear in advance that the maximum time period for extending the detention prescribed in these sections is not sufficient to exhaust the legal proceedings. This is sometimes the case in cases of complex severe crimes in which the defendants are detained until the end of the proceedings against them, in which there are many witnesses. At times, numerous hearings are required, which significantly extends the duration of the trial, and consequently the period of the defendant's detention (the legislative memorandum was attached to the State's response dated July 7, 2011, and marked Res/1).

 

40.The underlying purpose of the Second Arrangement was to reduce the number of Supreme Court hearings on motions to extend detentions in particularly complex cases in which it is clear that the period of time the legislator allocated (90 days beyond the nine months of detention) will not be sufficient to conclude the trial. That, even when the trial is conducted efficiently and purposefully it cannot be said that this is not a proper purpose. In light of the heavy workload imposed on the Supreme Court and the entire justice system, reducing the number of detention extension hearings – in special circumstances and based on criteria prescribed in the law – is a proper and vital purpose. This purpose will allow the Court to dedicate time to other proceedings before it, including other criminal cases and detention procedures, and reduce the period of time required to rule thereon. In this context, we will mention Section 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides a series of conditions for a fair trial, including the need to conclude legal proceedings within a reasonable time. It cannot be said that this purpose does not befit the values of the State of Israel as a Jewish and democratic state. Reducing the time of handling cases and responding to the needs of those approaching the court system is a purpose that definitely befits the values of the State.

 

41.The main question to be decided with respect to the Second Arrangement is its compliance with the proportionality condition. As is known, it is customary to divide the condition that the infringement is no greater than necessary into three sub-tests. The first sub-test examines whether there is a rational connection between the means selected by the law and the purpose thereof. In the case at hand, it is clear that there is a rational connection between the means – extending detention by 150 days instead of by 90 days – and the purpose of reducing the number of hearings in the Supreme Court. The second sub-test examines whether the selected means is the less harmful means. As stated in the State's response, the means selected balances between the infringement of the detainee's freedom and the need to adjust the options to extend the detention in order to fit complex cases, cases of severe crimes and cases in which it is clear to the Court that a 90 day extension will not be sufficient. One of the main balances outlined in the Law is that the Law did not revoke the option of extending a detention by 90 days (pursuant to Section 62 of the Detention Law), but rather left that as is, and allowed the Court to choose, as a matter of discretion and as an exception to the "standard" detention extension, the option of extending the detention by 150 days. An additional balance is that the authority is vested with a judge of the highest instance. Furthermore, in order to exercise this authority, one of the special conditions listed in the section, which lead to the conclusion that it will not be possible to conclude the examination of the case in a shorter period of time,  must be satisfied, i.e., the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges. These balances indicate that the legislator selected the less harmful means in order to realize the purpose.

 

42.The third sub-test, the proportionality test "in the narrow sense", requires that there be a reasonable relation between the infringement of the constitutional right and the social advantage  derived from it. This test is also satisfied in the case at hand. Prior to the amendment of the Law, there was a problematic situation as motions to extend detentions beyond nine months would be filed to the Supreme Court, and the Court would grant the motions in cases in which it was clear that the trial was not foreseen to conclude within 90 days. And then, upon the lapse of the 90 days, a motion would again be filed to the Supreme Court, and so forth. In one of these decisions, Justice A. Procaccia elaborated on the need to adjust the Detention Law to the reality of "mega-cases" in which a large number of defendants are indicted together and many witnesses testify. In CrimApp 644/07 The State of Israel v. Natser (February 20, 2007), Justice Procaccia stated:

 

"Section 61 of the Detention Law limited the basic time period for detention until the end of proceedings to nine months, without making any distinction between types of criminal proceedings that are to be adjudicated based on the judicial time that is necessary for their examination. He did not draw a distinction between the types of charges with regard to the complexity of the issue to be decided. Similarly, the period of nine months of detention was applied equally to indictments relating to one or a small number of defendants, and to indictments that include a long list of defendants. Additionally, no distinction was made regarding the duration of the detention for trial purposes, between charges in which it is necessary to have a small number of prosecution witnesses testify and those in which it is necessary to have dozens of witnesses testify. Moreover, Section 61 of the Law did not reflect the judicial time actually required for conducting proceedings that involve large criminal organizations, which by their very nature require investment of extensive resources and judicial time. This provision of the Law does not reflect the deep changes that occurred in the nature of crime in the country as a result of the escalation of the development of criminal organizations and the complexity and severity of their activities, which have greatly increased over the last decade, and which clearly impact the judicial time required to rule in criminal proceedings related to them. The procedural needs in managing complex cases which involve multiple defendants, charges and witnesses, do not generally coincide with the Law's uniform and general determination regarding nine months of detention as a basic period in which the criminal proceeding should be concluded" (paragraph 17 of the decision). See also CrimApp 7738/06 The State of Israel v. Sharon Parinian, paragraph 10 of the decision (October 5, 2006).

 

The Second Arrangement attempts to solve this problem, by providing the Supreme Court judge deliberating the motion to extend the detention the option to choose between a "standard" detention extension, up to 90 days, and a "special" detention extension up to 150 days. The Second Arrangement only allows to do this in special cases in which the Court is convinced that the judicial time required to conclude the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of multiple defendants or multiple witnesses. The Court must be convinced that the proceeding is conducted by the trial court efficiently, and that the detention extension is not requested because of an inefficient conduct of the trial. In my opinion, the combination of these circumstances strikes the proper balance between the infringement of freedom – which no one disputes exists – and the purpose underlying the Second Arrangement.

 

43.The conclusion is that the Second Arrangement complies with the proportionality condition. It follows that the infringement of the right of freedom is proportionate, and the Petitioner's arguments regarding the illegality of the Second Arrangement should be dismissed. In this framework, the indirect attack regarding the legality of the amendment, the arguments for which were presented as part of the hearing regarding the detention extension in CrimApp 4002/11 is also dismissed.

 

Summary

 

44.It emerges from the stated above that both of the arguments presented by the Petitioner in HCJ 2442/11 are to be denied. Procedurally speaking, while we found that the legislative process of the amendments which are the subject of this petition deviated from the provisions of the Knesset By-Laws, the deviation did not constitute a "flaw that goes to the root of the process", which justifies this Court's intervention. On the merits of the amendment, we also rejected the Petitioner's substantive arguments (which are largely identical to the arguments raised in CrimApp 4002/11). We held that the revocation of the right to appeal "in a third instance" while only granting permission to appeal, does not infringe on the right of freedom, although we found that in certain circumstances, which will be determined in each case on its merits, the constitutional right of freedom also extends to the procedural proceedings bound with the exhaustion of the actual right. We further held that the amendment that allows to extend a detention by 150 days infringes on the right of freedom, but this infringement complies with the limitation clause, and is therefore constitutional. The result is that both parts of the petition are denied.

 

45.One methodological note before summation. In the case before us the legislator brought about a change in an existing law. This is not a new law that is meant to address a matter that was not regulated by law. There is no doubt that the amending law discussed in the petition adversely affects, to some degree, the state of suspects and defendants compared to the previous legal situation. However, the mere adverse change does not necessary lead to the conclusion that there is an infringement of a constitutional right or that the amendment does not satisfy the conditions of the limitation clause. We must distinguish between the constitutional threshold and the legal status preceding the amendment to the Law. Indeed, with regard to the two arrangements, the legal status that preceded the amendment set a higher threshold than the constitutional threshold, as suspects and defendants had the right to file a second ("third instance") appeal and the detention extension period was limited to 90 days. However, as emerges from the analyses we presented, the constitutional threshold is lower than the threshold the legislator had set under the arrangement preceding the amendment to the Law. Therefore, the fact that the Law was amended and lowered the legal threshold does not, in and of itself, lead to the conclusion that the constitutional threshold was infringed with the adoption of the amendment to the Law. Graphically speaking, it can be said that when amending the law, the legislator has leeway between the legal threshold prescribed before the amendment (which, as mentioned, was higher than the constitutional threshold) and the constitutional threshold. As long as the amendment to the law did not prescribe a threshold lower than the constitutional threshold, the new arrangement cannot be deemed unconstitutional. In this context we should mention the validity of law clause in the Basic Law: Human Dignity and Liberty (Section 10). This section sets a different threshold: even if the law preceding the Basic Law infringes a constitutional right and does not satisfy the limitation clause, it shall not be deemed invalid (subject to the interpretation of the law the validity of which is preserved under Section 10 of the Basic Law, see the Ganimat Case, pages 375-76, 389-401, 410-417), even if had such law been legislated today, we would have said that the constitutional threshold had been infringed.

 

46.Epilogue. The petition is denied. The constitutional arguments raised in CrimApp 4002/11 are also denied. In the circumstances of the matter – no order for expenses is issued.

 

The President

 

Justice E. Rubinstein

 

a.I agree with the result reached by my colleague the President and with the essence of his legal constitutional analyses, subject to a few remarks. Indeed, this amendment to the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (the Detention Law) is not suited for constitutional judicial review, but in my opinion there is a difference between its two parts. The arrangement amending Section 53 of the Detention Law is an amendment that revokes a most unusual situation compared to other countries and the past in our own country, a situation in which the Supreme Court is required, as of right, to consider a detention as a third instance, as we experienced until recently. In contrast, the arrangement amending Section 62 of the Detention Law is not a simple arrangement, since its implication is an extension of up to 150 days – five months of detention – instead of 90 days, without judicial review, this is not simple at all. Indeed, as my colleague explained (paragraph 42, and as emerges from the explanatory notes to the Criminal Procedure (Enforcement Powers – Detention), Amendment no. 9 (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010, following the recommendation of the Criminal Procedure and Evidence Laws Advisory Committee, headed by this Court's Justice (currently Deputy President) Miriam Naor, Government Bills 5770, 1229-1330 and the words of Justice Procaccia in CrimApp 644/07 The State of Israel v. Natser (February 20, 2007)) – the 150 days arrangement does not exceed the constitutional proportionality test; as it was designated for special cases "in which the Court is convinced that the judicial time required to complete the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of multiple defendants or multiple witnesses.." Legally speaking, I agree with this. However, alongside this I would like to raise a small warning flag and say that I think that in practice, a 150 day extension should certainly be the exception.

 

b.Regarding the matter of extending detentions by a 150 days, I think that it is necessary to distinguish between the authority and its exercise. As mentioned, the authority, in and of itself, is within the boundaries of the constitutional proportionality. See for example Section 5(c) of the Imprisonment of Unlawful Combatants Law, 5762-2002, where judicial review once every six months was prescribed. However, I will admit that when the case at hands relates to the denial of freedom from a person who is presumed innocent, I would tend to allow relatively frequent judicial review, and five months is a long time. Therefore, one must be extremely diligent in complying with all of the conditions of the law as prescribed and the justification in the circumstances, including the conduct in the trial court, in order to grant 150 days. I will add that based on my impression of the decisions handed down by this Court, approximately a half of the motions for 150 days were not granted and 90 days were granted instead, and the vast majority of the remaining ones were by consent. I will not specify so as not to overburden.

 

c.As for the second appeal, that is deliberating the case in a third instance (the amendment of Section 53), it is obviously clear that the right to an appeal in and of itself has a distinguished status (see Section 17 of the Basic Law: The Judiciary, regarding an appeal on a judgment of court in the first instance, which was granted constitutional status; see also Y. Ben Nun and T. Havkin The Civil Appeal (3 ed., 2013) page 35; Y. Mersel "The Right to Appeal or an Appeal as of Right? Section 17 of the Basic Law: The Judiciary and the Essence of an Appeal" The Shlomo Levin Book (2013) 141; the references in my opinion in LCivA 5208/06 Davis v. Malca (June 29, 2006) and in LFamA 8194/08 Anonymous v. Anonymous (December 10, 2008)). However, in the matter of a third instance I will add a few short words from the “field”. The third instance appeal as of right in Section 53 was first legislated in the during the period in which the entire Detention Law was legislated, meaning, a short while after the Basic Law: Human Dignity and Liberty was legislated in 1992 and as part of the effort to give it substance; see the review of the legislative history in the explanatory notes to the bill at hand on pages 1328-1329; as it emerges therefrom, in the far past, even an appeal by permission was not an option; the option to request permission was granted in 1988, and in 1996 it became a right. Amendment no. 8 of the Detention Law transpired in light of the lessons learned by the Criminal Procedure and Evidence Law Advisory Committee, headed by Justice Naor, lessons which all of us at this Court have shared. I will quote from my words in CrimApp 6003/11 Taha v. The State of Israel (August 18, 2011):

 

"The legislator decided that this Court, given the workload it carries, cannot continue with what it has been doing for years, and which clearly has moral value, in light of the presumption of innocence and the essence of the detention – denying freedom, that is - allowing third instance appeals as of right. This, I believe, is unique to this Court compared to fellow courts in democratic states, many of which (see the United States, Britain and Canada) only address appeals by permission. When I have told a Supreme Court judge from these countries of the number of cases we have per year (currently approximately 10,000 cases and a few years ago up to approximately 12,000 cases per year) compared to theirs (80 per year), and that each detention has an appeal as of right to this Court – he became sympathetic or anxious. This does not mean that the door has been locked for cases that should be permitted to appeal to this Court as a third instance, and the legislator left this open to be developed by case law; for a review of current case law see the decision of Justice Amit in CrimApp 5702/11 Tzofi v. The State of Israel (August 8, 2011)."

 

d.It appears that there is no dispute, and it is common sense, with all due sensitivity to the denial of freedom which results from the detention of a person who is presumed innocent, and that it is not feasible in the long term to have the public resources to deliberate this as of right in three judicial levels. Until the amendment "Israel had something that did not exist in any nation, a right to a detention being heard in two appellate instances …" (CrimApp 3932/12 Elafifi v. The State of Israel (June 3, 2012)). Changing this does not contradict the approach that the right to appeal is a constitutional right of some degree or another. Indeed, in practicality, those night and Sabbath eve and afternoon hearings of appeals as of right regarding "detention days" (detention for interrogation purposes), of which we had our share over the years, hardly exist anymore. Permission to appeal in a third instance is granted scarcely. In this sense, the legislator reinstated "reasonable normalcy", taking into consideration that there already is one appeal as of right, as prescribed. Upon review of my colleague Justice Melcer's remarks, with which I agree, I also noticed that the "right of the option to request permission to appeal" which he addresses, can also be found in this Court's customary practice. In contrast, for example, to the United States, where the denial of a motion for permission to appeal, is summarized in the words "cert denied" – in Israel the denial of such a motion is well reasoned and in great detail.

 

e.As said, I concur with my colleague the President.

 

Justice

Justice H. Melcer

 

I agree with the comprehensive and meticulous judgment of my colleague, President A. Grunis, and with the emphases of my colleague, Justice E. Rubinstein.

 

In light of the importance of the distinctions that arose in this case, I allow myself to add two insights:

 

(a)Alongside the right to appeal – the option to request permission to appeal is also a right, however narrower than the former. It follows that the second alternative – requesting permission to appeal – can be seen as a means of review of the decision which is the subject of the request, and this is sufficient after the initial constitutional right to appeal has been exhausted. A similar approach and development can also be found in comparative law - see for example:

 

In the Unites States: Jonathan Sternberg, Deciding Not to Decide: The Judiciary Act of 1925 and the Discretionary Court, 33 J. SUP. CT. HIST 1 (2008).

 

In Canada: R v Gardiner [1982] 2 S.C.R. 368 ;

Bora Laskin, The Role and Functions of Final Appellant Courts: The Supreme Court of Canada, 53 CAN. BAR REV. 469, 471 (1975).

 

In Australia: Smith Kline & French Laboratories (Australia) Ltd. v Commonwealth (1991) 173 CLR 194;

David Solomon, Controlling the High Court’s Agenda, 23 U.W AUSTL. L. REV. 33 (1993);

Sir Anthony Mason, The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to Appeal, 15 U. TAS. L. REV. 1 (1996);

Marrie Kennedy, Applications for Special Leave to the High Court 1 High Ct. Q. Rev. 1 (2005);

 

See also: John Anthony Jolowicz, Appeal and Review in Comparative Law: Similarities Differences and Purposes 15 MELB. U. L. REV 618. (1986)

 

In this context,  remember that in contrast to the motion for permission to appeal, in our country's legal system there are certain situations in which even this limited right (to motion for permission to appeal) is denied (even if only during the trial) – see: Sections 41(c)(1) and 52(c)(1) of the Courts (Consolidated Version) Law, 5744-1984. The Courts (Types of Decisions for which Permission to Appeal shall not be Granted) Order, 5769-2009. This is the law with regard to most interim decisions in criminal proceedings. See: the President's decision in LCivA 3783/13 I.D.B Development Company Ltd. v. Shamia (June 5, 2013). The difference in the case at hand requires further consideration.

 

(b)The arrangement amending Section 62 of the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996, that allows a Supreme Court judge to extend detention up to 150 days, in certain given cases – is within the framework of the "statutory leeway" (also referred to as the "boundaries of proportionality"), albeit, in my opinion, it is situated at the "far end" of such boundaries. It follows that constitutional relief should not be granted, since intervention of such nature in such circumstances is reserved only to the most extraordinary cases, and this is not the case here. See: HCJ 1661/05 Hof Azza Regional Council v. The Prime Minister, PD 59(2) 481 (2005); my judgment in HCJ 6784/06 Major Shlitner v. The Director of Pension Payments (January 12, 2011).

 

The appropriate remedy in such cases is judicial restraint in exercising the authority, and this is indeed how we act.

 

                                                                                          Justice

 

It was decided as stated in President A. Grunis' Judgment

 

Given today, 18th of Tamuz, 5773 (June 26, 2013).

 

 

The President                          Justice                                     Justice

Lahisse v. Minister of Defense

Case/docket number: 
HCJ 27/48
Date Decided: 
Sunday, February 1, 1959
Decision Type: 
Original
Abstract: 

An officer in the Israel Army was charged before a military court in Israel with murder, an offence under S. 214(b) of the Criminal Code Ordinance 1936 and section 97 of the Army Code 1948. The officer submitted that the military court had no jurisdiction inasmuch as the acts with which he was charged were alleged to have been committed in Hula, a village in Lebanon, and outside the borders of either Israel, or Palestine as constituted under the Mandate. This submission was rejected, but the case was stood over to allow him to petition the High Court on the question of jurisdiction.

               

Upon the hearing of the petition it was argued, in addition to a submission of no jurisdiction in the military court, that only that Court had jurisdiction to interpret the Army Code.

 

Held, rejecting the petition, that where a criminal offence is committed by an army officer beyond the borders of Israel, he may be tried by a military court under the Army Code:

 

A person charged before a military court who alleges that that court is without jurisdiction, may petition the High Court without awaiting the decision of the military court:

 

The High Court may interpret the Army Code, the military court having no exclusive jurisdiction to interpret that Code :

 

The military court has jurisdiction to try a case such as the present in accordance with Article 38 (as amended) of the Palestine Order in Council, read together with Section 3(b) of the Criminal Code Ordinance 1936 and section 3 of the Army Code.

 
Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

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.

 

1) The learned judge gives a citation from an early edition.

1) See supra p. 132.

1) Army Code, S. 34:

Panel of Judges.

34. The Minister of Defence shall appoint, and ensure that there will always be appointed by him, Judges of the Supreme Tribunal of no less than twenty-one in number and that among the Judges there will be at least two from each commanding rank in the Army except the Chief of Staff.

 

 

1) Army Code, S. 36:

Three or five judges to sit in every case

36. In every case there will sit three or five judges, as may be decided by the President of the Tribunal in each instance, and they shall be appointed thereto from among the Judges of the Supreme Tribunal by the Presidency of the Tribunal, and one of them shall be appointed by it to act as president of the tribunal.

 

1) Ottoman Law of Criminal Procedure, S. 5:

Every Ottoman who has committed outside the territory of the Empire a crime against the safety of the Empire or the crime of forgery of State seals, of legal currency, of any kind of Government titles, of bonds, of treasury bills and of bank notes authorised by the law may be prosecuted and convicted of such offence in accordance with the Ottoman Law if he has not already been convicted therefore in a foreign country.

(Note: The Law was repealed - as regards Israel - in 1955).

1) Meaning literally the 'land of Israel'. This is the Hebrew for Palestine.

Almaliach v. State

Case/docket number: 
CrimA 149/12
Date Decided: 
Monday, September 24, 2012
Decision Type: 
Appellate
Abstract: 

 

Facts: The appellant was convicted of the crimes of carrying a weapon, intimidation, and possession of stolen property. The indictment charged that in the early morning hours of December 2, 2006, in the city of Ashdod, the appellant carried a stolen grenade into a building in which the Biton family resided, and then taped the grenade to a piece of cardboard which he then taped to the Biton family‘s front door, leaving a string tied to the grenade‘s safety mechanism. He ran away after a family member woke up and opened the door. The indictment was based on DNA evidence linking the appellant to the crime, through DNA traces found on the adhesive tape used in the taping of the grenade to the door. The appellant was sentenced to 24 months in prison plus a one-year suspended sentence, and was ordered to pay compensation to the family member who had been woken by the noise. The appellant submitted an appeal claiming that his conviction was improper in that it was based only on the analysis of the DNA traces found on the main exhibit in the case, without any additional corroborating evidence. The appeal was also based on the fact that the indictment was brought two years after the initial incident, leading to an unjust impairment of the appellant‘s ability to prepare a  defense. Finally the appellant challenged the sentence imposed by the district court, arguing that it was not commensurate with the offense committed.

 

Held: A defendant can be convicted solely on the basis of DNA evidence, but such a conviction should only be permitted in exceptional cases and substantial care must be taken when DNA evidence is the sole evidence presented by the prosecution. The appellant's conviction meets the standards to be applied with regard to such exclusive DNA evidence. An analogy can be drawn between DNA evidence and fingerprint evidence, in that both types of evidence can identify an offender based on scientific data that are unique to each person. With regard to both types of evidence, inferences must be drawn in order to determine the needed facts, and the court reaches its conclusion regarding the reasonableness of such inferences on the basis of expert testimony presented to the court. However, exclusive reliance on DNA evidence presents a higher possibility of wrongful incrimination than fingerprints because DNA evidence can be collected from a wider range of sources (e.g. from skin cells, saliva, or blood, etc.) and the cells from which DNA evidence is produced are more mobile than fingerprints. The court must consider the propriety of the methods with which the DNA was collected and examined, the degree of certainty of the analysis, the nature of the DNA that was found and its location and what these factors indicate, and the defendant's explanation and evidence for a reasonable and exonerating version of the events. Finally, all the elements of the crime must be proven in order for the DNA evidence to be an acceptable as the basis for a conviction. In this case, the totality of the DNA evidence, combined with the nature of the item on which it was found (adhesive tape) and the insufficiency of the appellant's explanations of how his DNA came to be on the tape, lead to only one logical conclusion – that the appellant committed the crime of which he was accused. The court noted as well that the two year delay between the incident and the appellant‘s questioning – although it did impair his ability to defend himself – was not the result of any defect in police procedures or conduct, and therefore did not conflict substantively with the principles of justice and fairness. Finally, the court found that the sentence was appropriate in light of the high risk presented by the use and possession of the particular weapon as well as the appellant's prior criminal record.

 

Voting Justices: 
Primary Author
majority opinion
majority opinion
Author
concurrence
Full text of the opinion: 

Justice E. Arbel

 

JUDGMENT

 

This is an appeal of the judgment of the Beersheba District Court (Hon. Judge Dafna Avnieli) in CrimC 8047/09, dated 23 November 2011, in which the appellant was convicted of the offenses of carrying a weapon, intimidation and possession of suspected stolen property. The focus of the appeal is the question of whether a defendant can be convicted solely on the basis of DNA evidence.

Indictment

1.            According to the facts presented in the indictment, at around 4:20 a.m. on 2 December 2006, the appellant took a fragmentation grenade that had been stolen from the security forces and approached the home of the Biton family in Ashdod. When he arrived at the apartment, he taped the grenade to a piece of cardboard with thick adhesive tape and taped the cardboard to the door of the apartment, leaving a string tied to the safety mechanism. The family‘s daughter, Reut Biton, who was sleeping in the apartment at the time, was woken by noises coming from the direction of the front door and went to the door. When she opened the door, the appellant ran away and left the grenade attached to the door. For these acts, the appellant was indicted for the crimes of carrying a weapon pursuant to s. 144b of the Penal Code, 5737- 1977 (hereinafter: ―the Law‖), intimidation pursuant to s. 192 of the Law and possession of suspected stolen property, pursuant to s. 413 of the Law.

The district court’s judgment

2.            The appellant‘s  conviction was  based on DNA  evidence that  was found on the strip of adhesive tape that had been used to affix the grenade to the piece of cardboard and to attach the piece of cardboard to the door of the apartment. The district court accepted all the findings in the opinion submitted   by   the   prosecution   expert,   Police   Superintendent Avraham, of the National Police Headquarters Forensic Biology Laboratory (hereinafter, ―the Expert‖ or ―the Prosecution Expert‖). The opinion stated that the genetic profile produced from two separate sectors on the strip of adhesive tape (1A and 1C), and from a piece of a glove (1E) and from a hair (18D) – both found inside the strip of adhesive tape – matched the appellant‘s genetic profile, with a margin of error of less than one in a billion.

3.            The district court rejected defense counsel‘s arguments against these findings. Thus, it was argued that the result obtained from Sector 1A of the roll of adhesive tape was inconclusive, since on one locus in Sector 1A, the sample contained a foreign allele – one that did not come from the appellant. The court noted that there was no professional certification presented to support the defense counsel‘s argument; the court therefore accepted the position of the Prosecution Expert that this was an unequivocal result and that the genetic profile could be considered ―clean‖ for the purpose of a statistical calculation.

4.            The district court also rejected arguments regarding the Prosecution Expert‘s professional abilities. It had been argued, inter alia, that statistical calculation was not within the Expert‘s area of expertise, and that her opinion, which made reference to statistical components, was therefore meaningless. The court found that the Prosecution Expert‘s opinion was supplemented by  the  testimony of  Professor  Uzi Motero  of  the  Hebrew University of Jerusalem, who guided the Expert in her statistical calculations, and that this supplementation created a presumption of propriety – which the defense counsel had sought to refute. It was also noted in this regard that the appellant had chosen not to present his own expert witnesses to refute either Professor Motero‘s statistical explanations or the Prosecution Expert‘s opinion concerning the biological evidence.

5.            The court also rejected claims relating to the procedure followed in collecting the evidence, and held that there was no fault to be found with respect to that collection or with respect to the chain of evidence – beginning with the removal of the cardboard with the taped grenade from the apartment door, through the transfer of that evidence to the appropriate parties, and concluding with its analysis in various police laboratories. In particular, the court rejected the appellant‘s argument that the piece of the glove on which the appellant‘s DNA was found had been stuck to the strip of adhesive tape at some point during its transfer from the crime scene to the biological evidence laboratory. The court held that although the glove was not visible in the photographs taken at the crime scene, it was reasonably likely that the piece of glove had been stuck between the many layers of the strip of adhesive tape, such that it could not be seen even when viewed close up, and that it was discovered only after the tape was peeled open. Alternatively, it could be that it was stuck to the back part of the Exhibit (the adhesive tape) which had been used to attach the grenade to the piece of cardboard – and that this was why the policemen at the site did not notice it. The court added that DNA samples were taken from the policemen who were at the scene in order to rule out the possibility that the glove had been torn off from a glove worn by a policeman. The results indicated that none of them matched the genetic profile produced by the examination of the piece of the glove.

6.            The appellant‘s explanations of how his DNA was found at the scene were rejected as well. When questioned at the police station and in court, he denied any connection to the incident, claimed that he did not know the owner of the apartment on the door of which the grenade had been taped. He suggested various possible explanations for the presence of his DNA on the tape: that someone had taken the strip of adhesive tape from the counter of the convenience store in which he worked at the time, or that it had been taken from his car. The court rejected these suggestions on the grounds that they were hypothetical and far-fetched and did not cast doubt on the appellant‘s culpability, taking into account the fact that a roll of adhesive tape is an inexpensive and simple product, and that it is not likely that a person would take it from someone else to be re-used.

7.            The appellant‘s attempt to mount a defense based on principles of justice (in connection with the relatively lengthy period of time between the incident and the arrest) was also unsuccessful. The defense counsel argued that because the appellant needed to provide explanations long after the occurrence of the incident, the ability to present a defense had been impaired. Nevertheless, the court found that the police had not been complacent during the interim, and that it had used all available means to investigate every possible suspect in the case. Thus, the court held, the time aspect did not work in favor of the appellant, and the principles of justice doctrine did not apply in his case.

8.            Ultimately, the forensic findings tying the appellant to the crime, along with the appellant‘s weak explanations for the discovery of his DNA at the site, led the district court to the conclusion that the appellant had carried the grenade and taped it to the door of the Biton family‘s apartment; that the taping of the grenade was done with the intention of intimidating the members of that household; and that the appellant must have suspected that

 

 

 

 

 

6              Israel Law Reports                           [2010] IsrLR 6 Justice E. Arbel

the grenade was stolen, since a fragmentation grenade is not a product that can be purchased lawfully. Based on all of the above, the district court convicted the appellant of the crimes with which he had been charged in the indictment.

9.            In its sentencing, the district court noted the severity of the crimes and surveyed, at length, the trends that are generally being followed in connection with sentencing for crimes involving weapons. It was noted that it was extremely fortunate that the criminal objective was not achieved, and that the grenade did not explode. The district court added that although the appellant had the right to continue his trial until its ultimate conclusion and to persist in his claim that he did not commit the crime attributed to him, the fact that he did so indicated that he had not internalized the severity of his actions. In addition, the court noted that it was aware of other cases in which defendants had been convicted of similar crimes, but had not been subjected to the full power of the law and received lighter sentences. In light of all this, the court sentenced the appellant to 24 months in prison and twelve months of a suspended sentence, and ordered the appellant to pay compensation to Reut Biton in the amount of NIS 2,500.

The appellant’s arguments

10.          The appellant argued that there were various flaws in the chain of evidence and attacked the findings in the Prosecution Expert‘s opinion. The appellant‘s main argument in this context was that it had not been proven that the piece of glove on which his DNA was found was originally part of the Exhibit. The claim was based on the fact that the forensic investigators who photographed, took apart and packaged the Exhibit had not seen a glove at the crime scene. Therefore, the appellant reasoned that no weight should be given to this piece of evidence. Another argument made was that the hair on which the appellant‘s DNA was found was brought to the laboratory for testing only after the appellant was arrested, some two years after the incident had taken place – while the respondent had nevertheless presented the evidence to the district court as if the DNA that was found on the hair as well as the DNA on the strip of adhesive tape and on the glove were all found and examined at the same time. Regarding the findings in the Expert‘s opinion, the appellant argued that they were not conclusive, and that traces of DNA that did not belong to the appellant were found in some of the samples – an indication of the involvement of others in the criminal act. For these reasons, the appellant argued that the Expert‘s opinion submitted by the respondent was poorly grounded and could not be used as the basis for his conviction.

 

 

 

 

 

CrimA 149/12     Almaliach v. State of Israel           7

 

 

 

11.          The appellant further argued that a conviction cannot be based solely on DNA evidence when there is no other evidence supporting the conviction. According to his argument, the courts have always referred to additional evidence tying the defendant to the crime, in addition to any DNA findings.

12.          He further argued that his explanation for the presence of his DNA on the objects at the crime scene was reasonable, and that it raised reasonable doubt about his culpability. He insisted that it was indeed possible that the roll of adhesive tape was taken from the convenience store where he worked at the time, or that someone took the roll from his car. He also stressed that adhesive tape is a portable object and can easily be transferred from one person to another. In addition, he suggested that there were other possible suspects who may have committed the crime, and that these included the apartment owner‘s creditors – who were also prosecuted for intimidating the apartment owner.

13.          Finally, the appellant argued that he was entitled to raise a defense based on principles of justice, in light of the amount of time that passed between the incident and his questioning by the police – a length of time which affected his ability to present an alibi. He further argued in this context that the police who questioned him did not inform him that the incident had occurred on a Friday night, and that had he known this, he could have ruled out his involvement easily, because he is a Sabbath observer.

14.          Regarding the sentencing, he argued that the court was overly harsh with him, and that the sentence imposed went beyond the threshold for punitive measures established in the case law for such crimes, and that the court decisions on which the sentencing had been based involved factual situations that could not be compared to the circumstances of this case. He further argued that the district court was fundamentally mistaken in finding that his intention was to explode the grenade, and that this finding contradicted the holding in the decision itself – that his intention had been to intimidate the members of the household. For these reasons and others, the appellant argued that his sentence should be reduced.

Respondent’s arguments

15.          The respondent argued that the appellant‘s claims regarding the alleged defects in the Prosecution Expert‘s opinion and the professionalism of the author of that opinion were baseless. According to the respondent, the appellant‘s arguments, which were not supported by a countering expert opinion, were extremely flimsy in comparison to the position taken by the Prosecution Expert – a position reinforced by Professor Motero‘s testimony. With respect to the allegations concerning the defective handling of the chain of evidence, the respondent argued that these were nonspecific claims that lacked any evidentiary foundation; all the exhibits and the reports produced by the parties who were in contact with the Exhibit were submitted to the district court, and these indicated that the laboratory personnel had indeed noticed the hairs on the strip of adhesive tape when the Exhibit was first transferred to the fiber and polymer laboratory, but that the hairs were not examined at the time of the event in accordance with standard police and forensic identification procedures. There is no basis for the claim that the hairs were found only shortly after the appellant‘s arrest. Regarding the glove, the respondent relied on the district court‘s holdings and emphasized that the possibility that the glove came from one of the policemen who handled the crime scene had been investigated and ruled out.

16.          The respondent further argued that there is no obstacle preventing the conviction of a defendant on the basis of DNA evidence alone. According to the respondent, DNA evidence is no different than any other ―traditional‖ circumstantial or scientific evidence. The respondent argued that an analogy can be drawn between this issue and the rule that applies to fingerprints; the rule regarding fingerprints is that in certain circumstances, a defendant‘s fingerprint could suffice to allow for the defendant‘s conviction – when there is no reasonable explanation from the defendant as to why his or her fingerprints were found at the site. The respondent argued that the case before us is a clear example of the type of case in which a conviction on the basis of DNA alone is possible, since the DNA evidence consists of more than a single piece of evidence taken from a single segment of a relevant exhibit, and is comprised instead of several pieces of DNA evidence, produced from various sources, all of which are components of the Exhibit.

17.          The respondent further argued that the explanations given by the appellant for the presence of his DNA on the Exhibit are not plausible. The respondent relied on the reasons given by the district court in this case; it added that the appellant‘s explanations were inconsistent with the location of the findings on the Exhibit, and with the various sources from which the DNA was produced, and especially with the piece of the glove – which on its own provided an evidentiary foundation that, according to the respondent, sufficed to incriminate the appellant.

18.          Regarding the appellant‘s claim relating to principles of justice, the respondent reasserted the holding of the district court – which was that the passage of time between the incident and the arrest does not provide any support for the appellant‘s defense, since his connection to the incident was discovered only after he had been arrested as a suspect in a different case. The respondent also argued that the appellant‘s alibi claim, based on his being a Sabbath observer, must be rejected as it is an argument presented at the last moment – and one that was in any event not proven by any evidence.

19.          Finally, the respondent believes that the sentence imposed on the appellant is proper given the severity of the circumstances of the offense, and that no judicial intervention is needed regarding this matter. The respondent referred to the appellant‘s character, his lifestyle and his serious criminal past, which included a number of earlier convictions for a variety of offenses.

Discussion

20.          I will begin by discussing the general question of whether it is appropriate to base a criminal conviction exclusively on DNA evidence. I note here, at the start, my ultimate conclusion that in the proper circumstances, such a conviction is indeed appropriate. I will therefore turn to the issue of whether the appellant can be convicted of the acts attributed to him on the basis of the DNA evidence that was found at the scene of the crime.

Conviction on the basis of DNA evidence

21.          DNA is a molecule that contains all of a human being‘s genetic information. It is the ―genetic code‖ ingrained in every cell of a person‘s body. The DNA molecule is built of a sequence of approximately three billion units, called ‗bases‘ that are organized into structures called chromosomes, upon which are situated the genes, which govern the expression of a person‘s individual characteristics (phenotype). Each gene (other than those on the gender chromosomes) has two alternative forms, called ‗alleles‘. The permutation of the DNA bases is fixed and identical in each cell of the body (other than in the reproductive cells), and it is unique to each person, such that no two people (other than identical twins) have completely identical DNA sequences in their cells.

22.          A forensic DNA test is based on a comparison of genetic samples, with reference to the frequency of the particular genetic profile within the relevant population. The comparison is not based on the entire DNA sequence; rather, it is based on a sampling relating to several hundred of its component sequences, on the assumption that if identity is found in the sample, the entire sequence will also be identical. When presented in court, DNA evidence will consist of two components that complement each other.

 

 

The first component relates to the degree of conformity between the two genetic samples (the sample found at the crime scene and the sample from the defendant). The second component consists of an estimation of the probability of the particular profile‘s incidence within a particular population. In other words, the DNA evidence will indicate the chance that two different people in the same population will have an identical genetic profile. (For further discussion of the structure of DNA and the manner in which it is examined for forensic purposes, see Y. Plotsky, ―The Weight of DNA Evidence After the Decision in Murad Abu Hamad‖, 30 Medicine & Law 174 (2004); A. Stoler & Y. Plotsky ―DNA on the Witness Stand‖ MEDICINE& LAW, JUBILEE VOLUME (2001), at p. 143; N. Galili & A. Morbach ―DNA Analysis for Forensic Purposes‖ 2 Criminal Law 225 (1991)).

23.          The potential for using DNA analysis as evidence was discussed at length in CrimA 9724/02 Abu Hamad v. State of Israel [1]. The Court, per Justice Cheshin, noted that although DNA analysis is a relatively new form of scientific evidence, it is currently accepted by the scientific community as well as by courts in Israel and in other countries. The Court held that DNA analysis is admissible and proper evidence, which can be accepted without the court needing to reexamine the scientific method on which the analysis is based every time such evidence is presented, Two conditions, however, must be fulfilled for it to be admissible in this way: the main principles of the method and of the examination must be subject to examination and refutation at any time and in any legitimate manner; and it must be proven that the specific analysis that was submitted in the particular case was carried out in accordance with the rules required by the relevant scientific method (Abu- Hamad [1], at para. 20).

24.          Justice Cheshin further noted that DNA analysis had not yet been used as the sole evidence supporting a conviction, and that a review of the case law indicated that the courts have always required additional evidence. In the Abu-Hamad [1] case as well, there was additional evidence beside the DNA evidence – evidence that tied the defendant to the commission of the crime. Nevertheless, Justice Cheshin stated his belief that:

‗A DNA analysis indicating a high statistical probability (without deciding here the actual level of probability that will be considered to be sufficiently high) should be treated in the same manner as fingerprint evidence. And in the absence of a reasonable explanation – one that might raise doubt in the mind of the court with regard to the defendant‘s guilt – a defendant may be convicted on the basis of such evidence alone.‘ (Abu-Hamad [1], at para. 35. See also Justice Turkel‘s position, at para. 2 of his opinion in the instant case).

(It should be noted that a petition for a rehearing was filed with respect to the decision in Abu-Hamad [1], and it was rejected by Justice Mazza – CrimFH 9903/03 Abu-Hamad v. State of Israel [2]).

25.          Justice Procaccia took a similar position in a different case:

‗As is the rule with respect to fingerprints, DNA analysis that ties a defendant to the scene of the crime with a very high likelihood of identification can, under certain conditions, serve as a sufficient basis for a conviction, in the absence of a reasonable explanation from the defendant regarding his presence at the site at the time when it is estimated that the crime was committed‘ (CrimA 10365/08 Aliaswi v. State of Israel [3], at para. 9).

26.          On the other hand, Justice Naor took a different position – that DNA findings cannot by themselves provide a sufficient basis for the conviction of a defendant and that additional evidentiary support is required (CrimA 1132/10 State of Israel v. Anonymous [4]), at para. 35-38). It appears  that this holding was based in large part on the specific circumstances of that case, which I will discuss at length below.

27.          In my view, a defendant can be convicted on the basis of DNA evidence alone, under certain circumstances. I also believe that an analogy can be drawn to the rule that we follow with respect to fingerprint evidence (subject to my comments on the subject below). That rule is that a criminal conviction can be based on fingerprint evidence as a single piece of evidence, so long as none of the evidence presented in court provides an ―innocent‖ explanation for the fingerprint that was found at the site – to a degree that creates a reasonable doubt regarding the defendant‘s guilt. (See, for example, CrimA 2132/04 Kase v. State of Israel [5], per Justice Procaccia, at para. 14; CrimA 4471/03 State of Israel v. Krispin [6] , at p. 285, and the references cited there).

28.          Like a fingerprint, DNA evidence is also scientific and circumstantial evidence that can tie a defendant to the scene of the crime, to the point where the matter of his guilt regarding the commission of the crime can be established. The two types of evidence are both based on a comparison of findings at the crime scene, and an analysis conducted with respect to the defendant. With regard to both types of evidence, the court receives information from experts in the field. Neither type of evidence is immune from human error, either in the collection of the evidence or in the handling of the evidence in the laboratory or elsewhere. Nevertheless, both the scientific and legal communities accept that both types of evidence enjoy a high degree of reliability because of the assumption that a genetic code and fingerprints  are  unique  to  each  and  every  person  (see  A.  Tshernov, ―Scientific Evidence and Witness Testimony in Court, MEDICINE & LAW, JUBILEE VOLUME, (2001) at pp. 177, 179-181). For this reason, both types of evidence have been granted the status of ―sound‖ evidence (Aliaswi [3], per Justice Procaccia, at para. 7; CrimA 9154/04 Hanuka v. State of Israel [7]). Furthermore, there are those who believe that the evidentiary weight of DNA evidence is greater than that of fingerprint evidence (see Plotsky, ―The Weight of DNA Evidence‖, at p. 174; ―in our view, the potential weight of DNA evidence is tens of times greater than the evidentiary weight of a fingerprint, but at this stage, within the existing systems, this potential cannot be realized.‖ (I will discuss below Plotsky‘s argument that this potential cannot be realized).

29.          Alongside the characteristics that the two types of evidence have in common, there is also a difference. The genetic code of a human being is stamped on each cell of his body, while a fingerprint can be found only on a person‘s hand or foot. DNA evidence may therefore be produced from a greater variety of sources (saliva, hair, semen, blood, skin cells, etc.) Furthermore, the sources that contain our genetic codes can easily fall off a person‘s body and ―roll off‖ onto the crime scene. The simplest example is a hair that falls off of a person‘s head and coincidentally falls onto the crime scene. This does not mean that fingerprint evidence is a more incriminatory type of evidence, but rather that given the many possible sources for DNA traces, and given that the cells producing the DNA evidence are themselves highly mobile, there is a greater concern that any DNA evidence found on the scene came to be there as a result of coincidence – as compared to the possibility that the finding of fingerprints at the crime scene would be the result of pure coincidence. When we examine this difference, it appears that even though there is much similarity between the two types of evidence, an exclusive reliance on DNA evidence leads to a greater chance of reliance on evidence that was produced by chance, and thus to the increased possibility that a defendant will be wrongly incriminated. This difference will have consequences for the range of circumstances in which we will permit a conviction based solely on DNA evidence.

30.          Thus, my position is that as a matter of principle, there is no impediment preventing the conviction of a defendant on the basis of DNA evidence; I therefore do not believe that we should establish a sweeping rule prohibiting such convictions. However, just as it would not be appropriate to establish a blanket prohibition, it would also be inappropriate to issue a sweeping approval for such convictions. A conviction which is based only on DNA evidence should be permitted only in exceptional cases, with each case being examined on its own terms, subject to its particular set of circumstances. Substantial care must be taken when reaching a decision to convict on the basis of such evidence, and a court must do so only with trepidation, given that the entire decision rests on a single piece of evidence (compare CrimA 10360/03 Shadid v. State of Israel [8], per Justice Naor, at para. 14).

31.          In examining DNA evidence that is presented as the only evidence in the prosecution‘s case, the court must take note of the procedure followed in carrying out the examination that produced the relevant DNA findings – meaning that the court must address the question of whether the examination was appropriately carried out and documented by properly trained experts. In this context, Plotsky argues that Israel‘s crime scene identification laboratories have no standards requiring a supervisory mechanism for the execution of DNA tests and that it is therefore impossible for a court to determine whether the testing was done properly. He therefore believes that at present, the full evidentiary potential of DNA evidence cannot be utilized, and that the courts cannot, consequently, convict a defendant on the basis of this type of evidence alone (see Plotsky, The Weight of DNA Evidence, supra, at pp. 178-179). This is a criticism of which the legislature and the enforcement authorities should certainly take note. To the extent that the Israel Police does not have guidelines regarding the manner in which DNA tests are to be carried out, it should develop clear and organized standards, so that the test results can more easily withstand challenges from defense counsel and from the court. However, the absence of such directives does not impede the defendant‘s right to attempt to point to defects in the manner in which the test was performed, or to attack the prosecution‘s findings – either through a cross-examination of the prosecution‘s experts, through the conduct of independent testing of the samples taken, or through the testimony of the defendant‘s own expert. Thus, the absence of proper guidelines does not in itself prevent the court from using the tools available to it or from deciding an issue which is the subject of a disagreement among experts, in the same way that it decides other issues that are a matter of scientific or professional dispute.

32.          The court must also take note of the substance of the findings and of the critical question of whether they indicate, at the required level of certainty, that the DNA found at the crime scene comes from the defendant. I do not intend to make a final determination of the minimal level of conformity and probability that is required for such, if only because the parties did not present the foundation required for reaching a decision regarding this important question. I will therefore leave the matter open at this point, and it will be resolved in due course. It is sufficient to note here, with all due caution, that it appears that a genetic match at a level of one in one billion is sufficient to establish a person‘s identity (see and compare Justice Cheshin‘s discussion of this matter in Abu Hamad [1], at para. 25, and see also the position taken by Justice Levy in CrimA 4117/06 McCaitan v. State of Israel [9] and in CrimApp 5174/99 Haldi v. State of Israel [10] as examples of cases in which the match found by the prosecution‘s expert was not strong enough to support a conviction.

It is important to emphasize, insofar as it is not automatically understood, that even though expert testimony is required concerning a DNA issue, the experts do not make the ultimate determination that the DNA that was found at the site does in fact belong to the defendant. The experts can testify regarding the probability of the match. But it is the court that determines the identity of the offender, and it must not fail to exercise its authority to make that determination.

33.          In addition to the propriety of the examination and of the findings, the court must also examine the quality of the evidence, including the type of DNA that was found (saliva, semen, blood, etc.) and its location and the number of places from which it was taken – and whether it indicates a particular use or action (semen in a rape victim‘s genital area, blood on the blade of a knife). The court will also look at other factors that may have implications for the probative value of the DNA findings.

34.          We must recall that DNA evidence is circumstantial evidence, and a conviction based on such evidence is possible only when the sole logical conclusion that can be drawn from it is that the defendant is criminally liable (Kase [5], at para. 6, and the sources cited there). That being the case, the weight to be accorded to the evidence and the issue of whether or not a conviction can be based on it will be determined after the court considers the explanation offered by the defendant regarding the presence of his DNA at

the scene of the crime. If the defendant can offer an acceptable explanation or a version of the facts that exonerates him and creates a reasonable doubt regarding his culpability, then he must be acquitted, in accordance with the rule followed with respect to fingerprint evidence.

35.          It must also be recalled that when circumstantial evidence, unlike direct evidence, is presented, we rely on inferences and conclusions regarding the direct facts that must be proven. In cases that are based on this type of evidence, an evidentiary gap may always remain – in which more is hidden than is disclosed. This is even more the case when the entire matter will be decided on the basis of a single form of circumstantial evidence. Therefore, while the DNA can provide a strong link – a link of ―heavy chains‖, as Justice Cheshin wrote in Abu-Hamad [1] – between the defendant and the commission of the crime, the court must still determine whether all the elements of the crime of which the defendant is accused are present. On the other hand, we must also recall that not every doubt arising from the evidentiary material will rule out the possibility of a conviction. A criminal conviction must be based on a proof of guilt beyond any reasonable doubt – not beyond any doubt at all.

36.          Generally, when the court assesses the weight to be given to DNA evidence which is presented as the only evidence in the case, the court must pay attention to the propriety of the DNA examination, the degree of certainty that characterizes the expert‘s findings, the nature of the evidence and the circumstances in which it was found. The court must also take note of the defendant‘s explanations and the possibility that there is a reasonable version of events that exonerates the defendant and which can be supported by the evidence that is before the court.

37.          I will conclude my comments by discussing, briefly, the decision in the case of Anonymous [4], in which Justice Naor held that evidentiary supplementation is required in order to uphold a conviction that has been based on DNA findings. I believe that her holding in that case can be understood, to a great extent, against the background of the specific circumstances of that case. The crime was a sexual assault that was attributed to two defendants acting together – one was accused of raping the complainant; the accusation against the other defendant was that while the rape was occurring, he ―climaxed and ejaculated in the complainant‘s underwear.‖ The defendant who was accused of the rape was acquitted because the version of the facts that he presented, which exonerated him of the crime, was found to be supported by the evidence. In these circumstances, the conviction of the second defendant could not be supported. In any event, as a substantive matter, the only proof that tied the second defendant to the commission of the crime was a forensic opinion; the opinion stated that DNA traces found on the lower part of the complainant‘s dress were a one in one billion match to the defendant‘s profile. However, the totality of the details in that case did not make it possible to base his conviction on this expert opinion at the level of proof required for a criminal conviction: there was no dispute that the two defendants were present near the complainant;  the second defendant confirmed that he had given the complainant a ride and that it was possible that he might have touched her shoulder (a detail which was not itself incriminating); the forensic data presented did not include details as to what kind of DNA had been found (whether it was semen or another type of DNA) and the data did not prove the character or nature of the acts that the defendant committed vis-à-vis the complainant; the complainant did not testify against the second defendant as she had against the first defendant, and she had not incriminated the second defendant at all; the description in the indictment of what he was accused of doing was laconic and did not specify the elements of the crime. It thus appeared that this was a strong example of a matter in which more was hidden than was disclosed, as Justice Naor found as well, and it was therefore not possible to convict the defendant on the basis of the DNA evidence alone. However, in my view, a sweeping rule that no conviction can be based on DNA evidence alone cannot be inferred from that particular case. The fact pattern in that particular case would not, in any event, have satisfied the standards that I outlined above.

I will first discuss the arguments raised by the appellant concerning the flaws in the collection of the evidence, and I will then move on to his arguments regarding the substance of the findings. After that, I will discuss the matter of whether or not the instant case falls within the category of cases in which a conviction can be based on DNA evidence alone. My view is that the evidentiary material presented here indicates that the appellant was indeed the source of the DNA traces that were found; and that under the circumstances of the instant case, we can base the conviction on such evidence exclusively.

39.          Before I turn to an examination of the instant case, I wish to note that an appellate court will not generally intervene in the findings of fact as they have been determined by the trial court, and the reasons for this are well known (see, for example: CrimA 897/12 Salhav v. State of Israel [11] , at para. 30; CrimA 9352/99 Yomtovian v. State of Israel [12] , at pp. 643-645). Nevertheless, when the trial court has no advantage over the appellate court with respect to such findings, the appellate court must subject the trial court‘s findings to its review, and it must reconsider the issues of reasonableness, logic and common sense in connection with the lower court‘s factual determinations (CrimA 347/88 Demjanjuk v. State of Israel [13], at p. 329).

40.          Collection and handling of the evidence

The appellant claims that there were various defects regarding the handling of the evidence. The district court discussed these arguments in detail and I see no cause to interfere with its analysis or with the conclusions that it reached. Thus, for example, I am not convinced by the appellant‘s arguments that there is any reason to doubt the district court‘s conclusion that the piece of the glove came from the Exhibit itself, and that it was not – as the defense counsel claimed – attached to the Exhibit at some point while the Exhibit was being moved from the crime scene to the laboratory. The district court also dealt with the claim that police personnel who reached the scene of the crime did not examine the piece of the glove, and that the glove cannot be seen in the pictures taken at the scene. I find that the possible explanations suggested by the court regarding this issue – such as that the piece of the glove was caught between the many layers of the strip of adhesive tape in a manner that made it difficult to find, or that it was taped to the back of the Exhibit and was therefore located only afterward, in the laboratory – are acceptable arguments. They are even more acceptable in light of the fact that the district court had the opportunity to examine the Exhibit directly. In any event, a single DNA profile was developed from the piece of the glove, and that profile was identical to the profile that was developed from other parts of the piece of tape that were sampled, and which matched the appellant‘s genetic profile. Moreover, if the glove had actually come from one of the policemen who handled the Exhibit, the expectation would be that DNA traces from one of the policemen or at least a mixture of different types of DNA would have been found. A memorandum was submitted to the court (P/40) which ruled out a match between the DNA profile found on the strip of adhesive tape and on the piece of the glove, on the one hand, and the DNA samples taken from the relevant police officers, on the other. I therefore believe that there is no real doubt that the piece of the glove was originally in the Exhibit, and that it was not attached at some point while the Exhibit was being transferred from the crime scene to the laboratory.

41.          There is also no reason to interfere with the trial court‘s findings regarding the hair. The proofs presented (P/15, P/17 and P/18) all indicate that the hairs that were found on the Exhibit were discovered when the Exhibit was received at the fiber and polymer laboratory, shortly after the incident – however, they were only examined after a match had been found between the appellant‘s genetic profile and the DNA on the strip of tape and on the glove, which was some two years after the incident. The respondent explained that in light of the findings derived from the DNA testing at the biological laboratory, there was no need to examine the hairs. In other words, once there was no match between the DNA on the adhesive tape and on the glove and the samples taken from the suspects who had been questioned shortly after the incident, there was no need to examine the hairs, until the match to the appellant‘s sample was found, accidentally. I would add that the district court‘s decision indicates that the court was aware that the hairs had been sampled at a later time. Thus, even if, as the appellant claims, a representation was made to the trial court that all the findings from the crime scene had been discovered and examined at the same time, the court was not

―fooled‖ and there is therefore no need to examine the relevance of the said representation, insofar as there is any such relevance.

The forensic findings

42.          In this context, the appellant‘s counsel relied heavily on the unprofessionalism of the Prosecution‘s Expert and the consequent defects of the findings presented in her opinion. He argued, inter alia, that the statistical calculations included in the opinion are not within her area of expertise, and that the fact that she referred to the piece of the glove as being part of the adhesive tape testifies to her lack of professionalism. Here as well I accept the reasoned findings of the district court, and I will only address some of the appellant‘s claims. The appellant pointed to the fact that the Expert‘s first assessment regarding the profile obtained from the Exhibit was refuted in her later opinion. According to him, since she was mistaken in her first assessment, none of her findings in her later opinion may be relied upon either. This argument is baseless. Indeed, a memorandum prepared by Investigator Kapuza shortly after the event (P/40) indicates that the Expert had proposed to him that the profile produced from the Exhibit was similar to that of a suspect in the case, and that it was possible that the source for the DNA in the profile was one of the suspect‘s relatives. However, this conclusion was refuted after the relatives were called in for the required testing and no DNA matches were found. We are therefore dealing with what was only a very preliminary assessment – one that was never supported by an official written and organized opinion (a fact that was also indicated in the Expert‘s opinion); this assessment was indeed refuted when a more exact and scientific examination was conducted. But this has no implications for the findings that were obtained regarding the appellant in the later scientific testing, which the appellant was unable to challenge successfully, as will be explained below.

43.          The appellant also attacked the Expert‘s professionalism, charging that she is not familiar with the type of examinations that are carried out in Israel in the field of genetic identification. He based this conclusion on the fact that she stated in her testimony that the customary procedure at the Israel Police is based on an examination of only ten loci, in addition to the locus relating to gender, and that there is no facility in Israel that allows for the examination of 17 loci. (As noted, the loci are composed of the chromosomes of the DNA molecules). The Expert‘s declaration conflicts, apparently, with the testimony of Professor Motero, according to which it is possible, in Israel, to carry out an examination of 20 loci. It is agreed that the more loci that are examined, the more accurate the result will be. I agree with the district court regarding this matter as well. First, the answers given by the Expert and by Professor Motero indicate that at the Israeli Police, specifically, the norm is to examine sets of ten loci each. Professor Motero added that within other entities there are systems that  allow for the  examination of  20 loci; an example would be Hadassah Hospital. I do not believe that this matter reveals a lack of expertise or professionalism on the part of the Expert. Second, the Expert is not responsible for the fact that the Israeli Police uses a particular system for DNA examinations. This is not a matter that is up to her personal choice, and thus an argument based on this aspect should be addressed to the police and not personally to the Expert. Third, to the extent that the appellant tried to minimize the level of accuracy of the examinations carried out on the basis of the number of loci that were checked – the expectation would be that this line of argument would have been supported by an opinion based on an examination of more than 10 loci, which it was not. In any event, I note that Professor Motero stated in his testimony that although an examination of more than a specific number of loci will lead to a difference in the statistical calculation, this difference is not relevant, given the size of the Israeli population. The appellant was unable to refute this argument either.

44.          The appellant also attacked the substance of the findings. For the purpose of this discussion, we must again specify, at length, the findings of the Prosecution Expert, which, as stated, the district court adopted in full. In her opinion dated 24 February 2009, the Expert sampled five loci on the strip of adhesive tape (marked as 1A through 1E), with area 1E referring to the piece of the glove attached to the adhesive tape. She found that the DNA profiles produced from three of these sites – 1A, 1C and 1E (the glove) – were identical and matched the appellant‘s DNA profile, and that based on a statistical measurement and after a statistical correction, the appellant‘s DNA was a match to the profile of only one in more than one billion individuals. Thus, the likelihood that the DNA that was found belongs to anyone other than the appellant was only one in a billion, within the Israeli population. With regard to area 1B, the Expert noted that the DNA found represented a mixture of material from more than two individuals, and that it was not possible to rule out the appellant‘s contribution to that mixture. In Area 1D, the genetic material found was not of a sufficient quality to allow for testing (see P/32). In an additional opinion dated 18 March 2009 (P/28), the Expert examined four hairs located within the strip of adhesive tape. She found that one of the hairs, marked 18D, produced a DNA profile – in eight of the ten loci that were examined and in the gender identification locus – that matched the appellant‘s DNA profile. (No result at all was obtained at the other two loci). Here as well, the appellant‘s DNA profile was a one in a billion match to the profile that was found. In the other regions that were sampled in this opinion, the genetic material that was found was not sufficient to allow for testing.

To sum up  this issue, the Expert determined that the genetic profile produced by the two sites on the strip of adhesive tape (1A and 1C), from the piece of the glove (1E) and from the hair (18D) is a match to the appellant‘s profile, to a degree of certainty of more than a billion to one. These findings were supported, from a statistical perspective, in Professor Motero‘s opinion and in his testimony.

45.          The appellant claims that these results are not ―clean‖ or unequivocal enough to tie the DNA findings to him. He points to the fact that according to the opinion, none of the examined regions produced a complete match to his genetic profile. Thus, for example, in region 1A there was a sample of a foreign allele, the source of which could have come from an instrument or another person, and in region 18D there was a match in only eight out of ten loci. Furthermore, according to him, the fact that the DNA mixture comes from several persons weakens the court‘s conclusion that he committed the crime.

46.          I cannot accept these arguments. The district court examined, in depth, the results that were received in each region; it reviewed each of the appellant‘s claims, and decided to adopt the respondent‘s findings. Indeed, the evidence presented to the district court, the main part of which was the Prosecution Experts‘ opinions and testimonies, provides sufficient support for the conclusion that the DNA traces found on the Exhibit belong to the appellant. The Prosecution Expert testified that she was not satisfied with relying only on the match between the DNA on the Exhibit and the appellant‘s DNA that was already in the police database from a different case

– instead she asked to take another sample from the appellant in order to eliminate the possibility of human error and to verify the result in accordance with the laboratory‘s guidelines, as is also indicated in the documents in the Exhibits file (P/35). In her testimony, she expressed her opinion that the results obtained were unequivocal and that the genetic profile obtained could be viewed as ―clean‖ for purposes of a statistical calculation (see pp. 22-23 of the trial transcript, from 7 December 2009). In response to the district court‘s question as to whether in her view her submitted opinion was complete, she answered that it was, and explained the reasons for this position (p. 24 of the trial transcript, from 7 December 2009). She also explained the significance of the partial matches that had been obtained. She noted, with regard to region 1C, for example, in which a DNA profile was produced from nine out of ten loci, that this was not a situation in which one of the loci produced a profile that did not match the appellant‘s profile, which would have led to the entire finding being disregarded because of the non-match; it was instead a situation in which no result was found in some of the loci, while a full match was found in the other loci.

47.          Professor Motero supplemented her remarks by discussing the statistical aspect, noting that according to the data that had been obtained, the likelihood that the DNA traces belong to anyone other than the appellant was one in more than a billion. In particular, he referred in his testimony to the probability with respect to region 1E (the glove) and stated that there the likelihood of a mismatch was 1:7,638 billion within the Jewish Israeli population (see p. 7 of the trial transcript, from 12 April 2010). (This is a probability comparable to that found in Abu Hamad [1]). Using a statistical calculation that included a theta correction (a correction which compensates for, inter alia, the possibility of marriages between relatives within the sub- population to which the profiled person belongs), the probability of a mismatch was found to be 1:1,255 billion. Professor Motero testified that these two probabilities meant that a mismatch was ―not within the realm of possibilities‖ (see p. 9 of the trial transcript, from 12 April 2010). It should also be noted that although Professor Motero repeated that there was no need for a theta correction in this case, since the appellant does not belong to a sub-group in which there are marriages between relatives, or to any sub- group that is not properly represented in the database (such as Ethiopians and Bedouins), the district court based its decision on the probability that favored the appellant (i.e., that of 1:1,255 billion).

48.          Furthermore, it should be noted that in region 1E – the piece of the glove – there was a match for all ten loci; it was thus, undoubtedly,  a complete match, as the district court wrote. This is a detail that the appellant has chosen not to discuss, and it weakens his arguments against the other findings considerably.

49.          Moreover, the appellant‘s arguments regarding the body of the findings were not supported by any professional parties. The appellant chose not to carry out any independent testing of the samples and did not present his own scientific opinion to contradict the findings of the Prosecution Experts. This was despite the fact that this is a clear example of an issue that requires expertise. See, in this context, the comments made by Justice Mazza regarding similar behavior in Abu Hamad [1]:

‗The history of the proceeding regarding the petitioner‘s case indicates that the petitioner did not even attempt to object to the reliability of the prosecution experts‘ scientific findings. The attorney who acted as his defense counsel did question the experts; nevertheless, he chose not to present his own expert and even waived the opportunity given to him to carry out an independent genetic test. Consequently, the court was not presented with any professional dispute regarding which it needed to render a decision. Under these circumstances, the court was entitled to presume that there was no defect in the procedures involved in the execution of the genetic tests and that the results of the tests were correct . . . ‘ (ibid., [1] at para. 9).

These words are pertinent for this case as well. Although I am not certain that we need to go so far as to say that the district court was not presented with any ―professional dispute regarding which it needed to render a decision‖ in the instant case – because the appellant did attempt to refute the respondent‘s findings in his cross-examination. However, this effort was unsuccessful, as the sporadic arguments he raised were satisfactorily answered by the Prosecution Experts‘ response, and I therefore do not see that he succeeded in presenting any grounds for rejecting the respondent‘s findings.

50.          Finally, with regard to the argument that the DNA mixture found on some of the items on the Exhibit raises questions regarding the appellant‘s guilt – the discovery of a foreign profile on the Exhibit does not rule out the possibility that the appellant made use of the strip of adhesive tape when the crime was committed. The fact that traces of DNA from other unknown individuals were found does not create a reasonable doubt regarding the possibility of the appellant‘s involvement in the crime.

51.          Thus, the evidence presented indicates that the DNA traces that were found did come from the appellant. Can the appellant‘s conviction be based exclusively on such findings? I will now respond to this question.

Conviction on the basis of the DNA that was found

52.          This issue involves a number of pieces of evidence which match the appellant‘s genetic profile – the two samples from the strip of adhesive tape, the hair and the glove. The Expert could not determine the particular type of cells that were the source of the DNA that was found, and assumed that they were either skin or saliva cells. She noted in her testimony that she chose to sample the edges of the strip of tape because that is generally where DNA traces are found (either because skin cells from the user adhered to the strip, or because the user tore the strip off from the roll by using his or her mouth). When questioned regarding the matter of the exact location on the strip from which she took the samples and the length of the section that she sampled, the Expert responded by saying that she could not point to the exact spot or to the exact length of the piece, and she explained that when she received the Exhibit from the fiber and polymer laboratory, the adhesive tape strip was open. She also noted on several occasions that the tape was sampled at four different locations (in addition to the hair and the glove). She did not know whether the DNA was found on the piece of the glove had been taken from its external side or from its inner side. She testified that she could not rule out the possibility that had been raised – that the DNA that had been on the tape was transferred to the glove. She also testified that a momentary touch of a roll of tape will not generally leave a trace of DNA –―its not someone who just took the tape from one place to another‖ – and that only the use of the tape would lead to that result (see p. 4 of the trial transcript, from 7 December 2009).

53.          The above details indicate that this is not a situation in which the court is presented with a single item of DNA evidence that was produced from a single segment – rather, the evidence consists of a group of DNA samplings produced from four different locations on the Exhibit: the two pieces of adhesive tape that were taken from different regions on the Exhibit, the piece of the glove that was found inside the tape, and the hair that was also found attached to the tape. Even if there had been some ―internal pollution‖ within the Exhibit, such that the appellant‘s DNA was transferred from one part to another – that fact does not negate the presence on the Exhibit of DNA that matched the appellant‘s details. The Expert‘s testimony indicated that the presence of DNA on adhesive tape is generally the result of actual use that was made of the tape, and not of momentary contact with it – a fact that the appellant did not attempt to contradict. Even if the samples were taken from a piece of the tape that was only ten centimeters long, that fact would not be sufficient to rule out the possibility that it had been used. Additionally, the DNA found on the Exhibit and which belonged to the appellant was found in the course ofa random sampling – according to the Expert, the edges of the strip were cut randomly. I do not believe that a random sampling that produces a number of locations bearing the DNA of the appellant weakens the evidence – to the contrary, it strengthens it.

54.          Although the DNA evidence was found on a moveable object which may have been brought from a different place to the crime scene, the evidence indicates that the use that produced the DNA traces took place at the scene of the crime. Thus, for example, Re‘ut Biton testified that she heard the noise of someone attaching adhesive tape coming from the door, and that when she opened the door she saw a person (whom she could not identify) who quickly removed his hands from the apartment door, apparently after the taping, and ran away (see pp. 5 and 10 of the trial transcript, from 17 June 2009). We note again that momentary contact with a roll of adhesive tape would not result in the presence of DNA on the tape – only the use of that tape can produce such a transfer of DNA. Given the characteristics of a roll of adhesive tape, it is difficult to believe that the criminal would have re-used a strip of tape that had been previously used by the appellant. As the district court astutely noted:

‗ . . . A roll of adhesive tape is not the type of product which is re- used. This is due to, inter alia, the character of the product, because of which it is almost impossible to revert (the roll of adhesive tape) back to its previous state‘ (p. 20 of the decision).

55.          We now come to the appellant‘s version of the events. During his questioning and testimony, he denied any connection with the incident, and claimed that he did not know the person who lived in the apartment on the door of which the grenade was taped. He suggested that someone had taken the adhesive tape from the convenience store in which he worked, or removed it from his car. The appellant did not recall what he did on the day of the incident, and noted that two and a half years had passed since that time. The district court found that these hypotheses had not been proven, even on a prima facie basis, and that they were insignificant explanations that did not create any reasonable doubt regarding his guilt. I agree with this conclusion and I have nothing to add, except to repeat the district court‘s reasoning regarding this matter. The court noted that a roll of adhesive tape is a simple and cheap product and that it is logical that anyone who wishes to use one will use a roll of tape that is already in his house or will go out and buy a new roll. It is also unlikely that a person would re-use a used roll of tape, as described above. Moreover, the appellant has not made any claim regarding the existence of a person with whom he has a disagreement who would wish to incriminate him by planting the adhesive tape at the scene of a crime. Thus, the possibility that he has been deliberately framed must be rejected.

56.          I would add that during his interrogation at the police station (P/3), the appellant, who lives in Kiryat Gat, stated that he often goes out to Ashdod at night. He also stated that he has a friend who lives in Ashdod, whom he has visited on several occasions, but never at night. The appellant agreed to point out the location where his friend lives (the demonstration report, P/6) and it appears that his friend lives in a building close to where the Biton family‘s apartment is located. When the interrogating police officer asked him if it could be that the Biton family‘s apartment was in the building in which he visited, he stated that it was possible that he went there by mistake upon returning from a night of entertainment and then called his friend who informed him of his error (P/6, at p. 3). When, during his cross-examination, he was confronted with the question of how it was that he had never visited his friend at night but may have accidentally been in the adjacent building when returning from a night out, he changed his story and stated that this had been the only time that he visited his friend at night, and that all the other visits took place during daytime hours (see pp. 24-25 of the trial transcript, from 1 November 2010). When he was asked why he had not provided that information during his interrogation, he responded that much time had passed since then, and he had not recalled the night-time visit when he was being questioned by the police. The fact that the appellant was present so close to the crime scene, and the change in his story regarding the hours during which he visited his friend, provide a certain level of support for the DNA evidence, even though he could have been convicted even without such support.

57.          Does the considerable time that passed between the occurrence of the incident and the appellant‘s police interrogation regarding the incident carry any weight? The appellant believes that he can raise a ―principles of justice defense pursuant to s. 149(10) of the Criminal Procedure Law [Integrated Version] 5742-1982, arguing that his ability to defend himself was impaired because he was required to provide explanations after so much time had passed since the incident. Included in this, he argued, is his inability to present an alibi defense. He also argued that the police interrogators did not inform him that the incident took place on a Friday night – a fact which ruled out the possibility of his involvement in the incident, as he is a Sabbath observer. From this perspective as well, I did not see a need to interfere with the district court‘s holding. I do not dispute that the time that had passed before the appellant was questioned had the effect of impairing his ability to mount a defense, but this impairment is not a result of any defects in the process followed by the Israel Police, or in its conduct. The police are not to be blamed for the fact that evidence tying the appellant to the crime was found, by chance, only after two years had passed – when the police had spent this period of time investigating every possible suspect, using every method available to them. Furthermore, the interrogators informed the appellant of the exact date on which the crime attributed to him had taken place. The appellant, knowing that he was a Sabbath observer, could have clarified for himself the day of the week on which the incident had occurred. Either way, the date of the incident was expressly mentioned in Re‘ut Biton‘s testimony, who was the first witness to testify for the prosecution, but the Sabbath observer argument was raised for the first time only a year later. Under these circumstances,  I do not believe  that the way the  case was handled conflicted in a substantive way with the principles of justice and equity.

58.          To sum up, the aggregate DNA evidence, combined with the nature of the item on which it was found, while taking note of the appellant‘s theoretical explanations, leads to a single logical conclusion – that the appellant committed the crimes with which he is charged in the indictment. The appellant carried the grenade from its location to the Biton family apartment, where the grenade was taped to the apartment door. There is no dispute that the grenade falls within the definition of the word ―weapons‖ in

s. 144(c)(3) of the Law. The evidentiary material shows that the appellant was involved in taping the grenade to the piece of cardboard and to the door of the apartment, and in this sense the appellant held the weapon on his body or within his reach in a manner that allowed him to use it when needed. Thus, all the elements of the weapons offense, as set out in s. 144(b) of the Penal Code, are present (see Y. Kedmi, Criminal Law, Part 4 1973 (2006). Additionally, I have no doubt that this was an act that was intended, at the least, to constitute intimidation, as that term is defined in s. 192 of the Law. As the district court noted, a person who tapes a grenade to the door of a family‘s home does so with the intention of harming the residents of the home, or at the very least with the intention of intimidating them, particularly when the residents of the house do not know whether the grenade‘s safety mechanism will or will not be released. I therefore believe that the elements of the crime of intimidation are also present.

The elements of the offense set out in s. 413 of the Law have also been proven; s. 413 deals with the possession of an item that is suspected of being stolen. The district court held, in this context, that ―unlike other weapons, the possession of which is regulated by statute (see for example the Firearms Law, 5709-1949), there is no statutory regulation for the possession of a fragmentation grenade, and no argument can be made that the defendant was licensed to possess it. There is no dispute that a fragmentation grenade is not a product that can be legally and properly purchased from a business or in any other place‖ (p. 25 of the decision). It can be inferred from this that a fragmentation grenade creates, by its very essence, a non-rebuttable presumption that the item should be suspected of being stolen. However, it is possible to think of ways in which a fragmentation grenade can be obtained in an improper or illegal fashion but not by way of theft, as required by s.

413. (This is in distinction from the provisions of ss. 411 and 412 of the Law, which deal with items that have been obtained through the commission of a crime or a felony. See Y. Kedmi, Criminal Law, Part 2 (2005) at p. 820). However, in our case the fragmentation grenade had the appearance of an IDF grenade. The appellant even noted, on his own initiative that ―there are grenadeslike this in the army‖ (see P/4, Q. 14), when he was shown a picture of the grenade. Under these circumstances, it appears to me that we can find that a reasonable person, viewing the matter from the appellant‘s perspective, would understand that this is an item which should have been suspected of being a grenade that was stolen from the security forces.

Appeal of the sentence

59.          As mentioned, the appellant was sentenced to 24 months in prison and a 12 month suspended sentence, and ordered to pay compensation to Reut Biton in the amount of NIS 2,500. I see no reason to intervene with regard to this sentence. The appellant taped a fragmentation grenade to the door of the Biton family‘s home; such a grenade is a powerful assault weapon, the use of which is likely to cause random death. The police bomb squad who handled the grenade at the scene offered contradictory opinions of whether the taping of the grenade was intended to serve as intimidation only, or whether the taper had actually intended to explode the  grenade, but was  interrupted because the door opened. This question was not decided by the district court in its decision, but the court expressed its opinion in its sentencing decision: that given  the manner in which the grenade was attached with  a string attached to the safety mechanism, the intention was to set it off. In my view, even if the intention had only been to intimidate, the sentence that was given was appropriate in light of the high risk involved in the use of this type of weapon and in the manner in which it was attached. This risk was one that the appellant took upon himself through his actions. Added to all this is his serious criminal record, which includes many convictions for property and drug offenses, for which he had previously served several prison sentences. He also committed crimes after this incident, despite his claim that he has been reformed since his marriage in 2005. Given the relevant considerations, I believe that the sentence that was imposed on the appellant is an appropriate one and accurately reflects the severity of the acts that he committed.

Final comments

60.          For the reasons described above, I suggest to my colleagues that we deny both parts of the appeal.

 

Justice U. Vogelman

 

I join in Justice E.Arbel's opinion, which holds that there is nothing in principle that prevents the conviction of a defendant on the basis of DNA evidence alone and that, under the circumstances of the case before us, there is no reason to intervene in the district court‘s decision.

 

Justice T. Zilbertal

 

I concur.

 

Decided as per Justice E. Arbel 8th of Tishrei 5773.

24 September 2012.

Full opinion: 

Tel Aviv-Jaffa District Commander v. Israel Internet Association

Case/docket number: 
AAA 3782/12
Date Decided: 
Sunday, March 24, 2013
Decision Type: 
Appellate
Abstract: 

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.” 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
dissent
Full text of the opinion: 

                                                                                    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 (2nd 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).

 

 

 

[1]  Justice Sohlberg goes on to cite an anonymous poem about the many evils of gambling. See original Hebrew version of decision.

[2]  Rabbi Yitzchak, abbreviated at R”I – was one of the Baalei Tosafot- 11th-12th century Talmudic commentators [Translator]

[3] Talmudic term for indirect damage for which liability may be incurred – Translator.

[4] Lottery and games organization in Israel, proceeds of which go to public causes.

State of Israel v. Haggai Yosef

Case/docket number: 
LCA 3202/03
Date Decided: 
Thursday, March 4, 2004
Decision Type: 
Appellate
Abstract: 

Facts: In an action for damages for wrongful arrest and prosecution, the plaintiffs wished to summon as a witness the person who had been the prosecutor in the criminal proceedings. The prosecutor had, in the meanwhile, become a judge. The District Court decided that the judge should be summoned to testify. The State asked for leave to appeal this decision, and leave was granted.

 

Held: A judge may not be summoned to testify on a matter relating to his judicial role, but on a matter unrelated to his judicial role, he may be summoned, and his testimony should be given in a way that does not harm his standing and the standing of the judicial system, in accordance with the rules set out in para. 12 of the judgment. The Supreme Court returned the case to the District Court to reconsider the matter in accordance with these rules.

 

Leave to appeal granted. Appeal allowed. 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

LCA 3202/03

State of Israel

v.

1. Haggai Yosef

2. Tali Yosef

3. Dana Yosef

4. Yafit Yosef

5. Mustafa Sarsour

6. Motti Ben-Ezra

 

The Supreme Court sitting as the Court of Civil Appeal

[4 March 2004]

Before Justices J. Türkel, A. Procaccia, E. Hayut

 

Application for leave to appeal the decision of the Jerusalem District Court (Justice Y. Hecht) on 26 March 2003 in Civil Case 735/94. The application was heard as an appeal.

 

Facts: In an action for damages for wrongful arrest and prosecution, the plaintiffs wished to summon as a witness the person who had been the prosecutor in the criminal proceedings. The prosecutor had, in the meanwhile, become a judge. The District Court decided that the judge should be summoned to testify. The State asked for leave to appeal this decision, and leave was granted.

 

Held: A judge may not be summoned to testify on a matter relating to his judicial role, but on a matter unrelated to his judicial role, he may be summoned, and his testimony should be given in a way that does not harm his standing and the standing of the judicial system, in accordance with the rules set out in para. 12 of the judgment. The Supreme Court returned the case to the District Court to reconsider the matter in accordance with these rules.

 

Leave to appeal granted. Appeal allowed.

 

Legislation cited:

Civil Procedure Regulations, 5744-1984, rr. 134(c), 164, 168, 172, 240 et seq.

Criminal Law Ordinance, 1936, s. 131(1)(a).

Criminal Procedure Law [Consolidated Version], 5742-1982, s. 174.

Evidence Ordinance [New Version], 5731-1971, ss. 15, 17, 20.

Road Accident Victims Compensation (Experts) Regulations, 5747-1986, r. 15(b).

Road Accident Victims Compensation Law, 5735-1975, s. 6A(b)(2).

 

Israeli Supreme Court cases cited:

[1]        HCJ 124/58 Attorney-General v. Justice Conducting Preliminary Examination [1959] IsrSC 13 5.

[2]        CrimA 35/72 Dayan v. State of Israel [1972] IsrSC 26(1) 662.

[3]        CrimA 406/78 Bashiri v. State of Israel 1980] IsrSC 34(3) 393.

[4]        CrimA 685/81 Aharoni v. State of Israel 1983] IsrSC 37(1) 673.

[5]        CrimA 364/73 Seidman v. State of Israel [1974] IsrSC 28(2) 620.

[6]        HCJ 732/84 Tzaban v. Minister of Religious Affairs [1986] IsrSC 40(4) 141.

[7]        HCJ 506/89 Be’eri v. Head of Claims Department, Investigations Division, Israel Police National Headquarters [1990] IsrSC 44(1) 604.

[8]        HCJ 6163/92 Eisenberg v. Minister of Building and Housing [1993] IsrSC 47(2) 229; [1992-4] IsrLR 19.

[9]        HCJ 2148/94 Gilbert v. Chairman of Commission of Inquiry for Investigating the Hebron Massacre [1994] IsrSC 48(3) 573.

[10]     LCA 2508/98 Matan Y. Communication & Detection Systems Ltd v. Miltal Communications Ltd [1999] IsrSC 53(3) 26.

[11]     CrimA 334/81 Haginzar v. State of Israel [1982] IsrSC 36(1) 827.

[12]     CrimA 5329/98 Dejani v. State of Israel [2003] IsrSC 57(2) 273.

[13]     HCJ 1199/92 Lusky v. National Labour Court [1993] IsrSC 47(5) 734.

[14]     HCJ 2874/93 Kamal v. National Labour Court [1994] IsrSC 48(2) 673.

[15]     LCA 600/96 Edri v. Migdal Insurance Co. Ltd (unreported).

[16]     LCA 7265/95 Gladstein v. Barel [1996] IsrSC 50(3) 214.

[17]     CrimA 2286/91 State of Israel v. Eiloz [1991] IsrSC 45(4) 289.

[18]     CrimA 4133/93 State of Israel v. Hir [1996] IsrSC 50(4) 274.

 

Israeli District Court cases cited:

[19]     Mot (Jer) 5915/97 Yitzhak v. Weisglass (unreported).

[20]     CA (Naz) 335/98 Ilboni v. Ilboni (unreported).

 

American cases cited:

[21]     State v. Simpson, 334 S.E. 2d 53 (1985).

[22]     State ex rel. Kaufman v. Zakaib, 535 S.E. 2d 727 (2000).

[23]     Sansone v. Garvey, Schubert & Barer, 71 P. 3d 124 (2003).

[24]     Guardianship of Hortense Clapp Pollard, 764 N.E. 2d 935 (2002).

 

English cases cited:

[25]     Warren v. Warren [1996] 4 All ER 664 (C.A.).

[26]     Buccleuch (Duke) v. Metropolitan Board Of Works (1872) [1861-1873] All ER 654 (H.L.).

 

Jewish law sources cited:

[27]     Rabbi Yosef Karo, Shulhan Aruch, Hoshen Mishpat, 8, 4; 28, 5.

[28]     Maimonides, Mishneh Torah, Hilechot Sanhedrin (Laws of Courts), 25, 1 and 4.

[29]     Rabbi Yehiel Michel Epstein, Aruch HaShulhan, Hoshen Mishpat, 28, 13.

[30]     Maimonides, Mishneh Torah, Hilechot Edut (Laws of Testimony) 1, 2.

[31]     E. Shochetman, Legal Procedure – In Light of Jewish Law Sources — Procedure, Regulations and Rulings of the Rabbinical Courts in Israel (1988).

 

For the appellant — T. Tzaban, Senior Assistant to Jerusalem District Attorney.

For respondents 1-5 — A. Feldman, M. Sefarad.

For the sixth respondent — A. Rom, A. Hernik.

 

 

JUDGMENT

 

 

Justice J. Türkel

Background and proceedings

1. On 14 July 1991, Mr Israel Djelusitzky, a money changer, was robbed and murdered. An indictment was filed against the first, fifth and sixth respondents (hereafter — the three respondents) in the Tel-Aviv District Court, charging them with an offence of murder. Eventually, because of the conviction of another person in this affair, the three respondents were acquitted. Following the acquittal, the three respondents and respondents 2-4, who are the daughters of the first respondent, filed a claim in torts against the State of Israel in the Jerusalem District Court, on the grounds that the State had been negligent with respect to the three respondents in that it had brought about their arrest and trial on the indictment that was filed against them. During the hearing of the claim in torts, counsel for respondents 1-5 applied to summon as a witness the honourable Justice Y. Amsterdam, who had at the time been an attorney in the Central District Attorney’s Office and had conducted the criminal proceedings against the three respondents. The applicant opposed the application. The District Court (the honourable Justice Y. Hecht) denied the application in its decision on 9 March 2003, because ‘Ms Amsterdam does not have anything to add in oral testimony or in oral examination about what is in the file… and there is no reason to trouble an additional witness in order to quote… from the multitude of documents that were written ten years ago.’ Counsel for respondents 1–5 applied again to the District Court to reconsider the aforesaid decision, and on the same day — 9 March 2003 — the District Court granted the application because it was of the opinion ‘that fairness requires that she [Justice Amsterdam] is summoned to testify.’

On 20 March 2003, the applicant filed an application in the District Court to reconsider its last decision and to order that the testimony of Justice Amsterdam should be given by means of giving written answers in reply to written questions that would be presented to her by the parties, after the District Court approved them. The respondents opposed the application. The District Court dismissed the application in its decision of 26 March 2003 (hereafter — the decision).

The applicant applied for leave to appeal the decision. The respondents replied to the application. In our decision of 3 September 2003 we granted the applicant’s application to allow it to appeal the decision, and we ordered that the application should be heard as an appeal.

Deliberation

The values under consideration

2.     When we wish to decide the question whether it is appropriate to have a judge testify as a witness on the witness stand in a judicial proceeding, we place important values that are all interrelated on the scales, and each of these values tips the scales in its direction: discovering the truth, holding a just trial and the fairness of the judicial process are placed on one scale, and safeguarding the standing of the courts, the independence of the courts and maintaining public confidence in the courts are placed on the other. I said ‘interrelated’ because discovering the truth, the holding of a just trial and the fairness of the judicial process all in themselves, and by their very nature, safeguard the standing of the courts, the independence of the courts and public confidence in the courts. It need not be said that the discovery of the truth, the holding of a just trial and the fairness of the judicial process require the witness to testify and to be cross-examined openly and publicly before the court, mainly for the reason that in this way his credibility and the reliability of his story can be examined. This is well established (see, inter alia, HCJ 124/58 Attorney-General v. Justice Conducting Preliminary Examination [1]; CrimA 35/72 Dayan v. State of Israel [2], at p. 664; CrimA 406/78 Bashiri v. State of Israel [3], at pp. 442-443; CrimA 685/81 Aharoni v. State of Israel [4], at p. 689; A. Harnon, The Laws of Evidence (vol. 1), at pp. 106-109). Notwithstanding, the testimony of a judge and his cross-examination as a witness on the witness stand may lead to contempt for the judge (see the remarks of Justice Berinson in CrimA 364/73 Seidman v. State of Israel [5]), at p. 627, and the remarks of Justice M. Ravid in Mot (Jer) 5915/97 Yitzhak v. Weisglass [19]), which are cited below) and will certainly compromise the standing and independence of the courts and the confidence of the public therein (see, inter alia, HCJ 732/84 Tzaban v. Minister of Religious Affairs [6], at pp. 148-149; HCJ 506/89 Be’eri v. Head of Claims Department, Investigations Division, Israel Police National Headquarters [7], at pp. 610-611; HCJ 6163/92 Eisenberg v. Minister of Building and Housing [8], at pp. 265-266 {69}; HCJ 2148/94 Gilbert v. Chairman of Commission of Inquiry for Investigating the Hebron Massacre [9], at pp. 581-582).

3.     To the best of my knowledge, the question of whether it is appropriate for a judge to testify as a witness on the witness stand has not yet been decided in the case law of the courts in Israel. Below we will consider several cases in the case law of the courts in Israel, England and the United States, in which the question has been raised. We shall also consider Jewish law sources in this regard. On the basis of all these, we will be able to choose the best path to follow.

Israeli experience

4. It is well known that the adversarial method, as practised in common law countries, was adopted in Israel; according to this, the right of a party to cross-examine the witnesses of the other party in the courtroom, before the judge who is trying the case, is an essential element of the judicial proceeding (S. Levin, The Theory of Civil Procedure – Introduction and Basic Principles, at p. 68; Y. Kedmi, On Criminal Procedure (vol. 3), at p. 1111). The legal basis for cross-examination is s. 17 of the Evidence Ordinance [New Version], 5731-1971 (see also s. 174 of the Criminal Procedure Law [Consolidated Version], 5742-1982; rr. 164 and 168 of the Civil Procedure Regulations, 5744-1984). In addition to oral testimony — in examination-in-chief and cross-examination — the law also recognizes written testimony. Thus, it is possible to file the examination-in-chief in an affidavit (s. 15 of the Evidence Ordinance; r. 168 of the Civil Procedure Regulations). This is also the case for expert opinions and medical opinions; if the court ‘sees no danger of a miscarriage of justice, it may accept as evidence, in writing, an expert opinion on a question of science, research, art or professional knowledge… and a physician’s certificate with respect to a person’s state of health…’ (s. 20 of the Evidence Ordinance). Interim petitions are also usually filed in writing and not by way of a motion, which is an oral petition (rr. 240 et seq. of the Civil Procedure Regulations). Similarly, by virtue of case law and practice, the right of cross-examination has been restricted in certain matters, such as in the High Court of Justice and the Labour Court (Levin, The Theory of Civil Procedure – Introduction and Basic Principles, at p. 132). Of the special nature of the Israeli system, it has been said, inter alia:

‘The laws of evidence in Israel largely remain laws in which findings are made on the basis of oral evidence, while the litigant has the right to put the evidence of his opponent to the test in cross-examination. As the late Justice Agranat said in Attorney-General v. Justice Conducting Preliminary Examination [1], at p. 23:

“Cross-examination is regarded as the most effective instrument that has been invented to date for the purpose of enabling a litigant to discover the truth in a trial.”

We have come a long way in the years since the British Mandate ended, and it can no longer be stated that the system of evidence in Israel is entirely an oral system. We accept expert opinions in writing, and we may rely upon affidavits that are filed as evidence, in lieu of examination-in-chief; in other matters, too, we are prepared to rely on written evidence. Notwithstanding, the right in principle to conduct a cross-examination remains unchanged. This is how our legal system differs from the continental legal systems, in which the fate of the whole proceeding is likely to be determined on the basis of written evidence, without there being a right to conduct a cross-examination. From this perspective, we still belong to the family of common law countries, and it appears to me that this is, when viewed as a whole, the correct law…’ (per Vice-President S. Levin in LCA 2508/98 Matan Y. Communication & Detection Systems Ltd v. Miltal Communications Ltd [10], at pp. 32-36. See also the remarks of Justice D. Levin in CrimA 334/81 Haginzar v. State of Israel [11], at p. 832; the remarks of Justice Procaccia in CrimA 5329/98 Dejani v. State of Israel [12], at pp. 280-282; Harnon, The Laws of Evidence, supra, at pp. 106-109; A. Barak, ‘The Legal System in Israel — Tradition and Culture,’ 40 HaPraklit (1991-1993) 197, at pp. 202-208).

Special arrangement

5. An illuminating example of the restriction of the right of cross-examination and the use of the practice of presenting clarification questions in writing instead of oral cross-examination is the arrangement that has been formulated in the Labour Court with regard to an ‘expert medical consultant’ whose medical opinion has been filed as evidence in the court. In this regard it has been said:

‘The practice that developed in the Labour Courts many years ago is to appoint, when necessary, an “expert medical consultant” in order to obtain a medical opinion in the field of his expertise…

In the decision appointing him, the court specifies the documents that will be submitted to the expert for his inspection and the questions that will be put to him. The parties are given an opportunity to address the questions that the court is about to present to the expert, before they are referred to him. A party may object to a question or its phrasing, or even suggest questions of his own that may be put to the expert.

An additional aspect of the practice in the Labour Courts with respect to a medical expert appointed by the court, as developed and enhanced in those courts, is the presentation of “clarification questions” with regard to the expert’s medical opinion.

In the practice that has developed in the Labour Courts, the parties’ clarification questions are submitted to the court, and the court decides whether to allow them to be put to the expert. Such permission is granted whenever the question is relevant and intended to clarify or complete the opinion, and is not a question that is intended to test the degree of the physician’s expertise or the scientific sources for his conclusion’ (per Justice D. Levin in HCJ 1199/92 Lusky v. National Labour Court [13], at pp. 743-744). With regard to the procedure of “clarification questions” for an expert who is appointed by the court under the Civil Procedure Regulations, see r. 134(c) of the Civil Procedure Regulations. With regard to this procedure in claims for compensation for road accident victims, see s. 6A(b)(2) of the Road Accident Victims Compensation Law, 5735-1975, and r. 15(b) of the Road Accident Victims Compensation (Experts) Regulations, 5747-1986).

Also discussed there is the restriction of the right to cross-examine an ‘expert medical consultant’ who is appointed by the Labour Court:

‘Section 11 of the guidelines [that were issued by the President of the National Labour Court]… provide as follows:

“An expert medical consultant shall not be summoned to the court to answer questions relating to his opinion, unless the court so decides for special reasons that shall be recorded.”

Even according to the previous guidelines… the parties did not have an inherent right to cross-examine the medical expert. Admittedly, it was possible to ask the court to have the expert clarify his opinion orally, but the party making the application was required to set out in writing the questions that it wished to put, and the court decided if the expert would answer them in writing or orally.

The logic common to these guidelines, both in their original version and in their most recent version, is that the opinion of the expert who was appointed by the court is not testimony “for” one of the parties, and the expert is not a witness of either party. Naturally we must add to this that s. 26 of the Evidence Ordinance [New Version], which enshrines the right of cross-examination as dictated by the legislature, does not apply to the Labour Courts…

The practice with regard to a medical expert who is appointed by the Labour Court, as described above, contains many safeguards that are intended to protect the rights of the parties, contributes to maintaining the credibility, expertise and objectivity of the expert opinion and, to a large extent, reduces the need to cross-examine him.

We see from the aforesaid that neither of the parties has an “inherent right” to cross-examine the expert, neither according to law nor according to the rules of natural justice…’ (per Justice D. Levin in Lusky v. National Labour Court [13], at pp. 746-747. See also E. Rivlin, Road Accidents — Procedure and Calculation of Compensation (third edition, 2000), at p. 595, footnote 155).

Elsewhere, the following was said on this subject:

‘Expert medical consultants are appointed in the Labour Courts pursuant to the guidelines that are issued by the President of the National Labour Court, which constitute “judicial regulations”… in accordance with the procedural guidelines practiced in the Labour Courts… An expert consultant who is appointed has a special status. It is important to make the following points: an expert consultant is not a witnesses, and his opinion does not constitute testimony “for” one of the parties. The parties do not have an inherent right to cross-examine him thoroughly, and the court does not accede to a request to summon him for such an examination, unless there are special reasons that shall be recorded. Even putting clarification questions in writing to an expert is done through the court and is subject to its scrutiny. In theory and in practice, an expert medical consultant is the trustee of the court, which when ruling on a medical question attributes very great importance to his opinion. It follows that an appointment of an expert medical consultant gives the physician who is appointed a public role of a quasi-judicial nature…’ (emphases not in the original) (per Justice Mazza in HCJ 2874/93 Kamal v. National Labour Court [14], at p. 680. Cf. my remarks concerning a medical expert who is appointed in compensation claims of road accident victims, who is a ‘kind of long arm of the court… once the court has delegated its power to him’ in LCA 600/96 Edri v. Migdal Insurance Co. Ltd [15], at para. 3, and in LCA 7265/95 Gladstein v. Barel [16], at p. 218).

6.     The question whether it is appropriate to have a judge testify as a witness on the witness stand has arisen only in a few cases, in most of which the judge was summoned to testify about something related to his judicial position. In one case, an appellant was convicted in the Tel-Aviv-Jaffa Magistrates Court of an offence of defamation of a judge when carrying out his duties, under s. 131(1)(a) of the Criminal Law Ordinance, 1936. The appellant appealed against the judgment of the Magistrates Court to the Tel-Aviv-Jaffa District Court, and after the judgment of the District Court was given, he applied for leave to appeal the judgment, and this court granted his application. In his appeal, counsel for the Appellant challenged the decision of the Magistrates Court, which dismissed his application to summon for testimony the judge whom he was convicted of defaming. He argued that ‘he recognizes the fact that, according to case law, a District Court judge cannot be compelled to come and testify about events that occurred in another trial. But, in his opinion, he should at least have been allowed to summon the judge, and it would have been her choice whether to accept or refuse the summons.’ This argument was rejected by this court, while emphasizing the considerations of wasting the time of the judge who is summoned to testify, and the lack of respect for the court resulting from the cross-examination of a judge:

‘This argument has no basis. It is an immutable rule that a judge cannot be compelled… to testify about a matter that he handled in his capacity as a judge, nor should he be summoned to testify about this… the reason for this is that the judge’s time should not be wasted… on such peripheral matters, nor should he be faced with the choice of accepting or not accepting such a summons. For if he chooses to testify and is cross-examined, this is likely to lead to a lack of respect for the court — something that cannot be permitted’ (per Justice Berinson in Seidman v. State of Israel [5], at p. 627; emphasis not in the original).

This rule was also adopted in another case where an applicant wished to have the vice-president of the Jerusalem District Court testify about events that took place during a hearing before him, which, according to the applicant, were not included in the court record of the hearing. The Jerusalem District Court (the honourable Justice M. Ravid) dismissed the application, in a detailed and well-reasoned decision, saying that it was ‘irrelevant testimony, since nothing in this testimony of the judge… assuming it would be given, could make a contribution from which any conclusion could be reached…’ (Yitzhak v. Weisglass [19], at para. 32). The court added remarks concerning the various, even conflicting, considerations that are considered in this matter:

‘Even if I am mistaken in my conclusion… it still appears to me that there are no grounds for summoning the judge… to testify. Society has an interest that trials are conducted properly and that the truth is revealed… on the other hand, there are also cases where the law prefers a conflicting interest, whether absolutely or relatively, and this prevents the revelation of the truth…

The accepted approach in Israel is that a judge does not testify on matters relating to his role as a judge…

… when a judge is required to testify, not only is doubt cast upon the court record that he made, but it also has implications as to his credibility as a judge. A cross-examination of a judge is likely to harm his standing, on the one hand, and, on the other hand, there is a real concern that precisely because of the respect given to the judge, there will be attorneys who will be afraid to cross-examine the judge, in order not to harm his standing, and so they will refrain from making use of this essential instrument for discovering the truth… while the first consideration is general and systemic, and may harm the judiciary as a whole, the second consideration mainly concerns the individual, insofar as it is likely to harm a party in whose trial the judge testifies, but here too the judiciary is likely to be harmed.

Great care should be taken when summoning judges to testify, so that the judiciary as a whole is not harmed by this, and so that judges are not harmed as individuals. We must prevent the collapse of the existing safety measures and allow only very few exceptions, so that a judge will give testimony only in rare and extraordinary cases… there may be exceptional cases where there is no alternative to summoning the judge to testify, and that is where an interest of a party in a trial is likely to be seriously harmed if the judge does not come to give testimony in his trial’ (per Justice Ravid in Yitzhak v. Weisglass [19], at paras. 34, 36, 37, 42).

The question whether it is appropriate for a judge to testify on the witness stand in a matter that is not related to his judicial role was considered, to the best of our knowledge, in one case only, where the parties agreed that the testimony of a judge should be given in an affidavit, without him testifying orally. The Nazareth District Court described the arrangement as follows: ‘Here the involvement of the judge… in the case comes into the picture. The judge… is a friend of the respondent’s family and was asked by her to help her in evicting the appellant from the apartment. The judge submitted… an affidavit… and answered questions… about his role in the negotiations with the appellant’s brother-in-law… with the consent of the parties he did not testify at the trial’ (per Justice N. Maman in CA (Naz) 335/98 Ilboni v. Ilboni [20], at para. 17).

A brief summary of the rules that have apparently been formulated in this matter — including the distinction between events related to the judge’s judicial role and events that are not related thereto — is set out in Justice Kedmi’s book:

‘The case law is that a judge is not summoned to testify… — and the prevailing approach today refers to every judge — on a matter that he handled within the framework of his activity as a judge. Apart from this restriction, a judge is no different from any other person, although it is desirable — and even extremely desirable — to refrain from calling a judge to the witness stand, if only because of the anticipated damage to his standing and image as a result thereof’ (Y. Kedmi, On Evidence (vol. 1, 2004), at p. 476. See also Harnon, Laws of Evidence, at p. 88; in his opinion, ‘it is not desirable for a judge to be called as a witness.’ As to the possibility of a judge testifying in writing on matters concerning his judicial role, see: CrimA 2286/91 State of Israel v. Eiloz [17], at pp. 307-308; CrimA 4133/93 State of Israel v. Hir [18], at p. 278).

7.     It can be seen from the aforesaid that in Israeli experience, a judge should not be summoned to testify as a witness on the witness stand with regard to a matter that is related to his judicial role. The question whether he may be summoned to testify on a matter that is not related to his judicial role — whether it took place before he became a judge or whether it took place thereafter — has apparently not been the subject of a judicial determination in the 55 years of the State’s history. Is this because there were no cases of this kind, in which there was a need for the testimony of a judge? Or perhaps it is because the need was satisfied in a different way — by an affidavit or a letter — as occurred in the aforementioned Ilboni v. Ilboni [20]? Or perhaps it is because it was clear and obvious to the interested party that this is one of those things ‘that simply aren’t done’? I should point out in this regard that during the 36 years in which I have served as a judge in Israel, at all levels of the legal system, and in all the positions that I have held, I have never been asked to summon a judge to testify on the witness stand, nor have I ever heard that such an application was made in any other court. It need not be said that these remarks of mine are not, of course, ‘judicial knowledge’ or testimony…

English and American experience

8.     The accepted approach in England is that a judge should not be called to testify as a witness on the witness stand with regard to a matter related to his judicial role, because of a fear of harm to the standing of the judge who is undergoing cross-examination, and because of a desire to protect the independence of the judicial system (Warren v. Warren [25]; Buccleuch (Duke) v. Metropolitan Board of Works [26]). Therefore it has been held that it is possible to call upon a judge to testify as a witness on the witness stand only with respect to events for which there is no other course that could replace the testimony of the judge as evidence within the framework of the judicial proceeding (J.H. Buzzard, R. May, M.N. Howard, Phipson On Evidence (thirteenth edition, 1992), at p. 279; R. Cross, C. Tapper, On Evidence (ninth edition, 1999), at pp. 492-493).

9.     The accepted approach in the United States is that it is possible to call upon a judge to testify as a witness on the witness stand on a subject that is related to his judicial role, as long as he is not being asked to testify at a trial over which he is presiding (‘Report of the Special Committee on the Propriety of Judges Appearing as Witnesses,’ 36 A.B.A.J. (1950) 630). Notwithstanding, even in cases where the courts have allowed a judge to testify as a witness on the witness stand with regard to something related to his judicial role, they first examined the question whether there was a different means that could replace the testimony of the judge as evidence within the framework of the judicial proceeding (State v. Simpson [21]; State ex rel. Kaufman v. Zakaib [22]). It should be noted that in those cases where the courts in the United States have considered the question whether a judge may be summoned to testify as a witness on the witness stand, considerations of public procedure and the standing of the judge were also considered (Sansone v. Garvey, Schubert & Barer [23]). In one case, the Court of Appeals of the State of Massachusetts considered whether to allow the cross-examination of a judge on a report that she had written within the framework of her capacity as a guardian, before her appointment to the bench (Guardianship of Hortense Clapp Pollard (2002) [24]). In that case, the court allowed the judge to be examined, saying that: ‘We find no authority to support the assertion that a Probate Court judge who served as GAL [Guardian ad litem] prior to her nomination to the bench is automatically disqualified from being cross-examined upon her report in a guardianship proceeding prepared prior to her appointment’ (ibid. [24], at p. 939; but it is possible that this position was influenced by the special nature of the proceeding and the special circumstances of the case).

The experience of Jewish law

10. Jewish law sources also discuss safeguarding the dignity of the judge and a ‘community leader’ — i.e., a person whose public standing is important — and safeguarding the dignity of the public, and from this we can find an answer also to the case before us. It was said on this subject:

‘A judge shall not behave towards the public with arrogance and vulgarity, but with humility and fear. And any community leader who inflicts excessive fear upon the public that is not for the sake of Heaven will never have a scholarly son. It is also forbidden to treat them disrespectfully, even though they are ignorant … and he must endure the trouble and burden of the public. The community is obliged to treat the judge with respect, and they shall fear him, and he should also not degrade himself or act disrespectfully in their presence, for once a person has been appointed as a community leader, he may not perform labour before three people, so that he is not degraded before them, and he certainly may not eat and drink in public’ (Rabbi Yosef Karo, Shulhan Aruch, Hoshen Mishpat, 8, 4 [27]). See also: Maimonides, Mishneh Torah, Hilechot Sanhedrin (Laws of Courts), 25, 1; 25, 4 [28]).

It follows that any act of the judge that injures his dignity or that may diminish his dignity is considered inappropriate. This concept can also be seen from the exceptions to the rule that witnesses must testify orally (Rabbi Yosef Karo, Shulhan Aruch, Hoshen Mishpat, 28, 11 [27]) at the place where the trial is taking place, i.e., in the court (Rabbi Yehiel Michel Epstein, Aruch HaShulhan, Hoshen Mishpat, 28, 13 [29]). The first exception is that the testimony of a scholar should be heard out of court, and the second exception is that the testimony of a scholar should not be oral, but in writing. According to the first exception, a scholar is exempt from appearing before the court, and his testimony may be given at his home, because of his dignity. In this respect, Jewish law sources contain an illuminating distinction between the subjects of the hearing:

‘If a witness is very learned and the court is less learned than him, since it is dishonourable for him to go before them, the positive duty to honour the Torah takes precedence, and he should not do so. When is this so? In financial testimony; but for testimony concerning religious prohibitions and for testimony in capital cases or cases involving corporal punishment, he should go and testify, for it is stated: “There is no wisdom or understanding… before the Lord” (Proverbs 21, 30). Wherever there is a desecration of God’s name, one does not show respect to a rabbi’ (Maimonides, Mishneh Torah, Hilechot Edut (Laws of Testimony) 1, 2 [30]).

The testimony of a scholar at his home shall be taken by three people, who shall be appointed for this purpose by the court (Rabbi Yosef Karo, Shulhan Aruch, Hoshen Mishpat, 28, 5 [27]. Cf. r. 172 of the Civil Procedure Regulations (‘Testimony by the Head of a Religious Community’)). Similarly, it is possible for a woman to testify at her home, out of respect for her (A. Carlin, ‘Studies in the Laws of Evidence in Light of Jewish Law,’ 11 HaPraklit (1955) 49, at p. 159. Cf. E. Shochetman, Legal Procedure – In Light of Jewish Law Sources — Procedure, Regulations and Rulings of the Rabbinical Courts in Israel (1988), at p. 282, footnote 86). According to the second exception, testimony by a scholar may be given in writing. ‘The reason for this is that we rely on the opinion of Rabbeinu Tam (Rabbi Yaakov ben Meir), who allows witnesses to send their testimony in writing and therefore — in a special case where testimony is required of a scholar — we rely on his opinion in order to refrain from troubling him’ (Shochetman, ibid., at p. 291, footnote 137; Rabbi Yosef Karo, Shulhan Aruch, Hoshen Mishpat, 28, 5 [27]). We can apply this, by analogy, also to the case of religious and civil judges.

Summary and conclusions

11. As we have seen, Israeli experience shows that it is not appropriate to summon a judge to testify as a witness on the witness stand on a matter related to his judicial role. Nevertheless, the question whether to summon a judge to testify on the witness stand on a matter that is not related to his judicial role — whether it took place before he became a judge or thereafter — has not yet been the subject of a judicial ruling. We have further seen that the accepted approach in England is that a judge should not be summoned to testify as a witness on the witness stand on a matter related to his judicial role, because of a fear of compromising the standing of a judge who undergoes cross-examination, and out of a desire to preserve the independence of the judicial system. On the other hand, it can be said that the accepted approach in the United States is that a judge may be summoned to testify as a witness on the witness stand on a matter related to his judicial role, as long as he is not being asked to testify in a trial at which he is himself presiding. In Jewish law also we have found that any action on the part of a religious court judge that injures his dignity, or that is likely to detract from his dignity, is considered inappropriate. We also learned of this idea from the exceptions regarding the testimony of a scholar, according to which testimony may be given at his home and it may even be given in writing.

12. The values of discovering the truth, conducting a just trial and the fairness of the judicial proceeding, on the one hand, and the values of the protecting the standing of the courts, their independence and public confidence therein are fundamental to the existence of the State of Israel as a Jewish and democratic state. Finding the proper balance in a situation like the one before us is neither simple nor easy; we must create a possibility of obtaining the required information, but we must take great care that harm does not ensue. Therefore it was not without hesitation that I have reached the conclusion that the solution to the question brought before us ought best be in the form of making rules, similar to the aforementioned rules that were made in the Labour Courts for ‘expert medical consultants.’ These rules should be as follows:

(a) A judge shall not be cross-examined as a witness on the witness stand with respect to a matter related to his judicial role.

(b) The court that is hearing a proceeding in which the testimony of a judge is required on a matter unrelated to his judicial role shall decide, on the basis of the material before it and in accordance with the arguments of the parties, whether to summon the judge to testify.

(c) When it has been decided to summon the judge to testify, the party who wishes him to testify shall submit to the court and to the other party the questions that he wishes to put to the judge, and the court shall decide which questions shall be put.

(d) The judge shall reply to the questions in writing.

(e) After the replies have been given, the parties shall be allowed to put clarification questions to the judge in writing. The questions shall be submitted to the court and to the other party, and the court shall decide which questions shall be put to the judge.

(f) If, after receiving the replies, the court finds, upon an application of a party, that it is necessary to cross-examine the judge, the court shall summon him for examination. The court shall decide how the examination should take place: in the courtroom in a closed hearing, in the judge’s chambers or in another manner.

(g) Before the court decides on the question of cross-examination, it shall give notice to the Attorney-General, who shall give notice to the Court of his position in this matter.

Outcome

13. I therefore propose that the decision of the District Court is overturned, and that the District Court shall act in accordance with the rules set out in para. 12 above. In the circumstances of the case, there is no order for costs.

 

 

Justice A. Procaccia

I agree.

 

 

            Justice E. Hayut

I agree.

 

Appeal allowed.

11 Adar 5764.

4 March 2004.

 

State of Israel v. Jerusalem Magistrates Court

Case/docket number: 
HCJ 9264/04
Date Decided: 
Monday, June 6, 2005
Decision Type: 
Original
Abstract: 

Facts: The third respondent (‘the respondent’) was indicted in the Jerusalem Magistrates Court for an offence of committing an indecent act. The victim of the alleged offence (‘the complainant’) kept a personal diary and the parts that were relevant to the period during which the complainant and the respondent were acquainted with one another were photocopied and sent to counsel for the respondent.

Counsel for the respondent applied to inspect the whole diary under s. 74 of the Criminal Procedure Law. The Magistrate Court ordered the prosecution to produce the whole diary for inspection by the court, after an ex parte hearing where it heard only the arguments of the respondent. The decision was upheld by the District Court on appeal. The state filed a petition in the High Court of Justice to set aside the decision to produce the whole diary, on the grounds that the court had no jurisdiction under s. 74 of the Criminal Procedure Law to order the state to produce the whole diary, since it was not in the possession of the state, and that a proceeding under s. 74 of the Criminal Procedure Law disproportionately violated the right of the complainant to privacy. According to the state, counsel for the respondent should have filed an application under s. 108 of the Criminal Procedure Law to order the complainant to produce the whole diary, since this would violate the complainant’s privacy to a lesser degree.

 

Held: The power of the court to inspect material under s. 74(d) of the Criminal Procedure Law should be interpreted broadly. The fact that material is not in the possession of the prosecution and the fact that there is an alternative proceeding under s. 108 of the Criminal Procedure Law do not deprive the court of the power under s. 74(d), even if they may limit its use. The main consideration when the court exercises its power under s. 74(d) of the Criminal Procedure Law is the relevance of the material to the indictment and the likelihood that it will be of benefit to the defence.

When the inspection of material involves a violation of the basic rights of witnesses or complainants, the court should find the proper balance between these rights and the rights of the accused to a fair trial.

With regard to personal diaries, the tendency will be to regard those parts that relate to the subject of the indictment or the accused as ‘investigation material’ that the accused has a right to inspect. By contrast, those parts of the diary that do not relate to the indictment will tend not be regarded as ‘investigation material.’ The defence will have the burden of showing that there is a real possibility that the material will be of benefit to the defence, and that this is not merely a speculative and remote hope.

As a rule, the High Court of Justice does not intervene in the interim decisions of the criminal courts. But the decision of the Magistrates Court was made ex parte, and the petitioner had no opportunity of making arguments supporting the complainant’s right to privacy. This was a serious procedural defect that justified the intervention of the High Court of Justice.

 

Petition granted in part.

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

HCJ 9264/04

State of Israel

v.

1.  Jerusalem Magistrates Court (formal respondent)

2.  Jerusalem District Court (formal respondent)

3.  Guy Sarim

4.  A

 

 

The Supreme Court sitting as the High Court of Justice

[6 June 2005]

Before President A. Barak, Vice-President M. Cheshin
and Justice D. Beinisch

 

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

 

Facts: The third respondent (‘the respondent’) was indicted in the Jerusalem Magistrates Court for an offence of committing an indecent act. The victim of the alleged offence (‘the complainant’) kept a personal diary and the parts that were relevant to the period during which the complainant and the respondent were acquainted with one another were photocopied and sent to counsel for the respondent.

Counsel for the respondent applied to inspect the whole diary under s. 74 of the Criminal Procedure Law. The Magistrate Court ordered the prosecution to produce the whole diary for inspection by the court, after an ex parte hearing where it heard only the arguments of the respondent. The decision was upheld by the District Court on appeal. The state filed a petition in the High Court of Justice to set aside the decision to produce the whole diary, on the grounds that the court had no jurisdiction under s. 74 of the Criminal Procedure Law to order the state to produce the whole diary, since it was not in the possession of the state, and that a proceeding under s. 74 of the Criminal Procedure Law disproportionately violated the right of the complainant to privacy. According to the state, counsel for the respondent should have filed an application under s. 108 of the Criminal Procedure Law to order the complainant to produce the whole diary, since this would violate the complainant’s privacy to a lesser degree.

 

Held: The power of the court to inspect material under s. 74(d) of the Criminal Procedure Law should be interpreted broadly. The fact that material is not in the possession of the prosecution and the fact that there is an alternative proceeding under s. 108 of the Criminal Procedure Law do not deprive the court of the power under s. 74(d), even if they may limit its use. The main consideration when the court exercises its power under s. 74(d) of the Criminal Procedure Law is the relevance of the material to the indictment and the likelihood that it will be of benefit to the defence.

When the inspection of material involves a violation of the basic rights of witnesses or complainants, the court should find the proper balance between these rights and the rights of the accused to a fair trial.

With regard to personal diaries, the tendency will be to regard those parts that relate to the subject of the indictment or the accused as ‘investigation material’ that the accused has a right to inspect. By contrast, those parts of the diary that do not relate to the indictment will tend not be regarded as ‘investigation material.’ The defence will have the burden of showing that there is a real possibility that the material will be of benefit to the defence, and that this is not merely a speculative and remote hope.

As a rule, the High Court of Justice does not intervene in the interim decisions of the criminal courts. But the decision of the Magistrates Court was made ex parte, and the petitioner had no opportunity of making arguments supporting the complainant’s right to privacy. This was a serious procedural defect that justified the intervention of the High Court of Justice.

 

Petition granted in part.

 

Legislation cited:

Criminal Procedure Law [Consolidated Version], 5742-1982, ss. 74, 74(a), 74(b), 74(b)-(e), 74(d), 108.

 

Israeli Supreme Court cases cited:

[1]  HCJ 620/02 Chief Military Prosecutor v. Appeals Court Martial [2003] IsrSC 57(4) 625.

[2]  HCJ 8808/04 Afek v. Tel-Aviv District Attorney’s Office (unreported).

[3]  HCJ 6876/01 Barlai v. Justice of Tel-Aviv Magistrates Court (unreported).

[4]  HCJ 583/87 Halperin v. Vice-President of Jerusalem District Court [1987] IsrSC 41(4) 683.

[5]  HCJ 398/83 Avitan v. Panel of Three Justices [1983] IsrSC 37(3) 467.

[6]  HCJ 4591/04 Matok v. Tel-Aviv-Jaffa Magistrates Court (unreported).

[7]  HCJ 188/96 Tzirinsky v. Vice-President of Hadera Magistrates Court [1998] IsrSC 52(3) 721.

[8]  CrimApp 1355/98 Ben-Ari v. State of Israel [1999] IsrSC 53(2) 1.

[9]  CrimA 1152/91 Siksik v. State of Israel [1992] IsrSC 46(5) 8.

[10] CrimApp 5400/01 A v. State of Israel (unreported).

[11] CrimApp 5425/01 El Haq v. State of Israel [2001] IsrSC 55(5) 426.

[12] CrimApp 3831/02 Matzri v. State of Israel [2002] IsrSC 56(5) 337.

[13] CrimApp 8294/03 Maximov v. State of Israel [2004] IsrSC 58(1) 49.

[14] CrimApp 9322/99 Masarwa v. State of Israel [2000] IsrSC 54(1) 376.

[15] CrimApp 10160/04 Gold v. State of Israel [2005] IsrSC 59(3) 373.

[16] CrimApp 1372/96 Deri v. State of Israel [1996] IsrSC 50(1) 177.

[17] CrimApp 2632/00 A v. State of Israel (unreported).

[18] HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [2001] IsrSC 55(4) 267.

[19] HCJ 2481/93 Dayan v. Wilk [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[20] CA 506/88 Shefer v. State of Israel [1994] IsrSC 48(1) 87; [1992-4] IsrLR 170.

[21] HCJ 1391/03 Comtec Systems v. Justice Y. Adiel (unreported).

[22] CrimApp 8467/99 A v. State of Israel [2000] IsrSC 54(2) 454.

[23] HCJ 5578/02 Manor v. Minister of Finance [2005] IsrSC 59(1) 729.

[24] CrimApp 4157/00 Nimrodi v. State of Israel [2000] IsrSC 54(3) 625.

[25] CrimApp 11042/04 A v. State of Israel [2005] IsrSC 59(4) 203.

[26] CrimApp 1781/00 Schwartz v. State of Israel [2001] IsrSC 55(4) 293.

[27] LCrimA 11364/03 A v. Israel Police [2004] IsrSC 58(5) 583.

[28] HCJ 233/85 El Huzeil v. Israel Police [1985] IsrSC 39(4) 124.

[29] HCJ 1689/02 Nimrodi v. Attorney-General [2003] IsrSC 57(6) 49.

[30] CrimApp 3642/04 Serpo v. State of Israel (unreported).

[31] CrimApp 6022/96 State of Israel v. Mazor [1996] IsrSC 50(3) 686.

[32] CrimFH 3750/94 A v. State of Israel [1994] IsrSC 48(4) 621.

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

[34] CrimApp 3927/05 A v. State of Israel (unreported).

[35] CrimA 639/79 Aflalo v. State of Israel [1980] IsrSC 34(3) 561.

[36] CrimA 63/79 Ozer v. State of Israel [1979] IsrSC 33(3) 606.

 

For the petitioner — A. Helman, U. Carmel.

For the third respondent — Y. Gaulan, N. Shohat.

For the fourth respondent — F. Cohen.

 

 

JUDGMENT

 

 

Justice D. Beinisch

In this petition the petitioner, the State of Israel, is requesting that we set aside the decisions of the Jerusalem Magistrates Court and the Jerusalem District Court, which ordered it to produce, for the inspection of the Magistrates Court, the personal diaries of the fourth respondent, who is a complainant (hereafter: the complainant) in a criminal proceeding that is being conducted against the third respondent (hereafter: the respondent). As we shall see below, the fundamental question that arises in the petition before us concerns the scope of the power and discretion of the court within the framework of a proceeding under s. 74 of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereafter: the Criminal Procedure Law) to order the prosecution to produce, for the inspection of the court, material which, according to counsel for the accused, constitutes ‘interrogation material,’ when this material is not in the possession of the prosecution, and when according to the prosecution it is material that is irrelevant to the indictment and producing it will violate the privacy of a witness or a complainant.

Factual background and sequence of proceedings

1.    On 13 February 2002, an indictment was filed against the respondent in the Jerusalem Magistrates Court, in which he was charged with an offence of committing an indecent act with the use of force. In the indictment it was alleged, in brief, that on 3 June 2001, the respondent and the complainant met, following several previous meetings that took place between them with a view to starting a romantic relationship. According to what is alleged in the indictment, at that meeting after they talked about the complainant’s desire to stop meeting with the respondent, the respondent committed indecent acts against her without her willing consent and with the use of force. As can be seen from the arguments of counsel for the respondent before us, the scope of the dispute between the parties in this case concerns the question whether the sexual contact that took place at that meeting occurred with the complainant’s consent.

Two days before the complainant was supposed to testify in the respondent’s trial, it became known to counsel for the prosecution, during an interview with the complainant, that the complainant had for many years kept a personal diary which was made up of several notebooks, and the relevant notebook for the period relevant to the indictment is the ninth of these notebooks. Counsel for the prosecution therefore applied to postpone the testimony of the complainant and at the same time she asked the complainant to give her all the pages of the diary that were relevant to the indictment or to the respondent, but she made it clear that the state did not intend to ask the complainant to produce the whole diary during the court hearing. In response to the directions of counsel for the prosecution, the complainant gave her a copy of all the pages of the diary that were recorded from the date on which the name of the respondent was first mentioned until the date on which the complaint was filed with the police, and also all the pages that were recorded after the complaint was filed with the police that had any connection to the subject of the case. All the pages that the complainant gave to counsel for the prosecution were photocopied from the ninth notebook in the series of notebooks that made up the complainant’s diary, and they were all recorded between 12 May 2001 and 12 July 2001 (hereafter: ‘the photocopied pages of the diary’). Two entries in the diary that were written between 12 May 2001 and 12 July 2001 were not photocopied and were not given to the prosecution, because the complainant claimed that they were of no relevance to the subject of the indictment (hereafter: ‘the entries that were not photocopied’). A copy of all the photocopies that the complainant gave to the prosecution as aforesaid were sent to counsel for the respondent.

As counsel for the prosecution made clear in her letter to counsel for the respondent (petitioner’s exhibit 4), the photocopying of the diary was done in the following manner: the complainant went to the office of counsel for the respondent with pages that she photocopied in advance from the diary and with the diary itself. Thereafter, the complainant, in the presence of counsel for the prosecution, examined the pages of the diary that she did not photocopy, because they appeared to her to be irrelevant, in order to examine in detail whether those pages contained anything that related to the relationship with the respondent, the complaint that was filed against him, or the complainant’s conversations with others with regard to the filing of the complaint. The complainant read to counsel for the prosecution several sections with regard to which she had doubts, and counsel for the prosecution decided that they too were relevant to the case and therefore those pages were also photocopied. In the next stage, the complainant, in the presence of counsel for the prosecution, examined the photocopies and the diary, and where there were pages that she had not photocopied (because they were irrelevant to the case), counsel for the prosecution inserted a blank page on which she wrote ‘several irrelevant pages are missing.’ Counsel for the prosecution emphasized that selective photocopies of parts of pages were not made and that she told the complainant that on any day that there appeared something relevant to the trial, she should photocopy everything that was written on that page without omissions. Counsel for the prosecution also pointed out that she asked the complainant whether there was recorded in the diary anything concerning other similar events that happened to her in the past with other men and the complainant’s answer was that nothing similar had happened to her in the past and consequently there was nothing recorded in the diary on such a subject. Later, at the request of counsel for the respondent and with the consent of the complainant, counsel for the prosecution herself examined the sections that were not photocopied from the ninth notebook of the diary and she reached the conclusion that there was nothing relevant to the indictment in those sections (petitioner’s exhibit 6).

2.    On 17 November 2003, the testimony of the complainant was heard and copies of the pages of the diary that were photocopied were submitted in evidence. On the morning of that day, before the testimony of the complainant was heard, counsel for the respondent filed an application under s. 74(b) of the Criminal Procedure Law, in which he applied to inspect the complainant’s diary in full. Counsel for the respondent argued that the complainant’s diary in its entirety, since she began to record it, constituted ‘investigation material’ as defined in s. 74 of the Criminal Procedure Law, and therefore he applied to have all the notebooks of the diary produced for his inspection. He also applied to inspect the diary itself rather than a photocopy of it. In response, counsel for the prosecution argued that the notebooks that the complainant kept in the period prior to her acquaintance with the respondent (hereafter: the early notebooks) did not constitute ‘investigation material’ that should be produced for inspection by the accused, and that revealing the content of the diary, to the extent that this was irrelevant to the indictment, constituted a serious violation of the complainant’s privacy. She also argued that even the sections that were not photocopied from the complainant’s ninth notebook did not constitute ‘investigation material.’ Notwithstanding, counsel for the prosecution submitted the ninth notebook for the inspection of the Magistrates Court justice that heard the application (Justice A. Farkash), so that the court could see for itself that the photocopy was a true copy of the original and that no changes had been made to the photocopied pages as compared with the original.

In his decision of 14 December 2003, Justice Farkash held that everything that was recorded in the complainant’s diary, starting on the date when the name of the accused was first mentioned until the date of filing the indictment, including the sections that were not photocopied, was ‘investigation material’ that the defence was entitled to inspect. With regard to the early notebooks, however, Justice Farkash held that these did not constitute ‘investigation material’ and the right of the complainant to privacy took precedence over the right of the accused to inspect them. Justice Farkash denied the application of counsel for the respondent to present his arguments concerning these notebooks ex parte and added that counsel for the respondent had the right to call the complainant for further testimony and to act pursuant to s. 108 of the Criminal Procedure Law, if he thought that the early notebooks might help the defence. In addition, Justice Farkash held that if there was an additional notebook that was written in the period after the ninth notebook, the parties ought to reach an agreement with regard to the right to inspect this.

3.    Both the state and the respondent filed appeals in the Jerusalem District Court (Justice M. Ravid), which allowed the appeals and decided to return the case to the Magistrates Court. In his decision of 29 December 2003, Justice Ravid held that with regard to the sections that were written in the diary after 12 July 2001, the Magistrates Court should have inspected them under s. 74(d) of the Criminal Procedure Law and only then should it have decided whether to allow the respondent to inspect them. He also held that this material ought to be seized by the police in order to allow the court to act as aforesaid. With regard to the sections of the ninth notebook that were not photocopied, Justice Ravid held that in its sweeping finding that the diary constituted ‘investigation material,’ the Magistrates Court did not examine the material in accordance with the test laid down in HCJ 620/02 Chief Military Prosecutor v. Appeals Court Martial [1], with regard to the extent of the connection between the sections and the questions that might be in dispute in the trial and the degree of harm to the complainant if the material would be revealed, and the court should consider whether in accordance with the aforesaid tests all of the material should not be shown to the accused. Finally, with regard to the early notebooks, Justice Ravid held that the Magistrates Court should have allowed counsel for the respondent to present his arguments in camera and then it should have decided in accordance with this argument whether there were grounds to disclose all or some of the diaries after it inspected them. Therefore the District Court as aforesaid returned the case to the Magistrates Court in order to complete its decision in accordance with the District Court’s decision.

4.    Following this decision, a further hearing took place on 20 January 2004 before Justice Farkash in the Magistrates Court, and during this the arguments of counsel for the respondent were heard ex parte on the subject of the early notebooks. At the end of the hearing, Justice Farkash decided that the early notebooks should be produced for his inspection and that after he inspected them he would give a decision on the question whether they constituted ‘investigation material.’ He also held that a decision with regard to all the other issues that were raised by the parties would be given later.

The state filed another appeal on this decision of the Magistrates Court, in which it argued, inter alia, that the hearing of the respondent’s application to receive into his possession the complainant’s diaries was conducted, from the very beginning, without jurisdiction. The state argued that a condition for holding a hearing under s. 74 of the Criminal Procedure Law is that the application refers to material that is in the possession of the prosecution authorities, whereas in the present case the diaries are not in the possession of the prosecution. Therefore the state argued that the respondent should have based his application on s. 108 of the Criminal Procedure Law, rather than on the aforesaid s. 74, and since it did not do so, the court did not acquire jurisdiction to hear the application.

The District Court (Justice M. Ravid) dismissed the appeal in limine on 8 February 2004, since the Magistrates Court acted in accordance with the guidelines of the District Court in its previous decision, and the court does not sit in appeal on its own decisions. Notwithstanding, Justice Ravid held that there appeared to be grounds for the Magistrates Court to reconsider its decision, after it would hear the arguments of the complainants in camera, and after it addressed the fact that counsel for the defence had in his possession a separate document that supported his arguments, without any connection to the complainant’s diaries.

5.    Following this decision, a further hearing took place before the Magistrates Court (Justice Farkash), during which the arguments of counsel for the complainant were heard and also the complainant herself was heard ex parte. In addition, counsel for the respondent was heard ex parte once again, in order to present to the court the defence document mentioned in the decision of Justice Ravid on 8 February 2004. In its decision of 25 March 2004, the Magistrates Court considered the various factors that were in issue and ultimately it held that there was a basis for allowing the court to inspect both the notebooks of the diary that related to the period after the event and also all of the early notebooks. Therefore it held that the complainant should deliver the early notebooks that were in her possession for the inspection of the court. The court also pointed out that it had received two notebooks relating to the period after the event described in the indictment, but it had refrained from inspecting them at this stage until all the diaries were produced.

The state once again filed an appeal against this last decision to the Jerusalem District Court, and the complainant joined in this appeal with an appeal of her own. The District Court (Justice M. Ravid) denied the two appeals on 16 June 2004. In its decision, the court held that in so far as material relating to the privacy of the individual, such as the personal diaries of the complainant, was concerned, weight should be given to the value of the protection of privacy, but he reached the conclusion that this did not override the right of the accused to a fair trial in the present case. The court held that when there is no indication to support the claim that the material that is entitled to the protection of privacy contains anything that may be relevant to the defence of the accused and the claim is made solely for the purpose of ‘fishing,’ the court should deny the application to inspect the personal diaries of a complainant; but if the defence is able to point to any slight indications that might be able to show that an inspection of the personal diaries would be of benefit to the accused, even if this material only concerns matters peripheral to the indictment, the court will tend to allow inspection of the diaries. In the present case, the District Court did not see any reason to intervene in the decision of the Magistrates Court, which acted in accordance with the guidelines of the District Court in its decision of 8 February 2004.

This is what led to the state filing this petition, in which it asks us to cancel the decisions that order it to produce, for the inspection of the Magistrates Court, the early notebooks from the complainant’s diary. In consequence of this petition, a temporary order was made on 14 October 2004, which stayed the production of the early notebooks of the diary for the inspection of the Magistrates Court, and on 2 May 2005 an order nisi was made in the petition. To complete the picture, it should be noted that the early notebooks are not currently in the possession of the complainant but are in the possession of counsel for the prosecution. Notwithstanding, the prosecution emphasized that these notebooks are in the possession of the prosecution solely for the purpose of ensuring that if the petition is denied, it will be possible to comply with the decisions of the courts and that the notebooks are sealed in an envelope and no one on behalf of the prosecution has inspected them.

The claims of the parties

6.    The main argument of the state is that the decisions of the Magistrates Court and the District Court should be set aside because the whole proceeding took place without the court having jurisdiction to hear the issue. According to the state, s. 74 of the Criminal Procedure Law does not give the court jurisdiction to order the state to seize documents that are not in its possession, if it thinks, in good faith, that they are not relevant to the investigation and the indictment. It also argues that the decisions of the Magistrates Court and the District Court disproportionately violate the constitutional rights of the complainant to privacy and dignity, mainly in view of the fact that counsel for the respondent could have availed himself of an alternative proceeding under s. 108 of the Criminal Procedure Law, which injures the complainant to a lesser degree. In addition, the state argues that the decisions that are the subject of the petition were made in a defective proceeding, since in its opinion these decisions could not be based on arguments that counsel for the respondent made ex parte without the state being given an opportunity to reply to these arguments.

In reply, counsel for the third respondent argue that the petition should be dismissed in limine. Counsel for the respondent argue that the petition is an attempt to appeal against an absolute judicial decision and that this case does not fall within the scope of the rare exceptions when the High Court of Justice will intervene in judicial decisions. In addition, counsel for the respondent utterly reject the argument of lack of jurisdiction that was raised by the state and they argue that the jurisdiction of the court under s. 74 of the Criminal Procedure Law applies also to material that is not physically in the possession of the investigation and prosecution authorities. Counsel for the respondent further argue that the petition should also be denied on the merits. They argue that in the decisions that are the subject of the petition the courts exercised their jurisdiction according to the law and that they properly applied to the circumstances of the present case the principles that were laid down in the case law of this court, including the question of the balance between the right of the accused to a fair trial and the right of the complainant to privacy.

Deliberations

7.    On 2 May 2005 we decided to make an order nisi without deciding the preliminary arguments raised by the third respondent. Let us therefore first discuss in brief the preliminary arguments of counsel for the respondent. It is well known that, as a rule, the High Court of Justice does not intervene in the interim decisions of the Magistrates and District Courts, except in rare cases (see, for example, HCJ 8808/04 Afek v. Tel-Aviv District Attorney’s Office [2]; HCJ 6876/01 Barlai v. Justice of Tel-Aviv Magistrates Court [3]; HCJ 583/87 Halperin v. Vice-President of Jerusalem District Court [4], at p. 702; HCJ 398/83 Avitan v. Panel of Three Justices [5], at p. 471). This rule naturally applies also to the decisions of the courts with regard to applications to inspect investigation material within the framework of a criminal proceeding (see, for example, HCJ 4591/04 Matok v. Tel-Aviv-Jaffa Magistrates Court [6]). But it appears that the present case is one of those rare cases in which there are grounds to depart from the rule of non-intervention that this court imposed on itself. This is because the petition raises an argument of lack of jurisdiction and also a claim of defects in the proceeding, which is prima facie accompanied by a concern of a serious and irreversible violation of the constitutional rights of the complainant, which cannot be remedied within the framework of an appeal against the judgment. Moreover, the petition before us gives rise to fundamental questions that have wide-ranging ramifications and that arise on many occasions, and it would appear that it is important for this court to clarify the law on this issue (see Chief Military Prosecutor v. Appeals Court Martial [1], at p. 631; also see and cf. the minority opinion of Justice Strasberg-Cohen in HCJ 188/96 Tzirinsky v. Vice-President of Hadera Magistrates Court [7]). In this context it is also possible to point out that counsel for the respondent also said in their arguments that ‘there is considerable fundamental importance’ to the court examining (and, in their opinion, also rejecting) the position of the state in this petition with regard to ss. 74 and 108 of the Criminal Procedure Law (p. 15 of the reply of the third respondent).

Jurisdiction of the court under s. 74(d) of the Criminal Procedure Law

8.    Section 74 of the Criminal Procedure Law says the following:

‘Inspection of the investigation material

74. (a) If an indictment is filed with regard to a felony or a serious misdemeanour, the accused and his defence counsel, as well as a person whom the defence counsel has authorized for this purpose, or, with the consent of the prosecutor, a person whom the accused has authorized for this purpose, are entitled to inspect the investigation material at any reasonable time, and also a list of all the material that was assembled or recorded by the investigating authority and that concerns the indictment, which is in the possession of the prosecutor, and to copy it.

 

(b) An accused may apply to the court in which the indictment was filed to order the prosecutor to allow him to inspect material that, according to him, is investigation material that was not produced for his inspection.

 

(c) An application under subsection (b) shall be heard by one judge, and in so far as possible it should be brought before a judge who is not trying the indictment.

 

(d) During the hearing of the application, the prosecution shall produce the material in dispute for the inspection of the court only.

 

(e) A decision of a court under this section may be appealed before the appeals court, which will hear the appeal with one judge.

 

(f) Nothing in this section shall prejudice the provisions of chapter 3 of the Evidence Ordinance [New Version], 5731-1971.’

Section 74(a) of the Criminal Procedure Law therefore enshrines the right of the accused to inspect the ‘investigation material,’ whereas ss. 74(b)-74(e) of the Criminal Procedure Law provide a mechanism for judicial scrutiny of the prosecution’s decision not to produce material that the accused claims is ‘investigation material.’ This mechanism was provided in order to protect the basic right of the accused to a fair trial, while taking into account that even when the prosecution discharges its duties with skill and fairness, ‘the defence should not be compelled to rely absolutely on the ability of the prosecution to assess the potential inherent in the material from the viewpoint of the defence’ (CrimApp 1355/98 Ben-Ari v. State of Israel [8], at pp. 4-5). Within the framework of this mechanism, s. 74(d) provides that in order to decide the question whether we are concerned with ‘investigation material’ that the accused has a right to inspect, the court is competent to order the prosecution to produce the material in dispute for the inspection of the court. It should be emphasized that, contrary to the impression that might be received from the language of subsection (d), we are not speaking of an automatic procedure whereby in every application to inspect ‘investigation material’ the material is produced for the inspection of the court. The court is not obliged to make use of its power to inspect the material in dispute; this is a discretionary power. As the court made clear in Ben-Ari v. State of Israel [8], at p. 5:

‘Section 74 of the Criminal Procedure Law provided a new and orderly procedure for identifying and disclosing investigation material, and it provided a mechanism for the judicial scrutiny of a decision of the prosecution not to produce material that counsel for the defence claims is investigation material. According to this section, counsel for the accused is entitled to apply to the court to order the prosecutor to allow him to inspect material that is, according to him, investigation material.

According to the arrangement provided in s. 74(d) of the law, for the purposes of the hearing of the application to inspect investigation material, “the prosecution shall produce the material in dispute for the inspection of the court only.” The legislature did not provide that the court is obliged to inspect the requested material, but as a rule, in order to decide the application, the court will inspect the material, even if only in order to ascertain the type and nature of the material.

Only in exceptional cases will the court refuse to inspect the material. It will do so, for example, when the material clearly does not relate at all to the subject-matter of the indictment, and counsel for the defence also does not point to the slightest indication that is capable of showing why the requested material is a part of the investigation material in that case. In such a case, especially when the quantity of material under discussion is very great, and the impression is formed that the application is merely intended to make the proceedings unnecessarily cumbersome, without it having any practical purpose for the defence of the accused, the court may exercise its discretion and refuse to inspect the material.’

It was therefore held in that case (ibid. [8], at p. 7) that:

‘When there is a possibility, even if it is a remote one… that certain material may be…. relevant to the indictment that is currently pending before the court, and it may be of use to the defence, the court would do well… to inspect the material before it decides the application.’

The main question that arises in the case before us is whether the jurisdiction or discretion of the court under the aforesaid s. 74(d) is affected by the fact that the material is not in the possession of the prosecution and the possibility that producing it for the inspection of the court may harm the rights of a witness or a complainant. In addition to this question, two other questions present themselves: does the existence of the power under s. 108 of the Criminal Procedure Law to order a witness to produce documents affect the power of the court under s. 74(d), and may the court hear the arguments of counsel for the accused ex parte within the framework of a proceeding under s. 74? We will first consider the significance of the fact that the material is not in the possession of the prosecution and the relationship between ss. 74 and 108 of the Criminal Procedure Law, and thereafter the proper balance between the rights of the accused and the rights of witnesses and complainants within the framework of the decision under s. 74(d). Finally we will consider the state’s contentions concerning the hearing of the arguments of counsel for the respondent ex parte.

Material that is not in the possession of the prosecution authorities

9.    The state’s main argument is that the court is not competent, under s. 74(d) of the Criminal Procedure Law, to order the state to produce for its inspection any material that is not in its possession, if it thinks, in good faith, that it is irrelevant to the investigation and the indictment. This argument is far-reaching. Admittedly, before the court orders the state to produce material for its inspection, especially when it is material that is not in the possession of the state, the state should determine that it is indeed material that is, prima facie, ‘investigation material’ under s. 74(a) of the Criminal Procedure Law. Notwithstanding, this court has already held on more than one occasion that ‘investigation material’ for the purpose of s. 74 of the Criminal Procedure Law does not merely include material that is physically in the possession of the investigation and prosecution authorities, but it may also include material that is within the control of these authorities in the broad sense, or material that ought, because of its nature, to be in their possession (see, for example, CrimA 1152/91 Siksik v. State of Israel [9], at p. 19; CrimApp 5400/01 A v. State of Israel [10]; CrimApp 5425/01 El Haq v. State of Israel [11], at p. 430; CrimApp 3831/02 Matzri v. State of Israel [12], at p. 339; CrimApp 8294/03 Maximov v. State of Israel [13], at p. 53). The state also recognizes that s. 74 of the Criminal Procedure Law is not absolutely limited to material that is in the possession of the investigation and prosecution authorities. But it argues that the power of the court to order the state to seize material under s. 74 of the Criminal Procedure Law and produce it for the inspection of the court under s. 74(d), even though it is not in its possession, is limited to extreme cases where there is a concern that the state refrained from seizing the material intentionally and in bad faith.

But the state is correct in its argument that the fact that the material in dispute is not in the possession of the prosecution and investigation authorities does constitute an indication that it is not ‘investigation material.’ As the court held, for example, in CrimApp 9322/99 Masarwa v. State of Israel [14], at pp. 381-382:

‘The fact that material is not at all in the possession of the investigation and prosecution authorities usually indicates that it is not investigation material. In the normal course of events, when investigation activities are carried out in an objective manner and in good faith, the material is not in the possession of the investigation authorities simply because it was not found by them to be relevant to the investigation; prima facie, this means that the material is not a part of the basis for the indictment against which the accused is required to defend himself. In such circumstances, it should also not be regarded objectively as “investigation material,” within the meaning of that term in s. 74 of the law.’

This assumption relies on the premise in our legal system that the prosecution discharges its duty skilfully and fairly, and therefore it is usually possible to rely on the fact that material that was not collected or that was not found to be relevant for the investigation is not ‘investigation material’ (CrimApp 10160/04 Gold v. State of Israel [15], at para. 3; Masarwa v. State of Israel [14], at p. 382; see also CrimApp 1372/96 Deri v. State of Israel [16], at p. 183; Matzri v. State of Israel [12], at pp. 339-340; CrimApp 5400/01 A v. State of Israel [10], at para. 2; CrimApp 2632/00 A v. State of Israel [17], at para. 4).

However, this premise is opposed by the premise that:

‘The prosecution should not exercise its discretion as to what counsel for the defence should or should not use for his defence, and it should allow him the possibility of resorting to any relevant material that may be used for the defence according to his professional discretion’ (Masarwa v. State of Israel [14], at p. 382).

As I have said, in order that counsel for the defence should not be required to rely on the ability of the prosecution to assess the potential and benefit in the material for the defence of the accused, a mechanism of judicial scrutiny was provided in s. 74 of the Criminal Procedure Law (ibid. [14]; Ben-Ari v. State of Israel [8], at pp. 4-5). Clearly the effectiveness of this mechanism of judicial scrutiny is likely to be harmed if the power of the court to inspect material that is in dispute is restricted.

Moreover, there are possible cases where material that should be in the possession of the prosecution and investigation authorities because it is clearly ‘investigation material’ is not in their possession even when these authorities acted in good faith and in all fairness; for this reason also we should not restrict the power of the court to determine that material is prima facie ‘investigation material’ and to order that it is brought before the court for its inspection under s. 74(d) of the Criminal Procedure Law merely to the extreme case where there is a concern that the state intentionally and in bad faith refrained from seizing the material. Thus, for example, it was held in CrimApp 5400/01 A v. State of Israel [10], at para. 2:

‘It has also been held that investigation material is not merely the material that is physically in the possession of the investigation and prosecution authorities, but it also includes material that is in the control of these authorities in the broad sense… in order to ensure that all the material that falls within the scope of investigation material is produced, the legislature introduced the mechanism that is provided in s. 74 of the law, which allows judicial scrutiny of a decision of the prosecution not to produce material that counsel for the defence claims constitutes “investigation material.”

The premise is that, as a rule, when the investigation and prosecution authorities act within the framework of their duties, in an objective manner and in good faith, the fact that the material is not in their possession can indicate prima facie that it is not investigation material. But this is not always the case, and sometimes material which should be in the possession of the prosecution and investigation authorities and which is clearly investigation material is not in their possession. For this reason, the physical and practical test of whether the material is in the possession of the prosecution is insufficient in order to determine what is “investigation material”.’

Indeed, the premise that material that is not in the possession of the prosecution and investigation authorities does not constitute ‘investigation material’ does not create an absolute presumption. There may be cases where the court will find that certain material does prima facie constitute ‘investigation material’ within the meaning of that term in s. 74 of the Criminal Procedure Law, even though it is not in the possession of the prosecution, and even without there being any question as to the integrity and good faith of the prosecution, provided that there is a basis for finding that according to the nature of the material, its connection to the investigation justifies its seizure by the prosecution or by the investigation authorities. To this we should add that it is also possible that the court will find that certain material does not constitute ‘investigation material’ within the meaning of that term in s. 74 of the Criminal Procedure Law, notwithstanding the fact that it was assembled within the framework of the investigation and is in the investigation file. The fact that the material is or is not in the possession of the prosecution constitutes a significant indication of whether it should be classified as ‘investigation material,’ but it is only an indication; ultimately the question of whether it is ‘investigation material’ will be decided by the court, in accordance with all the appropriate considerations, of which the foremost is the relevance of the material to the indictment and the accused, and in accordance with the likelihood that it will be of benefit to the accused’s defence. In this regard, remarks that were made in a slightly different context in Chief Military Prosecutor v. Appeals Court Martial [1], at pp. 634-635, are pertinent:

‘If it were possible to base the definition on the fact that it is sufficient that the material was assembled during the investigation, the process of the characterization and identification of the material as “investigation material” would be simpler, and a significant part of the deliberations on this issue would become redundant. But the test is far more complex…

The conclusion is that no firm rules should be made with regard to the definition of “investigation material,” and no sweeping conclusion should be drawn with regard to the nature of the material merely because of the fact that it was assembled [or was not assembled] during the investigation. When a dispute arises between the prosecution and the defence with regard to the character of material that the prosecution refuses to produce to the defence, it is necessary to make a precise examination that relates to the specific material, its characteristics and nature. For this purpose, the legislature introduced the proceedings set out in ss. 74(b)-74(e) of the Criminal Procedure Law. Within the framework of the examination that takes place in those proceedings, all of the considerations relating to the material under discussion will be taken into account. The connection of the material to the indictment and the accused will be examined, and consideration will also be given to whether there is a reasonable possibility that the material will be of benefit to the accused’s defence. Any evidence that may be relevant to a matter that is being decided in the trial will be included within the scope of the “investigation material” that ought to be produced for inspection by the defence.’

(See also CrimApp 5400/01 A v. State of Israel [10], at para. 3).

The conclusion is, therefore, that the mere fact that the material is not physically in the possession of the prosecution and investigation authorities does not deny the power of the court under s. 74(d) of the Criminal Procedure Law to order the prosecution to seize the material and produce it for its inspection (even when there is no question as to the good faith of the prosecution), but it constitutes a consideration that the court will take into account within the framework of its discretion as to whether to exercise this power (see, for example, Gold v. State of Israel [15], at para. 5). Below we shall discuss the weight of this consideration within the framework of all of the considerations that the court should take into account.

The relationship between sections 74 and 108 of the Criminal Procedure Law

10. Section 108 of the Criminal Procedure Law provides:

‘Order to submit documents and exhibits

108. The court may, upon an application of a litigant or upon the initiative of the court, order a witness who has been summoned or any other person to submit to the court on the date provided in the summons or the order, those documents that are in his possession and that are specified in the summons or the order.’

Section 108 of the Criminal Procedure Law therefore gives the defence a means of obtaining documents that are not in the possession of the prosecution, but are in the possession of a witness or of any other person. This therefore gives rise to the following question: how does the possibility of making such an application affect the discretion of the court as to whether to grant an application under s. 74 of the Criminal Procedure Law, when the material in dispute is not in the possession of the prosecution authorities?

As we said above, the fact that the material is not in the possession of the prosecution does not necessarily preclude the possibility of making an application under s. 74 of the Criminal Procedure Law, and even the state does not argue that this fact in itself requires making an application only under s. 108 of the Criminal Procedure Law. The possibility of counsel for the defence making a different application, such as an application under s. 108 of the Criminal Procedure Law, and the fact that the material is not in the possession of the prosecution, do not affect the essence of the court’s jurisdiction, but they only concern the manner in which it exercises its discretion. Within the framework of this discretion, the court should consider which of the powers that it has is more suitable for considering the application of counsel for the defence to produce the requested material. It would appear that the main distinction between the different powers to order the production of the requested material revolves around the question whether there is a basis for imposing the duty to produce the material for the inspection of the court on the prosecution. Within the framework of the aforesaid s. 74, the prosecution is the party that has the duty to produce the material, and this is when we are concerned prima facie with ‘investigation material’ that the accused has a prima facie right to inspect, even if he does not wish to present it in evidence in the trial. By contrast, producing the material pursuant to an order under s. 108 of the Criminal Procedure Law is a matter within the discretion that the court exercises at the stage of presenting the evidence, with regard to the manner of holding the trial and the relevance of the evidence that the parties wish to present. Therefore when we are speaking of material that is not in the possession of the prosecution, within the framework of the considerations that the court will take into account, it should distinguish between material that by its very nature is in the control of the prosecution in the broad sense, in that it is in the possession of authorities that have a direct connection to the investigation, or material that should have been in the possession of the prosecution because of its connection to the investigation, on the one hand, and material that the prosecution should not be required to obtain even if the accused or his defence counsel are interested in it for their defence, on the other (see Masarwa v. State of Israel [14], at pp. 383-384; CrimApp 5400/01 A v. State of Israel [10], at paras. 3-4; Matzri v. State of Israel [12], at p. 340; CrimApp 2632/00 A v. State of Israel [17], at para. 5). Within the framework of this consideration, the court should also take into account that by imposing on the prosecution an obligation to seize the material that is not in its possession, it is imposing on it a duty to exercise its powers under the law to seize the material from the person who has it in his possession, even against his will.

The argument of the state before us is that when we are speaking of material that concerns the privacy of an individual who is not a defendant, such as a witness or a complainant, there is a constitutional duty to make an application under s. 108 of the Criminal Procedure Law, and the court has no jurisdiction to apply s. 74 of the Criminal Procedure Law. According to the argument, the proceeding under the aforesaid s. 108 is more proportionate in its violation of the constitutional right of the witness or the complainant to privacy, as compared with the proceeding under s. 74 of the Criminal Procedure Law, and therefore there is a duty arising from the principle of proportionality to make use of the proceeding under s. 108. This argument should be rejected for three reasons.

First, the state’s arguments gives rise to a difficulty because when we are speaking of an application to inspect material that concerns the privacy of a witness or complainant, the right of the witness or complainant to privacy is opposed by the right of the accused to a fair trial. We are therefore speaking of a conflict between two human rights and therefore one cannot argue that the more proportionate solution from the viewpoint of the right to privacy should be preferred or the more proportionate solution from the viewpoint of the right to a fair trial should be preferred without first considering the proper balance between these basic rights (and to this we may add that there is an approach according to which the principle of proportionality is totally unsuited to balancing between two human rights, as opposed to a balance between a human right and a public interest; see the opinion of Justice Dorner in HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [18], at pp. 285-286; see also HCJ 2481/93 Dayan v. Wilk [19], at p. 476 {___}; A. Barak, Legal Interpretation (vol. 3, Constitutional Interpretation, 1994), at pp. 377-386, and especially at pp. 383-384; cf. also CA 506/88 Shefer v. State of Israel [20], at pp. 103-104 {___-___}).

Second, even if we ignore the aforesaid difficulty, we have also not been persuaded on the merits that there is any foundation to the state’s argument that a proceeding under s. 108 of the Criminal Procedure Law is a priori a measure that violates the right of a witness or a complainant to privacy to a lesser degree. Indeed, there are certain differences between the two proceedings. Thus, for example, unlike in s. 108 of the Criminal Procedure Law, the proceeding under s. 74 of the Criminal Procedure Law does not take place before the judge who is trying the indictment; and unlike in s. 108 of the Criminal Procedure Law, there is a right to appeal a decision within the framework of s. 74 of the Criminal Procedure Law (see, for example, Barlai v. Justice of Tel-Aviv Magistrates Court [3]; HCJ 1391/03 Comtec Systems v. Justice Y. Adiel [21]). But we do not think that the differences between these proceedings can decide the question of the proper balance between the right of the witness to privacy and the right of the accused to a fair trial. Both within the framework of the proceeding under s. 108 of the Criminal Procedure Law and within the framework of the proceeding under s. 74 of the Criminal Procedure Law, the court should strike a proper balance between the right of the accused to a fair trial and the right of the witness to privacy, and it would appear that the considerations for deciding this matter will be similar within the framework of both proceedings, although not necessarily identical (see Masarwa v. State of Israel [14], at p. 383). Moreover, as our case shows, there are circumstances in which it is possible within the framework of both these proceedings to give a witness or a complainant to whom the material relates a right to present his case, and we accept that when there is a potential violation of the right of the witness or the complainant to privacy, he should be allowed to have a right to present his case (see also: CrimApp 8467/99 A v. State of Israel [22], at p. 457).

Third, even were we to accept the premise that the proceeding under s. 108 of the Criminal Procedure Law is a slightly more proportionate measure vis-à-vis the witness or the complainant, this still cannot impose on the court a duty to prefer only the proceeding under the aforesaid s. 108. The reason for this is that the principle of proportionality does not impose a duty to choose the measure that is the least harmful in an absolute sense, but it recognizes a ‘margin of proportionality,’ and any choice from among the various possibilities that fall within this margin will satisfy the requirement of proportionality (see, for example, HCJ 5578/02 Manor v. Minister of Finance [23] at paras. 14-15). Both the proceeding under s. 108 of the Criminal Procedure Law and the proceeding under s. 74 of the Criminal Procedure Law lie within the ‘margin of proportionality,’ provided that these proceedings allow the court to strike a proper balance between the right of the accused to a fair trial and the right of the witness to privacy.

The balance between the rights of the accused and the rights of witnesses and complainants within the framework of s. 74(d)

11. The purpose of the accused’s right to inspect the investigation material under s. 74 of the Criminal Procedure Law is to allow him to realize his right to a fair trial and to give him a proper opportunity of defending himself against the charges levelled against him (Chief Military Prosecutor v. Appeals Court Martial [1], at p. 633; Masarwa v. State of Israel [14], at p. 381; CrimApp 4157/00 Nimrodi v. State of Israel [24], at pp. 632-633); some authorities are of the opinion that the right to inspect the investigation material is also intended to balance, to some degree, the inherent disparity of forces between the state as prosecutor and the accused (per Justice Grunis in CrimApp 11042/04 A v. State of Israel [25], at para. 4). Indeed, this court has on several occasions discussed the exalted status of the right to inspect the investigation material and the great importance that it plays in realizing the right to a fair trial; and it has even been held that its exalted status leads to its being included among ‘the fundamental rights of the accused in Israel’ (per Justice Cheshin in Siksik v. State of Israel [9], at p. 22 and in CrimApp 1781/00 Schwartz v. State of Israel [26], at p. 303; see also LCrimA 11364/03 A v. Israel Police [27], at para. 5 and the references cited there). In view of this purpose, and in view of the great importance of the basic right of the accused to a fair trial, this court has adopted a broad approach to the definition of the ‘investigation material’ that the prosecution is liable to produce to the accused. Thus it has been held, inter alia, that the right to inspect the investigation material is likely to apply even in cases where the material in dispute is not directly related to the indictment or the accused, and its relevance to the indictment is marginal (Chief Military Prosecutor v. Appeals Court Martial [1], at p. 633; see also Nimrodi v. State of Israel [24], at pp. 632-633; HCJ 233/85 El Huzeil v. Israel Police [28], at p. 129; HCJ 1689/02 Nimrodi v. Attorney-General [29], at pp. 62-63). It has also been held that, in general, in the absence of any impediment resulting from a violation of the rights of another person or a violation of another protected interest, any doubt concerning the classification of material as ‘investigation material’ should work in favour of the accused (Chief Military Prosecutor v. Appeals Court Martial [1], at p. 633).

Within the framework of this broad approach the court also has the power to inspect the material in dispute, pursuant to s. 74(d) of the Criminal Procedure Law, since this power is, as aforesaid, a part of the mechanism of judicial scrutiny whose purpose is to protect the basic right of the accused to a fair trial and to prevent a situation in which his right to inspect the investigation material is subject to the absolute discretion of the prosecution. Therefore, as a rule — i.e., in the absence of special considerations, such as a concern that the rights of another person or another protected interest may be violated, and when the material is in the control of the prosecution — it is sufficient that counsel for the defence should point to a slight indication that is capable of showing that the material under discussion is ‘investigation material,’ or to some possibility, albeit remote, that the material may be relevant to the indictment and may be of use in the defence of the accused, for the court to order the prosecution to produce the material for its inspection under s. 74(d) of the Criminal Procedure Law (Ben-Ari v. State of Israel [8], at pp. 5, 7).

But notwithstanding the broad approach, it has been made clear in our case law that:

‘The broad approach is not without limits. Too broad an approach may, in certain circumstances, go too far, and not only will it not contribute to the accused’s defence but it may also disproportionately and unjustifiably violate the protected rights of others’ (Chief Military Prosecutor v. Appeals Court Martial [1], at p. 633, and the references cited there).

These remarks, which were made with regard to the scope of the material that should be produced for the accused’s inspection, are also pertinent to the scope of the use that the court may make of its power to inspect material that is in dispute under s. 74(d) of the Criminal Procedure Law, since too extensive a use of this power is likely to result in a disproportionate and unjustifiable violation of the protected rights of others.

12. Indeed, the test for the definition of ‘investigation material’ is a broad one and the power of the court to inspect material in dispute under s. 74(d) of the Criminal Procedure Law should also be interpreted broadly. But where we are concerned with material that, whether inspected by the accused and counsel for the defence or only by the court, involves a violation of the basic rights of witnesses of complainants — and especially the constitutional rights of privacy and dignity — the proper balance should be found between them and the rights of the accused to a fair trial (see and cf. CrimApp 3642/04 Serpo v. State of Israel [30], at para 6; Chief Military Prosecutor v. Appeals Court Martial [1], at pp. 635-636; CrimApp 5400/01 A v. State of Israel [10], at para. 3; Masarwa v. State of Israel [14], at pp. 383-384; CrimApp 6022/96 State of Israel v. Mazor [31]).

Our case law has already stated that ‘the right of the accused to a fair trial that will allow him to defend himself against the charges made against him is not an absolute right that allows an unlimited violation of the rights of a witness in his trial’ (Masarwa v. State of Israel [14], at p. 384); and as President Shamgar emphasized in CrimFH 3750/94 A v. State of Israel [32], at p. 630:

‘Human dignity is not only the dignity of the accused but also the dignity of the complainant, the witness, the victim; fairness in a trial, to which we aspire, is not merely fairness to the accused, but also to anyone who seeks the help of society to draw conclusions from his degradation and humiliation as a human being.’

The court is required to protect human dignity, including the dignity of the complainant, the witness and the victim of the crime (Tzirinsky v. Vice-President of Hadera Magistrates Court [7], at p. 745); this is particularly the case with regard to victims of sex offences and offences of a sexual character, since their very disclosure and the need to testify with regard to them imposes on the victims of the offence the traumatic experience of a violation of the personal affairs and their right to privacy and dignity (Chief Military Prosecutor v. Appeals Court Martial [1], at p. 640; see also LCrimA 5877/99 Yanos v. State of Israel [3], at para. 25). In addition to the consideration of protecting the rights of witnesses and complainants, there is also the public interest of conducting trials, enforcing the law and solving crimes (Chief Military Prosecutor v. Appeals Court Martial [1], at pp. 640-641). This was well expressed by Justice Cheshin in Yanos v. State of Israel [3], at para. 24:

‘The legal system wishes to protect the complainant and to prevent, in so far as possible, any injury to her reputation, privacy, modesty and dignity. This is on the individual level. At the same time the legal system wishes — on a community level — to encourage victims of sex offences to turn to the law enforcement authorities and to make a complaint, in order to protect the public against sex offenders. The considerations on the individual level and on the community level are interrelated and interconnected, since in order to realize the community interest — to encourage complaints with regard to sex offences — the legal system is obliged to establish a mechanism that will protect the complainant on the individual level, since if it does not do so victims will be deterred from making complaints against their attackers.’

13. What, then, is the proper balance between the rights of the accused to a fair trial and the rights of witnesses and complainants to dignity and privacy? In Chief Military Prosecutor v. Appeals Court Martial [1] the balancing formula with regard to the duty to produce ‘investigation material’ for the inspection of the accused was held to be the following:

‘In a direct conflict, when the right of the accused to a fair trial is weighed against the protection of the privacy of the witnesses, the right of the accused to a fair trial will tip the scales, and conflicting considerations must give way. But when the right of the accused to defend himself is not harmed, or when the possibility that it will be harmed is remote and insignificant, proper weight should be given to the rights of witnesses and victims of the crime and the public interest of conducting trials, enforcing the law and solving crimes.

Indeed, the violation of the privacy of the witnesses is sometimes unavoidable in the course of a trial, but it should be proportionate, and care should be taken to ensure that it is does not exceed what is necessary for allowing the accused to defend himself properly. Beyond this, the witnesses and complainants should be protected so that their basic rights of privacy and dignity are not violated.’

(Chief Military Prosecutor v. Appeals Court Martial [1], at pp. 635-636; see also CrimApp 11042/04 A v. State of Israel [25], at para. 4; CrimApp 3927/05 A v. State of Israel [34], at para. 4). This was also the ruling in Serpo v. State of Israel [30]:

‘The test for defining “investigation material” is a broad one, and it extends also to material that relates to the “periphery of the indictment.” But where we are speaking of material that concerns the privacy of the individual, weight will be given to the value of protecting privacy, provided that it does not override the right of the accused to a fair trial’ (ibid. [30], at para. 6).

It was also made clear in Chief Military Prosecutor v. Appeals Court Martial [1] that the main consideration when applying the balancing formula between the right of the accused to a fair trial and the rights of witnesses and complainant to dignity and privacy is the importance of the material to the defence of the accused. In other words, in each case the court should examine the relationship between the material and the indictment and the accused, and it should consider the reasonable possibility that it will be of benefit to the accused’s defence. In a direct conflict between the right of the accused to a fair trial and the rights of witnesses and complainants, i.e., when we are speaking of what is manifestly ‘investigation material’ or when it is clear that there is a reasonable possibility that the material will be of benefit to the defence of the accused — the court should order the disclosure of the material to the accused, even if this will involve a violation of the rights of a witness or a complainant. But the more remote the relevance between the material under discussion and the questions that are likely to be in dispute in the trial, and the weaker the connection between the material and the potential defence of the accused, the greater the weight that should be given to the rights of the witnesses and complainants (Chief Military Prosecutor v. Appeals Court Martial [1], at pp. 635-636, 640; CrimA 11042/04 A v. State of Israel [25], at para. 4).

14. The remarks made in Chief Military Prosecutor v. Appeals Court Martial [1] and in the other decisions cited above related, as aforesaid, to the duty to produce ‘investigation material’ for the inspection of the accused. But the principle determined in those cases is valid also for the question whether the court should inspect material that is in dispute pursuant to its power under s. 74(d) of the Criminal Procedure Law, from the perspective that in this situation also the main consideration is the relevance of the material and its importance for the defence of the accused. Notwithstanding, it should be emphasized that there is a significant difference between the decision whether to order the production of material for the inspection of the court and the decision whether to order its production for the inspection of the accused. When the question is whether the court will inspect the material in dispute pursuant to its power under s. 74(d) of the Criminal Procedure Law, the balance is tipped even further in favour of the right of the accused to a fair trial, and the burden placed on counsel for the defence to point to the relevance of the material and its importance for the defence of the accused is less than with regard to the question whether to order the production of the material for the inspection of the accused. This conclusion is based on three main reasons.

First, it is clear that the violation of the privacy and dignity of the witness or complainant is smaller when only the court inspects the material. Admittedly, we accept the state’s argument that even when the court inspects material concerning the privacy of a witness or a complainant, this constitutes a violation of privacy. But it would appear that no one disputes that such a violation is less than the violation arising from producing the material for the inspection of the accused and his counsel. Second, the inspection by the court of material that is in dispute constitutes, as aforesaid, a part of the mechanism of judicial scrutiny whose purpose is to protect the right of the accused to a fair trial and to prevent a situation in which the accused’s right to inspect the investigation material is subject to the absolute discretion of the prosecution. Excessive reluctance on the part of the court to inspect the material in dispute is likely to make this mechanism of judicial scrutiny less effective and also indirectly harm the purpose that this mechanism is intended to achieve. Third, inspection of the material in dispute by the court constitutes an interim proceeding that is intended to assist it in deciding whether it is ‘investigation material.’ It is therefore clear that at the stage of the decision whether to make use of the power given to the court to inspect the material in dispute, the ability of the court to assess the relevance of the material to the indictment and its importance for the accused’s defence is reduced.

Therefore, when counsel for the defence shows that prima facie there is a possibility that the material contains something that may assist the accused’s defence, and that this is not merely a speculative and remote hope, and when the material is such that it is appropriate to impose the duty of producing it specifically on the prosecution, the court should inspect the material in dispute, even if this inspection involves a certain violation of the rights of a witness or a complainant to whom the material relates. By contrast, the court should refrain from inspecting material when even prima facie — before it inspects the material — it would appear that there is no connection between the material under consideration and the questions that may be in dispute in the trial, and between the material and the ability of the accused to defend himself, or that the connection is remote and marginal. In such cases, when even prima facie and before the inspection of the material it can be held that it is not ‘investigation material,’ there is no justification for ordering the production of the material in dispute for inspection by the court. Producing such material for the inspection of the court does not contribute anything to the right of the accused to a fair trial, and it constitutes an unnecessary and unjustified violation of the right of the witness or the complainant to privacy.

In this context we should emphasize that the fact that the court sees fit to inspect the material is no indication of its decision on the application of the accused to inspect the material. As we have explained above, there is a real difference between the decision to produce the material for the inspection of the court and the decision to produce it for the inspection of the accused and his defence counsel. Therefore, there may certainly be cases where the court will reach the conclusion that notwithstanding a certain violation of the rights of a witness or complainant, the proper prima facie balance between these rights and the rights of the accused leads to the conclusion that the court should inspect the material in dispute; but after it inspects the material the court may come to the conclusion that it should not be produced for the inspection of the accused. Thus, for example, in Serpo v. State of Israel [30], which also concerned an application made by counsel for the defence to inspect the whole diary of a complainant, the state itself proposed ‘in view of the complainant’s request that the diary should not be revealed in its entirety, and in order to protect her privacy,’ that the court should inspect the diary and decide whether the diary, or parts of the diary, should be produced for inspection by the accused (ibid. [30], at para. 30). But after inspecting the diary, both the District Court and the Supreme Court reached the conclusion that the material in dispute did not contain anything that might be relevant to the indictment or that the defence needed to inspect for the purpose of conducting a fair trial, and it was therefore held that the complainant’s right of privacy in that case prevailed (ibid. [30], at paras. 4 and 7).

The proper balance with regard to personal diaries of witnesses and complainants

15. The material in dispute in the present case — the personal diaries of the complainant — clearly involve the privacy of the individual. We accept the argument of counsel for the state that entries that a person makes in his personal diary are some of his most intimate and personal property, and that the inspection of these, even if only by the court, involves a violation of the privacy and intimacy of the owner of the diary. Notwithstanding, we accept the argument of counsel for the respondent that even though personal diaries of witnesses and complainants are not manifestly ‘investigation material,’ there may be cases whey they (or parts of them) contain material that is relevant to the indictment or to the accused, or material that will be of benefit in his defence.

It is possible to determine that as a rule the proper practice with regard to the personal diaries of witnesses or complainants, the inspection of which naturally involves a violation of the privacy of the individual, is to create a preliminary distinction between the parts of the diary that relate to the subject of the indictment or the accused, and those parts that relate to the personal and private experiences of the owner of the diary, which are unrelated to the events that are the subject of the indictment (see Serpo v. State of Israel [30], at para. 7; cf. also Chief Military Prosecutor v. Appeals Court Martial [1], at p. 644). With regard to the parts of the diary that relate to the subject of the indictment or the accused, it is possible to regard them as ‘investigation material’ that the accused has a right to inspect. By contrast, it is clear that the personal and private experiences of the owner of the diary, which are totally unrelated to the questions that may be in dispute in the trial and the accused’s ability to defend himself, are not ‘investigation material’ even according to the broad interpretation of this concept. With regard to these there is no justification for producing them for the inspection of the accused and his defence counsel or even for the inspection of the court only.

The difficulty arises with regard to parts of a diary which, even though they do not relate to the facts concerning the indictment, may, according to the argument of counsel for the defence, be of benefit to the accused’s defence. With regard to material of this kind, it was held in Serpo v. State of Israel [30], at para. 6, that:

‘Background material that concerns one of the persons involved in the case but does not relate to the facts that concern the indictment does not necessarily fall within the definition of “investigation material” and in any case it does not need to be produced for the inspection of counsel for the defence, especially when producing it for inspection may violate the privacy of the individual. It can, as a rule, be assumed that material that is not relevant to the indictment will also not be used by the prosecution for the purpose of establishing a basis in evidence for convicting the accused.’

It follows that background material that concerns a witness does not necessarily fall within the definition of ‘investigation material and it would appear that when this material does not relate to the facts concerning the indictment and is not in the possession of the prosecution, the tendency will be that it should not be classified as investigation material. Notwithstanding, nothing in the aforesaid will necessarily exempt the court from examining, according to the special circumstances of each case, and after giving the parties an opportunity to present arguments in this regard, whether the aforesaid material may be of benefit for the defence of the accused. This is the case because the case law of this court has recognized that even material of this kind, such as material that concerns attacking a witness’s credibility, may in certain circumstances be considered ‘investigation material’ (see, for example, El Haq v. State of Israel [11], at p. 430). In this regard, the remarks made in CrimApp 5400/01 A v. State of Israel [10], at para. 3, are pertinent:

‘The question whether medical or psychiatric material or any other material concerning the emotional state, personality or past of a witness is material that is relevant to the proceedings, and for this reason also to the accused’s defence, is a question that depends on the nature and context of the material, the relationship between it and the incident under consideration and the special circumstances of each case. It cannot be taken for granted that all medical or psychiatric material concerning a witness or complainant in a trial is indeed relevant to the matter being considered by the court. As a rule, if we are speaking of material that is prima facie relevant to the matter under consideration, or that is significant because it may affect a determination concerning the credibility of a witness or a decision concerning the capacity of the witness to testify, in general it will constitute “investigation material” and it will be in the prosecution’s possession, or it should be in its possession.’

Therefore when we are speaking of parts of a diary that do not relate to the facts concerning the indictment, and especially when they relate to a period that is not close to the period that is relevant to the indictment, it is possible to say that these parts of the diary belong prima facie to the type of material that the court will not regard in principle as ‘investigation material.’ In such cases the court will tend to refrain from inspecting the material, and the burden is on counsel for the defence, who is requesting the court to inspect the material, to show that prima facie there is indeed a possibility that the material will be of benefit to the accused’s defence, and that this is not merely a speculative and remote hope.

16. In the case before us, counsel for the prosecution made a preliminary distinction between the parts of the diary that relate to the question of the indictment or the accused, and the parts that relate to the personal and private experiences of the complainant, which are unrelated to the events that are the subject of the indictment. With regard to the parts of the diary that relate to the subject of the indictment or the accused, there is no dispute in the present case that the respondent has the right to inspect these, and according to the claim of counsel for the state, all of these parts of the diary have indeed been photocopied and produced for his inspection. The material in dispute in the present case concerns the parts of the diary that do not relate to the facts of the indictment and that are not in the possession of the prosecution (or at least would not be in its possession had it not been for the decisions of the courts that are the subject of this petition). The fact that counsel for the prosecution saw fit to take possession only of the pages that were photocopied out of the ninth notebook, because it regarded only these as relevant, serves as an indication that the other parts of the diary are not ‘investigation material.’ This decision also appears to be reasonable and proper on the face of it, in view of the fact that the other notebooks relate to years that preceded the incident that is the subject of the indictment, in which the complainant was not yet acquainted with the respondent. We are speaking, as we said above, of many notebooks of a diary, which concern events that began six years before the complainant became acquainted with the respondent, and end two years before the incident. This is therefore a very long period of time, and prima facie the further we distance ourselves chronologically from the incident that is the subject of the indictment, the harder it is to see how this material is relevant to the proceedings that are taking place and to the accused’s defence. This is particularly the case with regard to the notebooks that relate to events that precede the acquaintance between the complainant and the respondent. Moreover, the nature of this material is such that it does not manifestly constitute ‘investigation material,’ and, as we said above, the tendency will generally be not to classify it as ‘investigation material.’ In such circumstances, counsel for the defence has the burden of persuading the court as to the relevance of the early notebooks in the diary for the respondent’s defence, and what are the prima facie reasons for his argument that the prosecution should have seized the material within the framework of the investigation and produced it for his inspection.

In the present case, the Magistrates Court reached the conclusion that counsel for the respondent succeeded in showing that prima facie there was a possibility that the material might be of benefit to the accused’s defence, and that this was not merely a speculative and remote hope. The court reached this conclusion after it heard the arguments of counsel for the respondent with regard to the benefit that he might derive from the diary for the defence of the respondent, which were heard ex parte. Within the framework of our judicial scrutiny in the proceeding before us, and in view of the character of the scrutiny of the High Court of Justice, we do not seek to replace the discretion of the Magistrates Court with our own discretion, and since we have come to the conclusion that the Magistrates Court acted within its jurisdiction, we have refrained for considering the discretion that the Magistrates Court exercised within this jurisdiction when it decided to inspect the diaries. Moreover, because of the nature of the proceeding in the High Court of Justice, the arguments that were heard ex parte — those arguments that persuaded the trial court to inspect the diaries — were not brought before us. Therefore, we are not able to determine whether there was a defect in the merits of the decision of the Magistrates Court that justifies our intervention. Notwithstanding, as shall be made clear below, we are persuaded that there was a defect in the proceeding in which the Magistrates Court reached its conclusion, and this defect goes to the heart of the matter. Consequently, the decision of the Magistrates Court should be set aside.

Hearing the arguments of counsel for the accused ex parte within the framework of a proceeding under s. 74 of the Criminal Procedure Law

17. The state argues that it was not permissible to order it, within the framework of a proceeding under s. 74 of the Criminal Procedure Law, to seize the early notebooks of the complainant’s diary and to produce them for the inspection of the court on the basis of arguments that counsel for the respondent made ex parte. It argues that a proper proceeding under s. 74 of the Criminal Procedure Law requires the state to be given an opportunity to hear the reasons for the accused’s application and his explanations as to why the material is, in his opinion, relevant to his defence, so that it can respond to his arguments in an objective manner. It argues that especially when we are speaking of material that concerns the privacy of the individual and that the state thinks in good faith is irrelevant there is no basis for ordering the state to violate the constitutional rights of a person without it knowing the reason that was given to justify this violation, and without it being able to respond to it objectively. We agree with this argument.

The proceeding that took place in this matter, ex parte, does not allow the prosecution to respond to the arguments of counsel for the accused and to try and persuade the court that the prosecution should not be required to seize the diaries from the complainant who opposes this and to produce them for the inspection of the court. In this regard, there is merit in the state’s argument that if the witness was requested, within the framework of her cross-examination by counsel for the defendant, to produce her diaries in the court, the court would be entitled to consider, in the presence of both parties — even if not in the presence of the witness herself — the relevance of the diaries, and to decide the question whether they are essential to the proceeding. If the court chose to exercise the power of inspection that is provided in s. 74(d) of the Criminal Procedure Law and to impose a duty on the prosecution to seize the diaries, it should first have informed it of the reason for this and allowed it to respond to the argument.

It should be emphasized that this court will not be quick to intervene in interim proceedings in criminal trials in general, and in particular because of defects in the proceeding, and we would not have done so in this case either. But in this case we are not speaking of a minor procedural defect or a defect in a proceeding that affects the state alone, but of a defect that has significant ramifications on the constitutional right of the complainant to her privacy. As we have seen above, the main consideration within the framework of the balance between the right of the respondent to a fair trial and the right of the complainant to privacy concerns the question whether prima facie there is really a possibility that the material will be of benefit to the accused’s defence, and whether this is not merely a speculative and remote hope. The problem is that the proceeding that took place in the Magistrates Court does not allow the state to know what is the reasoning of counsel for the respondent with regard to the relevance of the early notebooks of the diary to the accused’s defence, on what prima facie reasons his argument is based, and what is the basis for the decision of the court that the prosecution should have seized the material within the framework of the investigation and produced it for its inspection. In such circumstances, the state, as the party charged with the public interest and protecting the rights of the complainant, is unable to discharge its duty.

We are aware that counsel for the defence is not obliged to reveal to the prosecution the details of the defence that he intends to present in the trial, and that he is entitled, in certain circumstances, to make arguments ex parte, but the criminal proceeding is not a game of sport, in which each of the parties tries to obtain a tactical advantage over his opponent. In this respect, the remarks made by Justice Barak in CrimA 639/79 Aflalo v. State of Israel [35], at p. 575, are pertinent:

‘The criminal proceeding is a coordinated and balanced set of norms that is intended to give effect to the substantive criminal law. The purpose of the proceeding is to bring about the acquittal of the innocent and the conviction of the guilty. The criminal proceeding is not a sporting competition or a competition of any other kind. The trial is not a game… the purpose of the criminal proceeding is to discover the truth. Both the prosecutor and the accused should make their contribution to discovering the truth. In the “Magna Carta” of defendants’ rights it is not stated that the criminal proceeding should give him tactical advantages over the prosecution. The purpose of the proceeding is not to give tactical advantages, either to the prosecutor or to the accused.’

(See also CrimA 63/79 Ozer v. State of Israel [36], at p. 616).

It has also been said in our case law that:

‘The right not to disclose the defence claims of the accused does indeed constitute an important procedural right. But this right should be balanced against other interests involved in the criminal proceeding, including the public interest (which is represented by the prosecution) and the rights of the witnesses’ (Barlai v. Justice of Tel-Aviv Magistrates Court [3]).

Indeed, the prosecution should not be required to exercise its powers in order to seize material from witnesses or potential witnesses contrary to their wishes and in violation of their constitutional rights, without the prosecution being informed of the reason why it should make use of its aforesaid power and without giving it a real opportunity to protect the constitutional rights of those witnesses. This is especially the case with regard to material that prima facie does not constitute ‘investigation material.’ In such circumstances, the court should have allowed the prosecution to respond to the argument that the material was relevant to the defence, which was made by counsel for the defence ex parte, before the court decided that the case before it was a suitable one for exercising its power under s. 74(d) of the Criminal Procedure Law.

We are therefore of the opinion that in the situation that has arisen the trial court ought to hold a further hearing in the presence of counsel for the defence and the prosecution, in order to examine at the same time the arguments of both parties with regard to the relevance of the diaries and the need to classify them as ‘investigation material.’ After hearing the arguments as aforesaid, the court should make a new decision on the question of whether to inspect the material under s. 74(d) of the Criminal Procedure Law, in accordance with the proper balance between the right of the respondent to a fair trial and the right of the complainant to privacy as set out in the guidelines provided in our decision.

Summary

18. As a rule, in view of the important purpose of protecting the right to a fair trial, the power of the court under s. 74(d) of the Criminal Procedure Law to inspect material that is in dispute should be interpreted broadly. Thus, inter alia, the fact that the material is not in the possession of the prosecution and investigation authorities, and the fact that counsel for the defence may be able to avail himself of additional proceedings, such as a proceeding under s. 108 of the Criminal Procedure Law, do not deprive the court of this power, even if they are capable of limiting the use of it. The main consideration that the court should take into account within the framework of its decision whether to make use of its power under s. 74(d) of the Criminal Procedure Law and to inspect the material in dispute is the prima facie relevance of the material to the indictment and the accused, an assessment of the prima facie likelihood that it will be of benefit to the accused’s defence and the degree of justification there is for imposing a duty on the prosecution to produce the material as a part of the investigation activities carried out under the law.

In the normal course of events, when the material is in the possession of the prosecution authorities and there is no concern that the rights of a third party or any other protected interest will be violated, any possibility, albeit remote, that the material is relevant to the indictment and may be of use for the accused’s defence is sufficient for the court to exercise its power under s. 74(d) of the Criminal Procedure Law. In such cases, the burden imposed on counsel for the defence is a small one and it is sufficient for him to show a slight indication that the material concerned may be ‘investigation material.’ By contrast, when the material is not in the possession of the prosecution and investigation authorities, this fact constitutes an indication that prima facie we are not speaking of ‘investigation material.’ Therefore, although this fact does not deprive the court of its power to act pursuant to s. 74(d) of the Criminal Procedure Law, it is a significant reason for it to refrain from making use of that power. In such cases, the burden with which counsel for the defence is charged is greater, but in the absence of a concern that there may be a violation of the rights of another person or of another protected interest, the burden of showing a prima facie possibility that the material is relevant to the indictment and may be used for the defence of the accused remains relatively light.

Where we are speaking of the inspection of material that involves a violation of the basic rights of witnesses or complainants, the court should find the proper balance between these rights and the rights of the accused to a fair trial. The dominant consideration remains the prima facie relevance of the material to the indictment and the accused, and an assessment of the prima facie likelihood that it will be of benefit for the accused’s defence. The court should inspect the material in dispute, notwithstanding a certain degree of violation of the rights of a witness or complainant, when counsel for the defence shows the relevance of the material to the proceeding being conducted against his client, and when the court is persuaded, after giving the prosecution an opportunity to respond to the arguments of counsel for the defence, that prima facie there is a possibility that goes beyond a speculative and remote hope that the material will be of benefit for the accused’s defence. By contrast, the court should refrain from inspecting material when even prima facie — before it inspects the material — it appears that there is no connection between the material under discussion and the questions that are likely to be in dispute in the trial, and between the material and the accused’s ability to defend himself, or when the connection is remote and marginal. It should be emphasized that this test concerns the question whether the court should inspect the material in dispute, as distinct from the question whether to produce the material for the inspection of the accused and his defence counsel, for which a reasonable possibility that the material will be of benefit for the accused’s defence is required.

When the material in dispute is personal diaries of witnesses or complainants, and an inspection of these naturally involves a violation of the privacy of the individual, the parts of the diary that relate to the subject of the indictment or to the accused should be distinguished from the parts that relate to the personal and private experiences of the owner of the diary, which are not related to the incidents that are the subject of the indictment. With regard to the parts of the diary that concern the subject of the indictment or the accused, these may be regarded as ‘investigation material’ that the accused has a right to inspect. By contrast, with regard to the parts of the diary that do not relate to the facts relevant to the indictment, especially when these relate to a period that is not close to the period that is relevant to the indictment, it can be said that these parts of the diary prima facie are included in the types of material that the court will not regard as ‘investigation material.’ The court will tend to refrain from inspecting these parts of the material, and counsel for the defence, who is requesting that the court inspects the material, will have the burden of showing that prima facie there is indeed a possibility that the material will be of benefit to the accused’s defence, and that this is not merely a speculative and remote hope.

Epilogue

The case before us, in so far as it relates to the application of counsel for the defence to inspect the complainant’s diaries, has undergone various transitions and upheavals and we regret the consequent delay in the respondent’s trial. Notwithstanding, in view of the defect that occurred in the proceeding and in view of the importance of the rights that are involved in the matter, we see no alternative but to return the decision to the Magistrates Court so that it may reconsider the question of the need to order the prosecution to seize the diaries and produce them for its inspection, which it should do after holding a hearing in the presence of both parties, at which the prosecution may address the arguments of counsel for the defence.

For these reasons, the petition is granted in part as stated above.

In view of the circumstances of the case, we are not making an order for costs.

 

 

President A. Barak

I agree.

 

 

Vice-President M. Cheshin

I agree.

 

 

Petition granted in part.

28 Iyyar 5765.

6 June 2005.

 

 

Sapoznikov v. The Court of Discipline of the Israel Police

Case/docket number: 
HCJ 268/52
HCJ 47/53
Date Decided: 
Sunday, May 31, 1953
Decision Type: 
Original
Abstract: 

Under section 18 of the Police Ordinance the Inspector-General may constitute Courts of Discipline to try police officers charged with disciplinary offences, the section prescribing the offences which may be the subject of such charges. One of those offences is thus described (in section 18(1)(i)): "any offence contrary to the good order and discipline of the Force.. ." The High Commissioner in Council was empowered by section 50(1)(e) to make rules "for the definition of offences to the prejudice of good order and discipline", and under that power made the Police (Disciplinary Offences) (Definition) Rules, 1941. Offence No. 23 of those Rules creates the offence of "knowing where any offender is to be found, failing to report the same or to exert himself to make the offender amenable to law" and Offence No. 47 provides that a police officer is liable to punishment for "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force."

 

The petitioner, Sapoznikov, was convicted by a Court of Discipline of three offences "contrary to the good order and discipline of the Force", one based on Offence No. 23 and two on Offence No. 47, in that, knowing of the whereabouts of an offender who had brought goods into the country without an import license in contravention of the Customs Ordinance, he did not report thereon to the proper authorities. He was sentenced to six weeks' imprisonment, and later dismissed from the service.

 

The petitioner, Mimran, was charged before a Court of Discipline with "conduct likely to cause injury to the reputation of the Force", in that he had had intercourse with a woman against her will in a police car of which he was the driver. His trial was not yet completed.

 

The petitioners contended that since the offences with which they were charged were offences under the criminal law, they could not be tried in a disciplinary court.

 

Held:  (1)     That the Court of Discipline has no jurisdiction to try the charge against Mimran;

 

         (2)   By Silberg and Sussman JJ. (Olshan J. dissenting) that the Court of Discipline had jurisdiction to try only that charge against Sapoznikov which was based on Offence No. 23, but not those based on Offence No. 47.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
dissent
Full text of the opinion: 

            H.C.J 268/52

            H.C.J 47 /53

           

DAVID SAPOZNIKOV

v.

THE COURT OF DISCIPLINE OF THE ISRAEL POLICE and INSPECTOR-GENERAL OF THE ISRAEL POLICE

     H.C.J 268/52

 

 

NISSIM MIMRAN

v.

Y. SAHAR, INSPECTOR-GENERAL OF THE ISRAEL POLICE AND OTHERS

     H.C.J 47 /53

 

 

 

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

[May 31, 1953]

Before: Olshan J., Silberg J., and Sussman J.

 

 

            Police Court of Discipline - Police Ordinance ss. 18, 50 - Jurisdiction - Conduct likely to cause injury" to reputation of the Force - Police officer charged with  criminal offence not committed by him qua police officer - No jurisdiction.

           

                Under section 18 of the Police Ordinance the Inspector-General may constitute Courts of Discipline to try police officers charged with disciplinary offences, the section prescribing the offences which may be the subject of such charges. One of those offences is thus described (in section 18(1)(i)): "any offence contrary to the good order and discipline of the Force.. ." The High Commissioner in Council was empowered by section 50(1)(e) to make rules "for the definition of offences to the prejudice of good order and discipline", and under that power made the Police (Disciplinary Offences) (Definition) Rules, 1941. Offence No. 23 of those Rules creates the offence of "knowing where any offender is to be found, failing to report the same or to exert himself to make the offender amenable to law" and Offence No. 47 provides that a police officer is liable to punishment for "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force."

                The petitioner, Sapoznikov, was convicted by a Court of Discipline of three offences "contrary to the good order and discipline of the Force", one based on Offence No. 23 and two on Offence No. 47, in that, knowing of the whereabouts of an offender who had brought goods into the country without an import license in contravention of the Customs Ordinance, he did not report thereon to the proper authorities. He was sentenced to six weeks' imprisonment, and later dismissed from the service.

                The petitioner, Mimran, was charged before a Court of Discipline with "conduct likely to cause injury to the reputation of the Force", in that he had had intercourse with a woman against her will in a police car of which he was the driver. His trial was not yet completed.

                The petitioners contended that since the offences with which they were charged were offences under the criminal law, they could not be tried in a disciplinary court.

Held:  (1)     That the Court of Discipline has no jurisdiction to try the charge against Mimran;

            (2)   By Silberg and Sussman JJ. (Olshan J. dissenting) that the Court of Discipline had jurisdiction to try only that charge against Sapoznikov which was based on Offence No. 23, but not those based on Offence No. 47.

 

Palestine cases referred to:

(1)   H.C. 111/40; George Frederic Upfold v. Superintendent in Change of Prison, Acre, (1940), 7 P.L.R. 615.

(2)        P.C.A. 24/45; Arieh Zvi Lipshitz v. Haim Aron Valero, (1947), 14 P.L.R. 437.

 

English cases referred to:

(3)        Lewis v. Morgan, (1948) 2 All E. R. 272.

(4)        R. v. Thomas, (1949) 2 All E. R. 662.

  1. R. v. William Barron, (1914) 10 Cr. App. R. 81.
  2. Leyton Urban District Council v. Chew and another, (1907), 96 L.T. 727
  3. Scott  v. Pilliner, (1905), 91 L.T. 658.

 

Tunik for the petitioner, Sapoznikov.

Lubinsky for the petitioner, Mimran.

Miriam Ben-Porath, Deputy State Attorney, for the respondent.

 

            SUSSMAN J. This is a joint hearing of the respondents' replies to two orders nisi issued by this court, and they concern the jurisdiction of a Court of Discipline of the Israel Police to consider certain charges brought against the petitioners. Before setting out the facts which led to the bringing of these charges, it would be useful if I were to preface them with certain observations touching upon the law which lays down the jurisdiction of a Court of Discipline.

           

2.  Section 18 of the original Police Ordinance, was replaced by section 2 of the Police (Amendment) (No. 2) Ordinance, 1939, and according to section 18 as replaced, the Inspector General of Police may constitute a Court of Discipline to consider certain charges against police officers, as set out in that section. Section 18(1)(h) of the said Ordinance provides, inter alia, for the punishment of a police officer who "is repeatedly guilty of serious offences to the prejudice of good order and discipline." By section 6 of the Police (Amendment) Ordinance, 1946, an additional offence is added to the list of offences ill section 18, and is defined as follows : "Any offence contrary to the good order and discipline of the Force which the Inspector General considers should be tried by a Court of Discipline."

 

            Section 50(1)(e) of the Police Ordinance provides that the High Commissioner in Council (the words "in Council" were omitted by mistake in the Hebrew edition of Drayton's Laws of Palestine) is entitled to make rules for "the definition of offences to the prejudice of good order and discipline." The provision contained in the new paragraph (i), which, as I have said, was added to section 18(1) in the year 1946, was in force prior to the enactment of the Police (Amendment) Ordinance, 1946, having been introduced as a temporary measure in 1940 by Defence Regulations. In Upfold v. Superintendent in Charge of Prison, Acre, (1), the Supreme Court in the time of the Mandate held that a police officer could not be brought to trial before a Court of Discipline for an act regarded by the Inspector General as an "offence contrary to the good order and discipline of the Force", unless that act had previously been defined as such an offence in rules made by the High Commissioner under the powers given to Him by the said section 50(1)(e).

 

3. Acting under section 50(1)(e) the High Commissioner, in the Police (Disciplinary Offences) (Definition) Rules, 1941, specified 46 offences which, if committed by a police officer below the rank of "Superior Police Officer" shall be deemed to be offences to the prejudice of good order and discipline. Offence No. 23, for which a police officer is punishable, is in the following terms : - "knowing where any offender is to be found, failing to report the same or to exert himself to make the offender amenable to law". A further Offence, No. 47, was added to the said offences by the Police (Disciplinary Offences) (Definition)  (Amendment) Rules, 1941, and is constituted by a police officer "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force."

 

4. As I have said, a Court of Discipline may not sit to try a police officer unless constituted for that purpose by special order of the Inspector General of the Police. This means that a Court of Discipline is not properly constituted unless the Inspector General considers that there is need therefore in order to investigate an offence being one of the offences specified in section 18(1) of the Police Ordinance.1) For that reason, the language of section 18(1)(i) (which was added to the main section in 1946) is most defective, for by providing that the court shall try an offence under that same paragraph whenever the Inspector General considers that there is need for it, it creates unnecessary duplicity. But the meaning of the paragraph is this : Whilst according to the previous paragraph, the said section 18(1)(h), a police officer commits no offence for which the court would be empowered to try him unless he has been "repeatedly" guilty of serious offences to the prejudice of good order and discipline, paragraph (i) of that section provides that every offence of that kind, whether committed once or repeatedly, whether serious or not, will be a ground for complaint, and for trial before the Court of Discipline.

 

5. In the charge sheet filed against the petitioner, David Sapoznikov, a sergeant in the Police, he was charged with having committed three offences under section 18(1)(i) of the Police Ordinance, and after a trial before the Court of Discipline which the Inspector General had convened, he was found guilty of those offences. Each of the three offences was described in the information as "an offence contrary to the good order and discipline of the Force." One charge was based on Offence No. 23 of the Police (Disciplinary Offences) (Definition) Rules, 1941, and the act attributed to this petitioner was that, knowing the whereabouts of an offender who had brought goods into the country without an import licence, he did not report thereon to the proper authorities. The two additional charges were framed in accordance with Offence No. 47 of the said Rules, and in the particulars thereto, it was stated that the petitioner was charged with "acting in a manner likely to bring discredit to the reputation of the Force." The petitioner was sentenced to six weeks' imprisonment. The judgment was confirmed by the Inspector General, and as A result thereof the petitioner was dismissed from the service in accordance with section 18(7) of the Police Ordinance, as amended.

 

            The petitioner Mimran was also charged before the Court of Discipline with conduct likely to bring discredit to the reputation of the Force, in that he had had intercourse with a woman against her will in a police car. The trial of his case has not yet been concluded.

 

6. The act alleged against the petitioner, Mimran, is also an offence under section 152 of the Criminal Code Ordinance, 1936,1) and petitioner's counsel contends that such an offence, which we described in the course of tile proceedings as a "civil offence" to use the language of section 41 of the English Army Act, should not be disguised as an injury to t;he reputation of the Police, in order to have it investigated before the Court of Discipline, in which event the defendant is deprived of a right of appeal and his case is tried before police officers who are not learned in the law and do not even enjoy legal guidance. On the other hand, where the matter has been brought before the Court of Discipline, the police officer cannot be brought before the general courts for the same offence, for the act of the Court of Discipline is to be considered as res judicata. Is it reasonable, asks counsel for the petitioner, Mimran, that the investigation of such grave charges should be removed from a civil court just because the Inspector General has chosen, incidentally, to bring him before a court of the police?

 

7. In the case of Lewis v. Mogan (3), a seaman serving in a merchant ship was brought to trial for having absented himself for one day from his ship, contrary to regulation 47A of the English Defence Regulations. The accused argued that he had already been punished for the same act by the master of the ship, who had examined the matter and had deprived him of one day's pay. This authority is given to the master by section 114(2)(g) of the Merchant Shipping Act, 1894, whereby it is permitted to lay down in a seaman's contract of service "any regulations as to conduct on board, and as to fines, short allowance of provisions, or other lawful punishment for misconduct." The accused's submission that the case was one of "autrefois convict" was rejected by the court on two grounds. First, that the master had not sat as a court with jurisdiction to try criminal offences, but had acted "in a domestic way." Secondly, even assuming that the subject-matter of the complaint in the two instances was identical, that an offence against the Merchant Shipping Act, 1894, is not the same as an offence against the Defence Regulations, so that the offences are not identical, and the accused cannot be heard to say that he has already been tried for an offence against the Defence Regulations.

 

            The court's attitude will be further clarified if we turn our attention to the case of R. v. . Thomas (4). There, the contention of the appellant, who had been found guilty of murdering his wife by stabbing, was that he had already been convicted by a court for the same act, when he was convicted of wounding with intent to murder, and this was the act which in the end had caused the wife's death. To support this contention, the appellant relied on section 33 of the Interpretation Act, 1889, which provides : -

           

            "Where an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law..... the offender shall, unless the and punished under either or any of those Acts or at common law, but shall not be liable to be punished twice for the same offence."

 

            The court answered the contention in these words : -

           

            "Certainly it (the section) adds nothing and detracts nothing from the common law. It was argued that we ought so to read the section that the last word "offence" should be read as meaning "act" and it was submitted that "act", "cause" and "offence" all mean the same thing. In our view, that is not correct. It is not the law that a person shall not be liable to be punished twice for the same act. No court has ever said so, and the Interpretation Act has not said so."

 

            Accordingly, that is to say, because of the differences in the two offences, notwithstanding the identity of the act, the appellant's contention was rejected; see also R. v. Barron (5), where it was stated: -

           

            "The test is not, in our opinion, whether the facts relied upon are the same in the two trials. The question is whether the appellant has been acquitted of an offence which is the same offence. . . . ."

 

            Section 33 of the Interpretation Ordinance, 1945, (which replaces section 25 of the original Interpretation Ordinance) corresponds to section 33 of the English Interpretation Act, yet nevertheless it is not to be inferred therefrom that the rule laid down in R. v.. Thomas (4), applies equally in this country.

           

            In addition to section 33 of the Interpretation Ordinance, 1945, section 21 of the Criminal Code Ordinance, 1936, applies to our case; and in order to make comparison easier, we quote it here in its English version: -

           

            "A person cannot be twice criminally responsible either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of same other offence constituted by the act or omission."

 

            It appears that the local legislator, in the Criminal Code Ordinance, 1936, enacted something that was not provided in the English Interpretation Act or in the Interpretation Ordinance, 1945, namely, that criminal responsibility cannot be imposed twice on a person for the same act or omission; it states, "the same act", not "the same offence". This is shown by the fact that where an act which causes injury, and for which a person has been charged, causes the victim's subsequent death, the accused in England is not immune from a murder or manslaughter charge since such offence is different from that formerly charged; and so the local legislator went out of his way expressly to provide that this instance, of an act causing a person's death, is exceptional, and that the offender may be brought to trial although already once convicted in respect of the same act which constitutes a different offence.

 

            It follows that there are grounds for the view that a police officer who has been tried for a particular act by a Court of Discipline is not liable to stand trial once more before an ordinary court on a charge of a "civil offence" arising out of the same act.

           

8. Notwithstanding that conclusion, I do not think that an act which may also constitute a "civil offence", even if it be of the category of a felony, is for that reason excluded from the jurisdiction of the Court of Discipline. The truth of the matter is that most, if not all, of the list of offences defined in the High Commissioner's rules as offences prejudicial to good order and discipline are acts which, if not committed by a police officer, are not regarded as offences, and there is a plain desire on the part of the authority which made the rules to supply the particular needs of the police force by passing a law which would impose upon it order and discipline. One must not, however, conclude that the task of the Court of Discipline, or even its main task, is to investigate such offences, which are of little importance from the point of view of the public, for in section 18(1) further offences are enumerated which are also within the jurisdiction of the Court of Discipline, and among them are acts numbered among the gravest of offences for which a person may be punished under the Criminal Code Ordinance, 1936. It seems that a police officer who "incites to mutiny" may be brought to trial either before the Court of Discipline under section 18(1)(a) of the Police Ordinance, 1936, or before a civil court under section 54(b) of the Criminal Code Ordinance, 1936. In the first case, he is liable to two years' imprisonment, and in the second case, to imprisonment for life. A police officer who assists another police officer to desert from the police, is guilty of an offence under section18(1)(f) of the Police Ordinance, or under section 56(b) of the Criminal Code Ordinance, 1936. A police officer who strikes a superior officer must be tried either under section 18(1)(e) of the Police Ordinance or according to Chapter XXVII of the Criminal Code Ordinance, 1936. It can hardly be imagined that the legislator overlooked this duplicity when he empowered the Court of Discipline to deal with charges of the gravest kind - felonies - when the accused is a police officer and the Inspector General decides to convene the court to try the matter. The reason for this is that according to the original version of section 18 of the Police Ordinance the Inspector General was authorised to order the trial of a charge before the President of the District Court, like any other civil court, and only in 1959 was the Ordinance amended by transferring the matters dealt with in section 18 to Courts of Discipline that were established at the same period. It is clear that the legislator's intention was not to detract from the jurisdiction of those courts, notwithstanding the absence of legal guidance, and the withholding of a right of appeal.

 

9. An additional argument was put forward by the petitioner's counsel, mainly by Mr. Tunik, counsel for the petitioner Sapoznikov, but common to both cases. When the High Commissioner added offence No. 47 to the above mentioned list, and laid down that a police officer "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the force" is guilty of an offence to the prejudice of good order and discipline, he in fact failed to do what was imposed upon him - so Mr. Tunik contended - and did not at all define what an offence to the prejudice of good order and discipline is. Accordingly, the argument continues, the rule should be declared invalid, and in any event there is no foundation for the charge before the Court of Discipline in respect of an offence under that rule.

 

            It seems to me that the petitioners' submission is sound, and not only on the ground submitted by them.

           

            When the legislator has transferred the power of "subordinate legislation" to another public authority, the court will not be disposed, generally speaking, to restrict that power by way of construction, but will assist the legislator who, whether because of the burden of work imposed on him or because of the other authority's special knowledge, has decided to transfer to that authority some of the duties : Leyton Urban District Council v. Chew (6). How much more so will the court act in accordance with that rule if the duty of subordinate legislation is transferred to the High Commissioner in Council, who at that time was also the legislative authority and the difference between the two acts of legislation was, accordingly, purely technical.

           

            A punishment is sometimes laid down for an act prejudicial "to good order and discipline", as in section 40 of the English Army Act, and the legislator refrains from defining the nature of such an act. In that case, the duty of definition is imposed upon the court trying the charge, which has the power not only to establish facts, but also to weigh and determine whether, on the facts as found, good order and discipline have been there prejudiced. But it is clear that the local legislator did not take that course with regard to police officers' offences. The rule laid down in Upfold v. Superintendent in Charge of Prison, Acre (1), is clear, and its meaning is that, as regards offences under section 18(1)(i) of the Police Ordinance, the power given to a Military Tribunal by section 40 of the English Army Act to weigh and determine whether or not a particular act is compatible with good order and discipline, has not been given to the Court of Discipline. A condition precedent to the transfer of a police officers' trial to a Court of Discipline is, as was decided in Upfold's case (1), that the offence has been previously defined by the rules. The legislator was desirous, therefore, that the policeman should have before him a list setting out in advance how he was to conduct himself, and he cannot be brought to trial on account of any act whatsoever, unless the act has been first defined and described by the maker of the rules as a police offence.

 

10. As the learned author of the Manual of Military Law, 1951, notes in note 4 to section 40 of the English Army Act, in explaining the expression "good order and military discipline", it is not enough that a particular act is contrary to good order; an offence under the said section 40 is not committed unless the same act is also prejudicial to military discipline. The author cites, by way of example, the case of an officer dressed in civilian clothes, who disturbs a theatrical performance by talking in a loud voice. That act, the learned author infers runs counter to good order, but is not prejudicial to military discipline. He goes on to illustrate the meaning of the said section 40 with examples of improper receipt of a loan, or of unlawful possession of property, which constitute an offence if a soldier borrows money from another soldier, or if the property in question belongs to the army, but not if he borrows money from a civilian, or if the property belongs to a civilian, since in the latter two instances the element of prejudice to military discipline is once more absent.

 

            Because of the similar language of section 18(1)(i) of the Police Ordinance ("good order and discipline of the Force"), we shall be correct in examining offence No. 47 made by virtue of the said section 18(1)(i), in the light of those considerations. It obviously follows that the draftsman of the rules in no way gave thought to the fact that the task of definition placed in his hands was restricted and limited to preserving both "good order" and "discipline" in the Force. Neither of these two objects by itself is capable of serving as an element in the definition of the offence. Alternatively, offence No. 47 actually consists of: first, "disorderly conduct", and I doubt whether this is a definition at all, or whether "disorderly conduct" is not simply the opposite of the term ''conduct contrary to good order", which the draftsman set out to define; secondly, conduct likely to bring discredit on the reputation of the Force. Let us assume that a policeman in civilian clothes disturbs a theatrical performance, like the army officer mentioned in the notes to the Manual. It may be that he will be guilty of one of the two offences under offence No. 47. There is prejudice to good order here, but no prejudice to police discipline, since the police officer's act has not been done within the framework of the police or in connection therewith. It follows, therefore, that the authority which made the rules defined as an offence something liable to be prejudicial to good order only, and took no account of the fact that an act cannot be treated as an offence unless it is also prejudicial to the discipline of the police. By reason of the fact that the offence as defined also includes within its description an act which, according to section 18(1) (i), is not regarded as an offence, we are obliged to invalidate the whole rule: Scott v. Pillimer (7); so that it does not matter that, in the present case, the petitioners' acts were also to the prejudice of police discipline, since they cannot be convicted of an offence under a rule which is devoid of any effect.

 

11. The result is that the charges, to the extent that they derive from offence No. 47 have no foundation. But the petitioner Sapoznikov was also convicted according to the fact count in the charge sheet of offence No. 23, and we have found no ground for not upholding that conviction. Mr. Tunik contends that were it not for a charge sheet which contained three charges, one of offence No. 28 and two of offence No. 47, the Inspector General would not have constituted a court and would not have transferred the petitioner's case to it for investigation on one charge only. We cannot guess whether the Inspector General would have reached that or any other decision; at all events, since no defect has been disclosed in that conviction, it is not for us to interfere with it.

 

            Accordingly, in my opinion, the order nisi issued in H.C. 47/53 ought to be made absolute. The order nisi in H.C. 268/52 ought to be made absolute insofar as it relates to the conviction on the second and third counts in the charge sheet, and must be discharged insofar as it relates to the fact count therein.

           

            SILBERG J.   I concur with the judgment of my learned colleague Sussman J. Mr. Tunik's argument that in specifying offence No. 47, the High Commissioner exceeded the powers conferred upon him by section 50(1)(e) of the Police Ordinance, seems to me to be sound. In my opinion, he not only exceeded the limits of his powers, but assumed an authority which had not been conferred upon him. Section 50(1)(e) empowers the High Commissioner in Council :

           

"to define offences to the prejudice of good order and discipline."

           

            "To define", in this context, means to fill that bare description with concrete content by naming actual deeds. What, in fact, did he do? He substituted one vague meaningless concept - "the prejudicing of good order and discipline." – with another bare concept, no less ambiguous than the first, namely, "disorderly conduct or other conduct likely to bring discredit on the reputation of the Force". Is that to be treated as a definition? How much wiser are we now than we were with the first description? Moreover, by the "interpolation" of the new, meaningless definition, he has in fact changed the content and meaning of the description given in section 50(1)(e), for he has thereby set out a different standard for evaluating the act and classifying the offence.

 

            It follows that the specifying of offence No. 47 was not only "ultra vires", but altogether "extra vires" of section 50(1)(e), that it has no effect and is invalid. That being so, since the charge against the petitioner Mimran and the two convictions, the second and the third, of the petitioner Sapoznikov are based on offence No. 47, they have no foundation and the order in relation to them ought to be made absolute.

           

            OLSHAN.  It seems to me that the intention of the legislator in section 18 of the Police Ordinance was to confer jurisdiction on a disciplinary court to deal with the conduct of policemen for the purpose of stiffening the discipline of the Force and securing efficient service. Accordingly he intended to transfer to the Court of Discipline the trying of acts which are prejudicial to the discipline and good order of the Force.

           

            The said Ordinance discloses no intention to grant a special status to a police officer regarding the liability attaching to every citizen for criminal acts, in accordance with the Criminal Code Ordinance or any other law. The maximum punishment that the Court of Discipline can inflict is that of imprisonment for two years. In the light of section 21 of the Criminal Code Ordinance, which forbids the imposing of criminal liability twice for the same act (except in the case of causing death), it cannot be that the legislator intended to tighten or lessen the measure of punishment in regard to a citizen simply because he is a police officer. Were it not for the said section 21, or if the power had been given to the Court of Discipline to inflict the punishment provided in the criminal law in every case where the act is also an offence according to the criminal law, or if the discretion of the Inspector General of Police to prefer the Court of Discipline had been limited to those cases where the punishment according to the criminal law does not exceed imprisonment for two years, it might have been possible to argue that the legislator intended to make the police officer's position more severe, because the police officer, by virtue of his position, ought to serve as an example of a law-abiding citizen.

            These remarks relate in particular to criminal offences which have no special connection with the duties and work of a police officer.

           

            It is true that in section 18 of the Police Ordinance, among the paragraphs laying down the offences which may be tried before a Court of Discipline, there are offences that are also offences according to the criminal law. Paragraph (a) deals with mutiny, (b) with incitement to mutiny, (e) with the use of force towards a superior officer, (f) with desertion. But these offences are closely connected with a police officer's duties, and the legislator expressly laid them down in the above-mentioned list of offences. Notwithstanding that those offences are closely connected with the duties of a police officer, the legislator did not regard them as being included in paragraphs (h) and (i), which speak generally of offences which are prejudicial to the good order and discipline of the Force, and so laid them down expressly. If it were necessary to set out those offences separately and expressly, because they cannot be regarded as included in paragraphs (h) and (i), a fortiori that would be so as regards other offences laid down in the criminal law that have no connection whatsoever with a police officer's duties.

           

            With regard to paragraphs (a), (b), (e) and (f), since they are directly connected with a police officer's duties, it may be that the legislator treated them as cases where the efficiency of the police service would require speedy trial before a Court of Discipline. But in the absence of express provision in that Ordinance, a similar intention cannot be imputed to the legislator in regard to other offences provided in the criminal law, which have no connection whatsoever with the question of imposing discipline.

           

            If it be said that it is hard to imagine an act which is an offence according to the criminal law but not prejudicial to good order and discipline when committed by a police officer, so that the view would be correct that in paragraph (i) in section 18 power is given to the Inspector General of the Police to put a police officer on trial before a Court of Discipline for my act constituting an offence according to the criminal law, then the question may be asked as to what was the necessity for the detail in paragraph (a) to (h) in section 18.

           

            It seems to me that the construction of section 18 is that, generally speaking, the Inspector General of the Police may put a police officer on trial before a Court of Discipline for an act prejudicial to good order and discipline, and if such an act also constitutes an offence according to the criminal law, that power may be used only if the offence is mentioned expressly in the Police Ordinance, or if the element of prejudice to good order and discipline in the act imputed to the offender is decisive.

 

            Moreover, according to section 50(1)(e), the High Commissioner in Council was given the power to make rules for defining offences to the prejudice of good order and discipline. In 1941 the Police Rules were published, in which the High Commissioner in Council specified 46 offences which are deemed to be offences to the prejudice of good order and discipline. To those offences was later added offence No. 47, which dealt with a police officer "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force."

 

            In the present cases, the petitioners were brought before a Court of Discipline for tile offence specified in No. 47. There is no doubt that the act of rape imputed to the petitioner in File 47/53, constitutes disorderly conduct likely to bring discredit on the reputation of the Force, but the question arises whether, in order to bring a police officer to trial before a Court of Discipline, the offence No. 47 may be construed as if an act of rape were such an offence. For this is an act which has no direct connection with the police officer's obligations in the matter of "good order and discipline" (with the emphasis on the word "and"), or at all events where the element of prejudice to "good order and discipline" is not the element. In other words, did the High Commissioner in Council intend to include the offence of rape in the general definition in offence No. 47? And if so, a second question immediately arises, namely, was it within the power of the High Commissioner in Council to do so by way of rule-making ?

           

            I think that the answer is in the negative. According to Articles 39, 40 and 41 of the Order in Council, the trial of criminal matters is entrusted to the courts mentioned therein. The Court of Discipline is not numbered among them. Article 38 of the Order in Council (as amended in 1935) states :

           

            "Subject to the provisions of this part of this 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. . . . ."

           

            It states, "according to the provisions of any Ordinance", not "according to a regulation".

           

            As stated, the trial of criminal offences is entrusted to the courts mentioned in Articles 39, 40 and 41. Then came the Police Ordinance which enabled a Court of Discipline to try, among other things, mutiny, incitement to mutiny and desertion when committed by a police officer. As this was done by Ordinance, it does not in any way offend against the Order in Council. But could the High Commissioner in Council (the intention being not the High Commissioner as legislator – see the Interpretation Ordinance) establish by Way of regulation a Court of Discipline with jurisdiction to try an act of rape, an offence under the criminal law which is not mentioned in the Police Ordinance? The answer seems to me to be in the negative, for the establishing of a court also involves defining its jurisdiction and jurisdiction cannot generally be created by regulation (Lipshitz v Valero (2)). And if it be said that only the establishment of a court need be made by Ordinance and the extension or restriction of its jurisdiction can be effected by regulation then in the present case section 50(1)(e) of the Police Ordinance cannot be construed as conferring such a power on the High Commissioner in Council. The offences which can constitute the subject-matter of a trial by a Court of Discipline are laid down in section 18 of the Police Ordinance. The High Commissioner was only given the power to "define" the offences included in paragraph (i) of section 18. When the legislator wanted also to include in section 18 three or four offences under the Criminal Code Ordinance, because they are closely connected with police service, he did so expressly in the Ordinance itself. It cannot be that by giving power to define the acts constituting an offence "to the prejudice of good order and discipline", the power was also given to add other offences of the criminal law which have no direct and close connection with police service. The High Commissioner was given the power "to define" the offences that are "prejudicial to good order and discipline", but "to define" means to explain and enumerate the acts that are deemed to be included in the above-mentioned offences laid down in paragraphs (h) and (i) in section 18 of the Ordinance, and it is not to be construed as giving power to insert wholesale into section 18 of the Ordinance all the offences in the ordinary criminal law. As I have already explained above, had such an intention existed - because every offence without exception is to the prejudice of good order and discipline when committed by a police officer - then there would have been no necessity for all the detail in section 18 and for giving the High Commissioner the power under section 50(1)(e). Instead, one section alone would have sufficed, which contained a provision that any police officer committing any criminal offence or acting in a disorderly manner or in any manner likely to bring discredit upon the Force, may be put on trial before a Court of Discipline.

 

            I think, therefore, that in offence No. 47, the High Commissioner in Council did not intend, nor could he possibly have intended, to include the offence with which the petitioner in H.C. 47/'53 is charged, namely, an act of rape.

            Accordingly, I think that it is impossible to bring the charge of committing an act of rape before the Court of Discipline, for that offence is not included in offence No. 47. It should be emphasized that there is no charge here of using a police car for private benefit, a matter which could have been included among the offences that are within the jurisdiction of the Court of Discipline. Here the charge is of committing an act of rape, a matter which is not, in my opinion, within the jurisdiction of the Court of Discipline. A distinction must be made between a charge of using a police car for private benefit without permission (be it even for the purpose of an act of rape) and a charge of rape, for they are separate acts, and section 21 of the Criminal Code does not apply to them.1) Let us assume that the petitioner had been brought before the District Court and found guilty of an act of rape. That finding could not serve to prevent the petitioner from being punished in n Court of Discipline for using a police car without permission (that no such additional charge would, out of fairness, be brought does not alter the principle). Or, let us assume that the petitioner had been brought before the District Court and acquitted because the act had been committed with the woman's consent. That, too, could not serve to prevent the petitioner from being punished for using a police car without permission.

 

            It is not always easy to fix the line dividing a criminal offence according to the criminal law from an offence to the prejudice "of good order and discipline", which is included within the jurisdiction of the Court of Discipline. In such a case, the test is, in my opinion, whether the decisive element in the offence imputed to the police officer is the prejudice to good order and discipline.

           

            When we read the offences in the second and third counts with which the petitioner Sapoznikov was charged, it can be seen at first glance that they are the offences mentioned in section 207 of the Customs Ordinance.

           

            In the second count, the petitioner was charged with attempting to conceal from the customs officials a consignment of medical supplies, which had been brought into the country without a proper import licence, and which were hidden among knives, spoons and forks.

 

            In the third count, he was charged with inducing a customs officer to permit him to take the goods out of the customs warehouse.

           

            It is clear that the charge against this petitioner was not that "being a police officer, he made an arrangement to prevent the seizure of goods liable to forfeiture." Furthermore, he was not charged that, being a police officer, he gave or promised to give the customs official a bribe or recompense in order to induce him to neglect his duty - offences included in section 207.

           

            It was not stated in those charges that the petitioner had some part in the bringing in of the goods by the owner without an import licence; he was not charged with making an "arrangement" in order to prevent the seizure of forfeited goods; no mention is made at all of whether the goods were liable to be forfeited or not; nothing at all is said as to what was his purpose in trying to conceal from the customs official...... It is not even stated that he thereby assisted in the smuggling.

           

            It is clear that the charges were not directed to offences under the Customs Ordinance, but only to the petitioner's conduct as a police officer who fulfilled no duty in the customs offices, and who instead of disclosing the matter to the customs officials, tried to conceal it.

           

            It cannot be said therefore, that offence No. 47 does not apply here.

           

            As to the application of offence No. 47, I regret that I must disagree with the opinion of my colleague, Sussman J.

           

            I do not think that offence No. 47 specified by the High Commissioner is invalid. By section 50(1)(e), the High Commissioner is given the power to define the offences which are prejudicial to good order and discipline. Accordingly, it was the duty of the High Commissioner, as was explained in Unfold v. Superintendent of Acre Prison (1), to describe or to draft a series of acts which are to be regarded as offences to the prejudice of good order and discipline. For that purpose he specified not just one offence, but all forty-seven. Offence No. 47 comes only as an addition to all the offences which he had specified under the previous forty-six heads. It is true that the drafting of offence No. 47, unlike the others, is too vague, but for all that there is in it an indication of certain conduct which is to be regarded as being to the prejudice of good order and discipline. Just as the first offence, for example, contains an instruction to the Court of Discipline that disobedience by a police officer to an order of a superior in rank is deemed to be an offence to the prejudice of good order and discipline, so offence No. 47 contains an instruction to the Court of Discipline that a police officer acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force is deemed to be an offender guilty of an offence to the prejudice of good order and discipline.

           

            By section 50(1)(e) of the Police Ordinance, the power is given to the High Commissioner to give such an instruction, that is, the power to order that such conduct shall be deemed an offence to the prejudice of good order and discipline, and it cannot be said that offence No. 47 is null and void just because in some cases the Court of Discipline may have difficulty in determining whether the given conduct, for which a police officer has been brought before it, is disorderly conduct, within the meaning of that offence. Also, should that difficulty arise, it will be a question of construing offence No. 47, and the construction is not so difficult if one remembers that it has to be construed in the light of section 50(1)(e), under the authority of which that offence was specified.

           

            Also, in the example quoted by my learned colleague from the Manual of Military Law, if such a ease is brought before the Court of Discipline of our Police according to offence No. 47, that court will be able to reach the same conclusion. The Court of Discipline will pose the question whether the High Commissioner intended to include such conduct in offence No. 47, and will be able to arrive at the same conclusion and to answer the question in the negative. The outstanding factor in offence No. 47 is conduct likely to bring discredit on the reputation of the Force. Every police officer must act properly and he is ordered not to bring discredit on the reputation of the Force. The High Commissioner provided in offence No. 47 that conduct contrary to that offence is conduct contrary to good order and discipline. Since the Law granted him the power so to provide, we cannot say that by specifying that offence be exceeded his jurisdiction. As for the argument that his drafting is too vague, I do not think that that is a defect capable of invalidating the offence, in the same way that we would not on that ground invalidate, for example, the offence of "unprofessional conduct" in the Advocates Ordinance, or the offence in section 105 of the Criminal Code Ordinance - an act causing public mischief, and the like. As stated, certain conduct was defined in offence No. 47, and I do not think that its drafting is more vague than the above-mentioned examples.

           

            Accordingly, I find no ground for interfering in the case of the petitioner Sapoznikov, and I think that the order nisi issued on his application ought to be discharged. As to the petitioner Mimran, I think that the order nisi should be made absolute.

 

Order nisi in the petition of Sapoznikov made absolute as to the conviction on the last two counts, and discharged as to the conviction on the first count; order nisi in the petition of Mimran made absolute.

 

Judgment given on May 31, 1953.

 


1) Police Ordinance, s. 18(1):

Courts of Discipline for trial of certain offences (as amended No. 42 of 1939)

18.    (1) It shall be lawful for the Inspector-General, as occasion arises, to constitute Courts of Discipline for the trial of police officers who have committed one or more of the following offences and any such police officer may be arrested and detained in the manner provided in section 17(1): -

 

(a)     begins, raises, abets, countenances, incites or encourages any mutiny;

(b)     causes or joins in any sedition or disturbances whatsoever;

(c)      being at an assembly tending to riot, does not use his utmost endeavour to suppress such assembly;

(d)     having knowledge of any mutiny, riot, sedition or civil commotion or intended mutiny, riot, sedition or civil commotion, does not, without delay, give information thereof to his superior officer;

(e)      strikes, or offers violence to, his superior officer, such officer being in the execution of his duty;

(f)      deserts, or aids or abets the desertion of any police officer, from the Force;

(g)      displays cowardice in the execution of his duty;

(h)     is repeatedly guilty of serious offences to the prejudice of good order and discipline;

(added, No. 4 of 1946)

(i)       any offence contrary to the good order and discipline of the Force which the Inspector-General considers should be tried by a Court of Discipline

 

1) Criminal Code Ordinance, 1936, s. 152:

Rape, sexual and unnatural offences

152.        (1)           Any person who:

(a)     has unlawful sexual intercourse with a female against her will by the use of force or threats of death or severe bodily harm, or when she is in a state of unconsciousness or otherwise incapable of resisting; or

(b)     commits an act of sodomy with any person against his will by the use of force or threats of death or severe bodily harm, or when he is in a state of unconsciousness or otherwise incapable of resisting; or

(c)     has unlawful sexual intercourse or commits an act of sodomy with a child under the age of sixteen years,

is guilty of a felony and is liable to imprisonment for fourteen years. If such felony is committed under paragraph (a) hereof it is termed rape:

                Provided that it shall be a sufficient defence to any charge of having unlawful sexual intercourse with a female under paragraph (c) of this subsection if it shall be made to appear to the court before which the charge shall be brought that the person so charged had reasonable cause to believe that the female was of or above the age of sixteen years

 

                (2)           Any person who: -

(a)      has carnal knowledge of any person against the order of nature; or

(b)      has carnal knowledge of an animal or

(c)     permits a male person to have carnal knowledge of him or her against the order of nature

is guilty of a felony, and is liable to imprisonment for ten years.

 

1) Criminal Code Ordinance, 1936. s. 21:

Persons not to be twice criminally responsible for same offence.

21. A Person cannot be twice criminally responsible either under the provisions of this Code or under the provisions of any other law for the same act or emission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.

 

Flatto-Sharon v. State of Israel

Case/docket number: 
CrimA 71/83
Date Decided: 
Wednesday, June 27, 1984
Decision Type: 
Appellate
Abstract: 

The Appellants in the appeal and cross appeal of the judgment given by the Magistrate's Court were convicted for conspiracy to commit a felony pursuant to section 499 of the Penal Law, 5737-1977, and for election bribery under section 122(1) of the Knesset Election Law [Consolidated Version], 5729-1969. This followed a campaign for election to the Knesset whereby their faction included a promise to provide housing at low rental and on convenient terms in apartments which Appellant No. 1 would purchase with his own funds and with funds of investors over whom he enjoyed personal influence. It was also held that the Appellants' list paid numerous activists remuneration on election day for work that was not in fact performed. On the other hand, the Appellants were acquitted of similar offences attributed to them in connection with dispensing funds to certain public and community leaders in order that those persons would then exercise their influence over their followers, and with providing funds to a list vying for election to a local municipality in exchange for influencing its followers to vote for the Appellants' Knesset List. From this follow the appeal and cross appeal to the Supreme Court.

 

 

The Supreme Court gave judgment as follows:

 

A.    The essence of a free election is not merely physical freedom to cast one's ballot in the booth, but more importantly, one's absolute intellectual and psychological freedom to participate in the election process. Any action that either restricts or denies the voter's freedom of thought or expression be it by bestowing upon him a benefit or by coercing him to accept the views of another violates the basic principle of honest, independent elections. [p. 758]

 

B.    (1)    An offence under section 122(1) of the Knesset Election Law requires proof that a bribe was given or offered, with the intent of influencing the voter.

        (2)    Section 123 of the Knesset Election Law adopts for purposes of bribery the principles established under section 293 of the Penal Law, mutatis mutandis.

 

C.    (1)    To prove the elements of bribery under the Penal Law, the State must establish beyond reasonable doubt: that a public servant is involved; that there was the taking or giving of a benefit in the form of a bribe; that the giving or taking was in exchange for a certain activity which itself was connected to the employee's duties; and that the giving or taking of the bribe was done with the intent of obtaining some material benefit, either immediately or at an appropriate time in the future.

        (2)    In viewing the facts in their entirety, attention should be paid not only to the facts as they appear on the surface, but also to the entire fabric of relations between the giver and the taker, as well as the explicit and implicit intent of the actors. The intent of the legislator with respect to the norm that he intended to achieve must be considered vis a vis what the giver and taker of the benefit sought to accomplish by their acts.

 

D.    There is no requirement of mutuality of intent between the giver and the taker of a bribe. In principle, there is nothing to prevent a situation whereby the giver is innocent while the taker is guilty, or vice versa.

 

E.     The offence of campaign bribery under section 122(1) of the Knesset Law lies in the very act that an offer is made.

 

F.     (1)    An error attributable to the legal interpretation of a norm is not a defence under section 12 of the Penal Law.

        (2)    The fact that criminal acts committed in the past went unpunished does not sanction the commission of such acts now or in the future.

        (3)    Mistake in a legal norm or unpunished acts in the past may be raised, if at all, in connection with the severity of the punishment meted out by claiming that the absence of clear precedents or guide-lines left the campaign activists unaware of the full significance of their conduct.

 

G.    (1)    Whether a certain platform is legal or not depends upon an examination of the particular facts, the explicit and implicit contents of the platform, and the manner of its presentation to the public.

        (2)    A platform proposing a solution to the problem of housing is legal; however, if the platform contains not only a plan of action, but also a promise to certain voters that if they vote for a specific candidate, they will obtain housing on attractive terms, it is illicit and tainted by election bribery. [p. 759]

 

H.    (1)    While acts of charity by candidates should not be forbidden, they should be done discreetly.

        (2)    Because acts of charity or the dispensing of favours close to an election could serve as a camouflage for bribery of voters, the true intent of the person dispensing the favour should be closely examined.

        (3)    If the motive is genuine, then the intent is proper. If, however, the purpose is to garner votes on election day, then the intent is illegal.

        (4)    If both motives are present, the intent that actually guided the actor is the determinative one.

        (5)    In examining intent, one may be assisted by precedent and by logic.

 

I.      (1)    In examining the organizational and publicity aspects of a campaign, one starts from the fact that the use of paid election activists is not illegal.

        (2)    However, if the activist has no real function to perform in the campaign, and the only reason for his salary is to influence him and his family to vote for a certain candidate, the payment is tainted by election bribery and he who makes such a payment has committed election bribery under the Knesset Election Law.

        (3)    One should carefully examine the circumstances under which a worker purports to be engaged in organizational activities in exchange for payment.

 

J.     Pseudo-employment is characterized by the following: general apathy on the part of the candidate regarding what the employee will do; the lack of a genuine need for the services of the employee either in whole or in part; employing workers out of all proportion to the number of voters in the locale; and lack of proportion between what the worker does and the amount of his remuneration, and between the number of voters in an area and the amount of money expended in hiring campaign workers there.

 

K.    There is nothing illegal in community or public leaders identifying with a certain candidate in seeking to promote his candidacy by appealing to their followers. However, while such an alliance is proper if based on an affinity of idea or position, it is illegal if based on direct payment to the leaders in exchange for their support and the support of their followers. [p. 760]

 

L.     That the recipient of a payment was not a person of influence is irrelevant if the person giving the payment intended that the recipient exercise his authority over his followers.

 

M.    (1)    As in the case of employing campaign workers, dispensing a favour for both pure as well as corrupt purposes is also considered an election bribe.

        (2)    In examining intent, one must consider whether bona fide campaign activity was the primary consideration received in exchange for the payment, or whether the payment was given in order to secure the vote of that person as well as those subject to his influence. If the latter is the case, then the payment is an election bribe.

 

N.    (1)    Mutual assistance between two parties or movements is proper so long as the alliance is based on an affinity of ideas or personalities. However, if the assistance of one party to another has an ulterior motive, such as monetary help or a deal to buy the influence of one party on behalf of another, then the alliance may be illegal because it is intended to dispense a favour in exchange for obtaining influence over potential voters.

        (2)    The principles established in connection with buying the influence of leaders applies in even greater force to an alliance between two parties.

 

O.    Section 123(2) of the Knesset Election Law forbidding the giving of a bribe to influence the conduct of a third party does not depend upon how much influence is wielded. Buying influence of any degree is forbidden, and the influence bought need not necessarily be of one, the supposed benefactor, whose command is obeyed blindly by a certain group.

 

P.     The Knesset Election Law does not recognize vicarious liability for offences committed by a list's activists. Therefore, the leadership of a list can be held liable only if the acts were committed at their initiative, approval or assistance.

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

 

Crim. A. 71/83

 

1. SHMUEL FLATTO-SHARON

2. YA'ACOV BEN UDIS

3. YA'ACOV HALFON

v.

STATE OF ISRAEL AND CROSS APPEAL

 

 

In the Supreme Court sitting as a Court for Criminal Appeals

[June 27, 1984]

Before: Bejski J., D. Levin J. and Netanyahu J.

 

 

Penal Law 5737-1977, Sefer HaChukkim 226, sections 12, 17, 32, 242, 292, 499; Knesset Election Law [Consolidated Version], 5729-1969, Sefer HaChukkim 103, sections 122 (amended: Sefer Hachukkim 5727 74), 122(1), 122(2), 122(3), 122(4) 122(5), 123, 123(2).

 

 

 

            The Appellants in the appeal and cross appeal of the judgment given by the Magistrate's Court were convicted for conspiracy to commit a felony pursuant to section 499 of the Penal Law, 5737-1977, and for election bribery under section 122(1) of the Knesset Election Law [Consolidated Version], 5729-1969. This followed a campaign for election to the Knesset whereby their faction included a promise to provide housing at low rental and on convenient terms in apartments which Appellant No. 1 would purchase with his own funds and with funds of investors over whom he enjoyed personal influence. It was also held that the Appellants' list paid numerous activists remuneration on election day for work that was not in fact performed. On the other hand, the Appellants were acquitted of similar offences attributed to them in connection with dispensing funds to certain public and community leaders in order that those persons would then exercise their influence over their followers, and with providing funds to a list vying for election to a local municipality in exchange for influencing its followers to vote for the Appellants' Knesset List. From this follow the appeal and cross appeal to the Supreme Court.

 

 

The Supreme Court gave judgment as follows:

A.    The essence of a free election is not merely physical freedom to cast one's ballot in the booth, but more importantly, one's absolute intellectual and psychological freedom to participate in the election process. Any action that either restricts or denies the voter's freedom of thought or expression be it by bestowing upon him a benefit or by coercing him to accept the views of another violates the basic principle of honest, independent elections. [p. 758]

 

B.    (1)    An offence under section 122(1) of the Knesset Election Law requires proof that a bribe was given or offered, with the intent of influencing the voter.

        (2)    Section 123 of the Knesset Election Law adopts for purposes of bribery the principles established under section 293 of the Penal Law, mutatis mutandis.

 

C.    (1)    To prove the elements of bribery under the Penal Law, the State must establish beyond reasonable doubt: that a public servant is involved; that there was the taking or giving of a benefit in the form of a bribe; that the giving or taking was in exchange for a certain activity which itself was connected to the employee's duties; and that the giving or taking of the bribe was done with the intent of obtaining some material benefit, either immediately or at an appropriate time in the future.

        (2)    In viewing the facts in their entirety, attention should be paid not only to the facts as they appear on the surface, but also to the entire fabric of relations between the giver and the taker, as well as the explicit and implicit intent of the actors. The intent of the legislator with respect to the norm that he intended to achieve must be considered vis a vis what the giver and taker of the benefit sought to accomplish by their acts.

 

D.    There is no requirement of mutuality of intent between the giver and the taker of a bribe. In principle, there is nothing to prevent a situation whereby the giver is innocent while the taker is guilty, or vice versa.

 

E.     The offence of campaign bribery under section 122(1) of the Knesset Law lies in the very act that an offer is made.

 

F.     (1)    An error attributable to the legal interpretation of a norm is not a defence under section 12 of the Penal Law.

        (2)    The fact that criminal acts committed in the past went unpunished does not sanction the commission of such acts now or in the future.

        (3)    Mistake in a legal norm or unpunished acts in the past may be raised, if at all, in connection with the severity of the punishment meted out by claiming that the absence of clear precedents or guide-lines left the campaign activists unaware of the full significance of their conduct.

 

G.    (1)    Whether a certain platform is legal or not depends upon an examination of the particular facts, the explicit and implicit contents of the platform, and the manner of its presentation to the public.

        (2)    A platform proposing a solution to the problem of housing is legal; however, if the platform contains not only a plan of action, but also a promise to certain voters that if they vote for a specific candidate, they will obtain housing on attractive terms, it is illicit and tainted by election bribery. [p. 759]

 

H.    (1)    While acts of charity by candidates should not be forbidden, they should be done discreetly.

        (2)    Because acts of charity or the dispensing of favours close to an election could serve as a camouflage for bribery of voters, the true intent of the person dispensing the favour should be closely examined.

        (3)    If the motive is genuine, then the intent is proper. If, however, the purpose is to garner votes on election day, then the intent is illegal.

        (4)    If both motives are present, the intent that actually guided the actor is the determinative one.

        (5)    In examining intent, one may be assisted by precedent and by logic.

 

I.      (1)    In examining the organizational and publicity aspects of a campaign, one starts from the fact that the use of paid election activists is not illegal.

        (2)    However, if the activist has no real function to perform in the campaign, and the only reason for his salary is to influence him and his family to vote for a certain candidate, the payment is tainted by election bribery and he who makes such a payment has committed election bribery under the Knesset Election Law.

        (3)    One should carefully examine the circumstances under which a worker purports to be engaged in organizational activities in exchange for payment.

 

J.     Pseudo-employment is characterized by the following: general apathy on the part of the candidate regarding what the employee will do; the lack of a genuine need for the services of the employee either in whole or in part; employing workers out of all proportion to the number of voters in the locale; and lack of proportion between what the worker does and the amount of his remuneration, and between the number of voters in an area and the amount of money expended in hiring campaign workers there.

 

K.    There is nothing illegal in community or public leaders identifying with a certain candidate in seeking to promote his candidacy by appealing to their followers. However, while such an alliance is proper if based on an affinity of idea or position, it is illegal if based on direct payment to the leaders in exchange for their support and the support of their followers. [p. 760]

 

L.     That the recipient of a payment was not a person of influence is irrelevant if the person giving the payment intended that the recipient exercise his authority over his followers.

 

M.    (1)    As in the case of employing campaign workers, dispensing a favour for both pure as well as corrupt purposes is also considered an election bribe.

        (2)    In examining intent, one must consider whether bona fide campaign activity was the primary consideration received in exchange for the payment, or whether the payment was given in order to secure the vote of that person as well as those subject to his influence. If the latter is the case, then the payment is an election bribe.

 

N.    (1)    Mutual assistance between two parties or movements is proper so long as the alliance is based on an affinity of ideas or personalities. However, if the assistance of one party to another has an ulterior motive, such as monetary help or a deal to buy the influence of one party on behalf of another, then the alliance may be illegal because it is intended to dispense a favour in exchange for obtaining influence over potential voters.

        (2)    The principles established in connection with buying the influence of leaders applies in even greater force to an alliance between two parties.

 

O.    Section 123(2) of the Knesset Election Law forbidding the giving of a bribe to influence the conduct of a third party does not depend upon how much influence is wielded. Buying influence of any degree is forbidden, and the influence bought need not necessarily be of one, the supposed benefactor, whose command is obeyed blindly by a certain group.

 

P.     The Knesset Election Law does not recognize vicarious liability for offences committed by a list's activists. Therefore, the leadership of a list can be held liable only if the acts were committed at their initiative, approval or assistance.

 

 

 

Supreme Court Judgments cited:

 

[1]   C.A. 481/73 Rosenberg, Adv. Executor of the Estate of EIza Bergman v. Shtoessel, P.D. 29(1), 505.

[2]   Cr.A. 647/75, Klein et al. v. The State of Israel, P.D. 30(3), 275.

[3]   Cr.A. 126/76, The State of Israel v. Sheffer, P.D. 30(3), 466.

[4]   Cr.A. 216/75, Tamir v. The State of Israel, P.D. 30(2), 169.

[5]   Cr.A. 108/54, The Legal Counsel to the State of Israel v. Abadi et al., P.D. 9, 199; P.I. 19, 78.

[6]   Cr.A. 794/77, Hayat v. The State of Israel, P.D. 32(2), 127.

[7]   Cr.A. 257/79, Seviri v. The State of Israel, and cross-appeal, P.D. 34(3), 757.

[8]   Cr.A. 265/70, The State of Israel v. Lateen, P.D. 24(2), 677.

[9]   Cr.A. 763/77, Beriga v. The State of Israel, P.D. 32(2), 824.

[10] Cr.A. 190/82, Marcus v. The State of Israel and cross-appeal, P.D. 37(1), 225.

[11] Cr.A. 365, 383/81, Oshri et al. v. The State of Israel, P.D. 39(1), 113.

 

Sources in Jewish Law which are cited:

[A]      Deuteronomy16; 19.

[B]       Exodus 23; 9.

[C]       Ketubot 105b.

[D]      Mechilta (Horovitz), Mishpatim, XX 328.

[E]       Responsa Hatam Sofer, H.M. 105.

[F]       Responsa Minhat Eliezer, 16.

 

            Appeal and cross-appeal by leave from the judgment of the Jerusalem District Court (Judges A. Goldberg, D. Tal, Sh. Brenner) given on January 11, 1983 in Cr.A. 237, 293/81 in which the appeal and cross-appeal from the judgment of the Jerusalem Magistrate's Court was accepted in part (Judges Y. Or and D. Cohen).

            The appeal and the cross-appeal were accepted in part.

           

            S. Toussia-Cohen for Appellant No. 1 (Respondent No. 1 on cross-appeal).

            Y. Lalo for Appellant No. 2 (Respondent No. 2 on cross-appeal).

            M. Kirsch and Y. Roznik for the Respondent (The Appellant on cross-appeal).

           

           

           

JUDGMENT

           

The Background

           

            D. LEVIN, J. 1. The election campaign to the ninth Knesset was distinguished by a colourful and unusual phenomenon. Among the lists that contested for representation in this Knesset was a one-man list signified by "F'SH" and whose slogan was "Flatto-Sharon - the one man - for the Knesset."

            Shmuel Flatto-Sharon (Appellant No. 1, hereafter referred to as "Flatto-Sharon") was presented to the Israeli public as a wealthy person, a man of property, economically powerful, a person whose talents and initiative were worthy of support. This man had been mercilessly pursued by the French authorities, who accused him of committing business-related crimes while he was living and active in that country. The State of Israel was asked to extradite him to France so that he should stand trial there.

            At the focus of the message of Flatto-Sharon's list to the nation during its election campaign were two central themes, as follows:

            A. If Flatto-Sharon were to be elected a member of the Knesset, his extradition to the maws of French justice would be prevented, and he would be saved from the danger, distress, and discomfort awaiting him upon extradition. Therefore, a vote for him would mean that a talented, productive individual would be saved for the benefit of Israel society.

            B. Flatto-Sharon formulated a plan for a radical solution to the problem of housing (hereinafter: "The RSH Program"), which he intended to implement and carry out, irrespective of his election to the Knesset. The program, as presented and understood both explicitly and implicitly was, in short, that he, together with serious entrepreneurs and with the help of economic experts close to him, would acquire approximately fifteen thousand flats from the Housing Ministry for rental on convenient, equal terms to families of limited means and to young couples. This was the socio-economic message upon which the F'SH platform was based, the glad tidings that Flatto-Sharon brought to the voting public. His election to the Knesset would enable him to exercise his influence even more and to be at the center of socio-political activity; thus, it would help him further his program. [p. 763]

 

2. Flatto-Sharon does not have a command of Hebrew, and he therefore recruited as his right-hand man and confidant Appellant No. 2, Jacques Ben Udis (hereinafter: Ben Udis), who served as his mouthpiece (as a translator), advisor, organizer and as an effective and dynamic administrator.

 

3. Neither Flatto-Sharon nor Ben Udis was experienced at Knesset electioneering. Therefore, they engaged the services of one who was adept and experienced in this area, Appellant No. 3, Ya'acov Halfon (hereinafter: Halfon), who characterizes himself as a veteran professional in organizing campaigns for election to governmental and public institutions. He considers himself as possessing skills, experience and knowledge, and as one who knows how to organize efficient campaigns to attract supporters to vote for a certain candidate on election day. Halfon took upon himself the co-ordination of the organizational aspect of the election campaign of the F'SH list, and, during the elections he indeed showed substantial dynamism in promoting Flatto-Sharon's election, as will become clear later on.

 

4. The trio effectively constituted the leadership that guided the one-man Knesset list. They regularly conferred together, giving advice on and planning the campaign. They crossed the width and breadth of the country, and they established nearly 40 branches throughout the country, especially in development towns and settlements in the Arab sector. In all of these places, they conducted rallies and meetings, and attracted a large number of activists. The Appellants' widespread, diverse activities and the publicity campaign were craftily planned, and yielded impressive results for Flatto-Sharon, the one-man list. Not only did he surpass the one-percent threshold, but he was elected a member of the Knesset. In effect, he gathered support for the list that clearly exceeded what was required for the election of one person to the Knesset.

 

5. Not long thereafter, complaints began to be raised concerning Flatto-Sharon's fitness for election to the Knesset.

            Suspicions were raised against him, as well as against his confidants Ben Udis and Halfon who, in effect, assisted him in his election campaign, alleging corruption in promoting Flatto-Sharon's election. It was said that they had conspired to bring about Flatto-Sharon's election to the Knesset by dispensing bribes to the voters, and that through such bribes, as well as through other benefits that they conferred or promised to confer on various groups of activists and voters in general, the F'SH list garnered a large number of votes.

            The elections took place in May 1977; however, the investigation continued for a long time thereafter due to the complexity of the matter and of the events under investigation, and a charge sheet was filed in the Jerusalem Magistrates' Court only on August 8, 1979.

            Because of the importance and complexity of the case, as reflected in the substance and the scope of the charge sheet, the President of the Jerusalem Magistrates' Court decided to hold the trial before a panel of three judges. The case in its various phases continued for a lengthy period of time, so that the final decision was rendered seven years after the election. [p. 764]

           

           

THE CHARGE SHEET AND THE DECISIONS RENDERED

IN ACCORDANCE THEREWITH

 

6.         The charge sheet consists of a general section and five separate counts.

            A. The Appellants were acquitted in the trial court on the fourth count from the offence alleged therein on the view of the prosecutor because the facts on which the count was based were not proven at all.

            B. The State charged in the first count that the Appellants conspired to commit a felony, an offence under section 499 of the Penal Law, 5737-1977, and corruption (election bribery), an offence under section 122(1) of the Knesset Election Law (Consolidated Version), 5729-1969. The facts supporting this count were that in the election campaign of the F'SH list, Flatto-Sharon represented himself as someone who, together with a group of investors subject to his influence, was about to acquire flats at various locations in Israel to be rented out at a reduced price to those requiring some solution to their housing problems, viz., young couples and those with limited means. Flatto-Sharon voiced this message in his appeals to the public throughout the country, both orally and in writing; in delivering the message, making the offers and giving the promises, he was assisted by the other accused herein as well as by activists employed by them. According to the State, the acts of corruption that emerge from the facts as we shall set out in further detail later consisted of the offers and undertakings that were woven into the message, all made for the purpose of influencing the voting group in need of housing to vote for the F'SH list by promising some amorphous benefit from Flatto-Sharon's program whereby everyone interested would be granted low rental housing at very convenient terms.

 

            C. Count 2 charged the Appellants with corruption, as indicated above, by "camouflaged employment" of many activists on election day, whereby these workers were given a payment for "this disguised, camouflaged employment" in connection with activity that took place only figuratively. On the basis of the details recounted in the charge sheet, the State alleged that a large portion of these activists were not called upon to perform any work in exchange for the "remuneration" that they received, and that the payment in respect of their "activities," which, as indicated, did not actually take place, was a form of bribe to these persons so that they and their relatives would vote for the F'SH list.

            D. Count 3 also charges the three Appellants with the aforementioned acts of corruption. It charges that the Appellants gave a number of people, who may be described as community and public leaders, sums of money in exchange for which they were to influence their followers to vote for the F'SH list on election day. [p. 765]

           

            E. Count 5 charges Appellants 1 and 2 with conspiracy to commit a felony and with acts of bribery as mentioned above. According to this count, with the help of local activists in the city of Dimona, the two conspired with a group of residents that had been organized to vie a list for election to the Dimona municipal council, which was to take place a short time after the Knesset elections. This list, whose organizers and promoters chose the symbol RT (i.e., the "Pure List"), reached an arrangement through several of its main activists with the aforementioned Appellants, whereby the two lists would assist each other's election campaigns. RT would influence its supporters, estimated by its leaders to be some 2,000 strong, to vote for the F'SH list in the elections for the ninth Knesset, in exchange for which Flatto-Sharon would assist them in their contest for the city council by putting at their disposal an imprecisely specified sum of money for their election campaign, described by Ben Udis to be in the area of six figures. The State charges that this amounted to a promise by the Appellants of an unlawful benefit in favour of RT in order to obtain the votes of RT supporters in Dimona for the F'SH list to the Knesset.

           

7. A lengthy, thorough trial of this case was held in the Magistrates' Court (hereinafter: "the trial court"), and in three detailed, thorough, in-depth opinions, written by each of the learned judges that sat on the panel hearing the case, it was decided as follows:

            Flatto-Sharon and Ben Udis were unanimously convicted of the offences that were the subject of counts 1 and 5, while Halfon was acquitted on these counts. Concerning count 2, the learned Judge R. Or, in a minority opinion, held that the Appellants should be convicted on this count as well; however, in the opinion of the majority, learned Judges Shabtai and Dr. Cohen, guilt was not adequately proved; accordingly, the Appellants were acquitted on this count. The Appellants were similarly acquitted on count 3. Flatto-Sharon was sentenced to a period of three years imprisonment, nine months of which were to be served, for the commission of each of the two offences for which he was convicted, the remainder to be a suspended sentence in accordance with the terms specified in the judgment. The two terms were to be served concurrently. Ben Udis was sentenced to a period of 18 months imprisonment, all of which was to be a suspended sentence in accordance with the terms of the sentence. In addition, Ben Udis was fined the sum of 4,000 sheqalim (2,000 sheqalim for each offence) or 80 days in prison in lieu thereof.

           

8. Neither the State nor the Appellants who were convicted, were satisfied with the decision of the trial court, and each appealed to the Jerusalem District Court (hereinafter: the court of appeals), each on separate grounds and with different aims in mind.

            The State appealed the acquittals of all three Appellants on counts 2 and 3, and the lighter sentence imposed on Ben Udis. For their parts, Flatto-Sharon and Ben Udis each filed a separate appeal in which each took issue with their convictions on counts 1 and 5 and, alternatively, with the severity of their sentences. [p. 766]

           

9. The court of appeals heard all three appeals on a consolidated basis and in its judgment, none of the issues was unanimously decided. The court of appeals reversed the decision of the trial court on some counts on which Appellants 1 and 2 had been convicted, as well as on some counts on which the three Appellants had been acquitted. Thus, the court of appeals decided as follows:

            A. In so far as count 1 is concerned, it affirmed the conviction of Appellants 1 and 2 and the acquittal of Appellant 3.

            B. In so far as count 2 is concerned, the majority decided to convict the three Appellants on the charges alleged therein.

            C. In so far as count 3 is concerned, the acquittal of the Appellants by the trial court was affirmed.

            D. Regarding count 5, the convictions were overturned, and Appellants 1 and 2 were acquitted on the charges alleged therein.

            E. Regarding the sentence, it was unanimously decided to reject Ben Udis' appeal. The majority also decided to reject the appeal of Flatto-Sharon, and to reinstate the sentences handed down by the trial court notwithstanding the different conclusions reached by the trial court regarding conviction.

            The minority judge in the court of appeals, the Deputy President, A. Goldberg, held that only three months imprisonment from the 18-month sentence imposed on Flatto-Sharon was appropriate.

            F. Halfon was first convicted by the court of appeals, which sentenced him to a six-month suspended sentence, on condition that for a period of three years he would not commit an offence under section 122 of the Knesset Election Law [Consolidated Version].

           

10. Once again, the parties were not satisfied with the decision rendered by the court of appeals, and each of them filed for leave to appeal the decision, which was granted by the President of this court. Thus, we have before us four separate appeals, which we have decided to hear on a consolidated basis. The accused, Flatto-Sharon and Ben Udis, both appealed their convictions on counts 1 and 2 of the charge sheet, and the sentence laid down and reinstated against them. Appellant Halfon appealed his conviction on the charge in count 2. The State for its part appealed the acquittal of the three accused on the charges in count 3, and the acquittal of Flatto-Sharon and Ben Udis from the charges in count 5; in this regard, the State seeks to reinstate the judgment of the trial court. [p. 767]

 

 

 

 

THE PRINCIPLE OF FREE ELECTIONS IN A DEMOCRATIC SOCIETY

 

11. This case deals with one of the fundamental, crucial elements of a democratic society, which has been a bedrock of the system of government in effect since the founding of our country, and of which we are proud. Thus, the case before us is of cardinal importance, and it justifies the broad, in-depth treatment by the trial court and the exhaustive, instructive hearing before us.

 

12. Political democracy is, first and foremost, a system by which, through competition for sanctioned authority, persons are elected to lead the body politic: G. Sartory, Democratic Theory (Detroit, 1962) 124. One can state that contemporary democratic society incorporates two principles: minority control of the majority, in other words, democracy is a political system which guarantees the influence enjoyed by the minority over the majority, who compete for the votes of the electors and are elected by them, and who for a time are entrusted with managing the affairs of the state. (See p. 127 at ibid.).

 

13. In Israel the democratic system is implemented by means of the proportional representation method, which satisfies the basic principles of a democratic regime. An instructive, exhaustive explanation of this form of representation is given by J. F. Ross in his book Elections and Electors, Studies in Democratic Representation (London, 1955), at 12:

 

"Proportional representation, then, is the principle that in a party election.... the distribution of seats on the elected body between the parties shall correspond with the distribution of their votes by the electors. Or, putting it into other words, we may say that the principle of proportional representation requires that the distribution of opinion in the elected body shall correspond with the distribution of opinion amongst the voters who elected it." [p. 768]

 

            Thus, the system of proportional representation attempts to ensure the realizations of the important principle in democratic elections, namely, that the public opinion and the people's will be accurately reflected, so that it may guide the party in power, whilst limiting the ability of the party to abuse the authority that has been given to it by virtue of the will of the majority, and by reflecting the majority's desired policies. The thread connecting the philosophy of the citizen to his elected representatives, who are supposed to express his desires and represent his views in the legislature, is the election platform, that is to say, the ideological foundation formulated by the candidates and presented to the public in order to influence the voter on election day. The platform is supposed to articulate the basic principles and the policy that represent the philosophy of the candidate and the political body he represents. It is possible that this platform will be a broad one, encompassing all matters of the state and the citizen, but it is also possible that it will be narrow and circumscribed and will articulate a formulated policy in specific areas; sometimes, emphasis in the platform will be on means of action, while at other times it will concentrate on a person or on a leader, and will seek identification with that person and belief in that person's ability to lead the people in the proper, correct manner. The common element here is that all candidates for election, who seek the voter's confidence and promise to represent his views and desires, set forth the principles of their policy and their political leanings by way of publicity and propaganda. The voter casts his ballot, therefore, for the list of candidates whose platform comes closest to his own inclinations.

           

14. In order to achieve this important, basic goal, namely, proper, genuine proportional representation of the opinions and views of the community of voters in the legislature of the state, the Knesset, and in order to make certain and to ensure that those elected will not abuse the prerogatives of their elected office, scrupulous attention must be paid that the elections will be free and without any taint of coercion, unfair influence or corruption, and that it be clear that the citizen, in exercising his right to vote and in implementing his political will by means of the ballot, has done so freely and in accordance with his unfettered judgment. A coerced election or a bought election distorts and perverts the fundamental principles of genuine democracy. Depriving the voters of the freedom of choice and of independent deliberation shatters and destroys the heart and soul of the democratic system, which should be preserved and maintained in order that power will not be turned over to persons who will seek to impose their views on everyone else.

 

15. The key to the process of free elections is that the voter, and he alone, at his discretion and of his own free will, shall decide who will be the preferred leaders and who, in his view, are fit to lead the people and to improve the citizen's lot. This requires exercising a certain degree of independent judgment. Sometimes it will be deliberate, serious and profound, and sometimes it will turn out to have been done in error, rashly and naively; but always, and this is the essence of the matter, it is the true, willful choice of the voter, reflecting the will of that citizen at that time. There is no doubt that this vote will be influenced by various factors, including a proper, legal campaign of information and publicity waged by the parties and lists contending for the elector's vote, namely the platform which is presented to the voter, which may on the surface seem colourful and optimistic, and perhaps even illusory and evocative of false hopes. It is reasonable that the judgment and choice of the voter will also be influenced by the lessons learned from the past and from the achievements or failures of the administration that formerly guided the affairs of state, all in accordance with the citizen's particular views and approach. However, the vote may not be influenced by improper favours and corruption on the part of those contending for the elector's vote, acts that negate the independence of the voter and his freedom of choice. Therefore, the Israeli legislator attended to maintaining clean elections through rules prescribed in the Knesset Elections Law [Consolidated Version] (hereinafter: the Election Law). [p. 769]

 

THE MEANING OF "BRIBERY, CORRUPTION AND

ELECTION BRIBERY"

 

16. Section 122 of the Election Law provides that an act intended to obtain a citizen's vote by an act of bribery or by means of threats, or in other words, as I described above, by way of a forced or bought vote, is an offence justifying harsh punishment either by imprisonment or fine. Subsections (1), (2) and (4) of section 122, that are the important sections for our purposes, discuss a wide variety of acts of bribery that are intended to influence the vote of the elector by dispensing favours. Subsections (3) and (5) deal with acts intended to obtain the vote of an elector by various types of threats. The common element to all these acts is that, whether due to a bribe or whether due to submission in the face of threats, the voter is denied his freedom and is deprived of his independent and free will at the time of his vote.

            In our situation, subsection (1) of section 122 includes:

           

"a person who gives or offers a bribe for the purpose of inducing a voter to vote or refrain from voting, whether generally or for a particular candidate's list. "

 

            It is absolutely clear and incontrovertible that in order to establish this offence, one must prove that a bribe was given or offered, and must show that such giving or offer was intended to influence the voter in his vote. One may ask the question - What is the meaning of "bribery?" Section 123 of the Election Law basically adopts, mutatis mutandis, the rules prescribed in section 293 of the Penal Law regarding bribery, and therefore we will quote section 123 for ease of subsequent discussion:

 

"With regard to a bribe, it shall be immaterial -

            (1) whether it is money, money's worth, a service or any other benefit, except transportation of a voter in a vehicle to and from the polling-station for the purpose of his voting;

            (2) whether it is for an act of the taker himself or for his influence upon an act of another person;

            (3) whether it is given by the giver personally or through another person, whether it is given to the taker personally or to another person for the taker, whether it is given in advance or ex post facto, or whether the person benefiting from it is the taker or another person." [p. 770]

           

            Another question that we shall address is the degree of intent that must be proved regarding undue influence on the voter in connection with his vote.

            Prima facie, one might ask what the reason is for this prohibition against influencing the voter by way of dispensing favours. After all, the recipient of a favour exercises his civil right to vote, and he votes for whom he wants, so what consequence is it if his choice is influenced by a payment or by a favour, so long as his freedom to exercise his right to vote in accordance with his wishes was not taken from him. Anyone asking this question should be enlightened and made to see and understand correctly what genuine democratic elections are all about, as explained above. Freedom of choice election means not merely the physical freedom to cast a ballot in the booth, but also, and principally, the complete freedom to go through the voting process as a free person, both psychologically and intellectually. Therefore, any act that may reduce or eliminate, either directly or indirectly, the voter's freedom of thought and his ability to give genuine expression to his preferred plan of action and his philosophy in accordance with his independent judgment - because of a favour that inhibits his freedom or because the opinions of others have been imposed on him - violates the basic principle of freedom and independence of choice. Hence, acts such as these are fundamentally improper. A different or less harsh approach to this subject, that would reconcile itself with conduct of this type and that would follow it, would necessarily undermine the democratic process and would distort its character, because the inevitable result would be that he who pays the piper would call the tune, as well as exercising the reins of power with all that it implies; there can be no greater perversion of the principle of the democratic system in an enlightened society.

           

17. In light of the foregoing, in establishing for ourselves the boundaries of conduct that amounts to election bribery, we should examine the accepted interpretation of the offence of bribery under the penal laws. In doing so, we must examine the legislator's intent as it can be understood from its definition in both the letter and spirit of the law, and according to the legislative purpose that is implicit in the provisions of the law and the interpretation thereof in the case law. "The law is a mechanism for carrying out legislative purpose, and therefore it should be interpreted according to the purpose inherent therein" (C. A. 481/73 [1], p. 516). The words of the law do not always in themselves give a clear, unqualified meaning to the expressions contained therein; therefore, it is proper for the judge in interpreting the law to ask himself what normative, social goal this law is seeking to accomplish, inasmuch as:

 

"The law is an expression of policy..... The words of the law were chosen because they were intended to realize a certain policy. Interpretation is, therefore, a process intended to uncover from among the range of possibilities in the language that meaning that will give realization to the law's purpose..... Just as the law is a 'purposeful creation,' so too is interpretation a 'purposeful process' " (A. Barak, On the Judge as Interpreter, 12 Mishpatim (5742-43), 248, 252). [p. 771]

 

            Thus, the issue of a bribe that was given to or received by a public employee has been broadly, consistently, and thoroughly interpreted in accordance with its legislative purpose. One can summarize matters generally as follows: In order to prove all of the elements of a charge of bribery under the penal laws, the prosecution must prove that a public servant was involved; that a favour in form of a bribe was taken or given; that the taking or giving was for an activity connected with the public servant's duty; and that the giving or taking of the bribe was with the intention of obtaining a substantial result, either immediately or at some other time. All these elements require proof. Since we are dealing here with a criminal proceeding, which requires proof of the elements of the offence beyond reasonable doubt, when all of the evidence is taken together, generally in light of the totality of the circumstances, attention should be paid not only to the obvious facts, but also to what these facts imply, the logic embedded therein and the fabric of relations between the giver and the taker; their desires and hidden intentions should be examined, as should other signs, indications and elements that become evident or are reasonable from the recounting and unfolding of the event. This is because when all of these factors are interwoven with each other, they establish the probative evidence as well as define the boundaries of the act in its proper square - whether the square is white, bearing testimony that the act is untainted, or if the square be black, bearing testimony that the act is improper. In examining the circumstances in their entirety, it is important that the examination be done with a comprehensive, realistic and careful assessment of the case, but not necessarily rigidly and punctiliously, provided that we always keep before us, on the one hand -what the purpose of the legislative act is, and what the legislative norm is that the legislator seeks to accomplish, and on the other hand - what the giver or the taker sought to obtain from the act. The foregoing is a summary of the extensive case law on this subject, and it is sufficient to point to several judgments in which rules bearing thereupon have been set down and reviewed (Cr. A. 647/75 [2]; Cr. A. 108/54 [5], and others).

           

18. When an offence of bribery committed by a public employee is proven, everyone will denounce him vociferously because of this. Why? Because, in effect, he has abused his position and has violated the trust given to him as a public servant. From the normative point of view, it is expected that a public servant will fulfil his duty and will exercise the authority given to him to the best of his discretion in a business-like fashion by thinking and deciding freely. A public servant who takes a bribe forfeits his own will and subjugates his freedom of thought to the will of the giver, who thereby seeks to achieve his desired purpose. This is why the matter is viewed so seriously. This is the result that the legislator sought to prevent in promulgating this legislation, because it disrupts proper administration and harms its integrity.

            Thus, bribery generally, and election bribery a fortiori, as explained above, is meant to subjugate the will and freedom of choice of the citizen, and to render his vote, which should be free and independent, dependent on something else. The purpose of the law is to prevent this situation and to preserve the integrity of the election.

           

19. We will discuss later in the appropriate context the principles regarding bribery and election bribery that have been set down in Israeli and English case law. However, it seems to us that it would be instructive and useful to describe the treatment of fraud in the Jewish tradition and in Jewish law. Bribery is viewed extremely negatively, in Jewish law and tradition. We already find in the Scriptures how negatively our forefathers viewed the act of bribery, which they condemned in absolute terms as follows: [p. 772]

 

"Thou shalt not wrest judgment; thou shalt not respect persons; neither shalt thou take a gift; for a gift doth blind the eyes of the wise, and pervert the words of the righteous" (Deuteronomy 16; 19 [Jewish Publication Society Translation] [A]).

 

And further:

 

"And thou shalt take no gift; for a gift blindeth them that have sight, and perverteth the words of the righteous" (Exodus 23; 8 [Jewish Publication Society Translation] [B]).

 

            The following brief, but bold words from the Tractate Ketubot 105b [C] are also apt here:

           

"The rabbis taught: 'thou shalt take no gift' means not only a monetary gift, but even verbal corruption is forbidden, since the bible does not say 'thou shalt take no bribe.' "

 

The Tractate continues:

 

"What does verbal bribery mean? It means, for example, as in the case of Shmuel, who whilst crossing the bridge encountered a man who proffered his hand.

Said Shmuel: 'Who are you?' He replied: 'You are to sit in judgment on my case?' Shmuel answered: 'I am disqualified from hearing your case.' "

 

            In other words, even if the benefit lay only in the fact that the person assisted Samuel, nevertheless, when it was understood that he was about to stand before him in judgment, that alone was grounds for disqualification. The Tractate Ketubim continues:

           

"Where there is bribery, the hearts of the giver and of the taker become one. Says Rava: Why is bribery forbidden? It is because someone who takes a bribe from another favours him and is as one with him, and nobody would do wrong to himself." (See also Mechilta (Horovitz), Mishpatim, XX 328[D]).

 

            That is to say, from the moment that a person takes a bribe from another, he forfeits his selfhood with respect to that person, and he no longer enjoys the same freedom of decision or ability to make an independent judgment on merits.

            This strict prohibition against bribery in Jewish tradition is not limited only to judges, but applies to everyone dealing in public affairs; such persons must act equitably and faithfully, and their decisions must be without taint or blemish. The Rabbinic arbiters of Jewish law went even further, maintaining that:

           

"The prohibition against the taking of a bribe applies not merely to a judge, but to all those appointed over and who deal with public matters, even if their decisions are not, strictly speaking, religious law, and they may not deviate from the law because of liking or disliking, and certainly not by taking bribes." [p. 773]

 

            So our sages ruled and held regarding bribery generally and what we call election bribery. Rabbi Moshe Sofer, among the most prominent Hungarian rabbis (during the late 18th century and early 19th century), held even then that if competent witnesses testify that some of the electorate for the community rabbi took bribes, the election is void and new elections must be held. The Rabbi went further, holding that "if the witnesses testify that the rabbi himself instructed that the bribes be given, he is disqualified from serving as a rabbi until he repents." With respect to those taking the bribes, some took the position that they were disqualified from appointment to a public position, and in any event they were not allowed to participate in the re-election for the community rabbi, even if they returned the bribe, repented, and swore on oath that they would not repeat such a misdeed in the future. The reason for this was explained as follows:

           

"...because they already favour him, they will not retract their actions and they remain biased forever."

 

            See Responsa Hatam Sofer, H.M. 105[E] and see also Responsa Minhat Eliezer, 16[F]. For references to their opinions, see the volume of A. Shoheman, Deeds Accomplished Through the Violation of Law (Hebrew). (Jerusalem, 5741), 232.

           

THE ASPECTS OF THE CHARGE SHEET

 

20. In examining the charges alleged against the Appellants in the charge sheet to the effect that their Knesset campaign conduct was tainted by election bribery, there are four different aspects to which we will relate as follows:

 

            A. The programmatic aspect - Was the platform presented by the Appellants to the public tainted by bribery? This subject was discussed at length by the lower courts in connection with Count 1.

            B. The organizational aspect - Did the extent and the way in which the Appellants employed activists stray into the realm of the grant of impermissible favours? This will be addressed in our discussion and examination of Count 2.

            C. The nature of the influence - Did the Appellants acquire, by means of favours, influence over community leaders and personalities so that the latter would influence the members of these communities to vote blindly for the F'SH list at their leaders' behest? This is the bone of contention regarding Count 3.

            D. The "deal"- Was the agreement between the F'SH list and the RT list that was supposed to compete in the local Dimona elections an illicit transaction reeking of the odour of bought votes? This is the subject of Count 5 of the charge sheet. [p. 774]

           

           

           

PRINCIPLES REGARDING THE SCOPE OF INVOLVEMENT

           

21. Pending our treatment of each of these aspects of the charge sheet, this is a convenient spot to address a number of legal issues whose resolution at this juncture, even before I address each of the subjects separately, is desirable:

 

            A. Does liability, under the penal laws and under section 122(1) of the Election Law, on the part of one who gives a bribe depend on proving a corrupt intent on the part of the bribe's recipient as well?

            The law on this matter is that with respect to the crime of bribery there is no need for there to be mutuality of intent between the giver and the recipient of the bribe. This rule has been established in Israel in connection with bribing a public official:

           

"In principle, there is nothing to prevent a situation in which the taker of a bribe is innocent while the giver is liable for bribery, or vice versa. The lack of mutuality may be due to the different intent of each party at the time the act was carried out" (Ben-Porat, J. (as was her title then) Cr. A. 794/77 [6]) pp. 128-129.

 

She continued:

 

"In my opinion, there is a possibility of non-mutuality in both cases: In the second case - when the giver of the bribe intended to bribe a public official who himself was not aware of such intent; and in the first case - the official demanded payment as a bribe whereas the giver was not aware of that" (ibid., p. 129).

 

            This principle has been established in England in connection with election bribery:

           

"Where the intention of the giver is proved to be corrupt the intention of the recipient becomes immaterial so far as concerns the offence of bribery by the former." (J.F.N. Rogers, On Elections (20th ed., Vol. 2, 1928) 269.

 

            B. Is the criminal act (the actus reus) of the offence of bribery under section 122(1) of the Election Law consummated by a promise which is a form of an offer of, or must the offer itself be realized in order to establish this element of the offence?

            From the point of view of the offerer of the bribe, the criminal act is consummated as a component of the offence of bribery with the very act of the offer. Section 122(1) of the law prescribes this explicitly when it speaks of "one who gives or offers a bribe in order to influence...." Also in English law, a promise of a favour is enough to consummate the criminal act required of someone who offers an election bribe, but stronger evidence is required that the offer was a bribe (see, Representation of the People Act, 1949, c. 99(2), and the same holds true at common law. See, for example, Coventry Election Petition (1869) [12]. [p. 775]

           

            C. Can the Appellants' claim that they did not consider their acts and promises to fall within the prohibition established by section 122(1) provide a defence against their conviction?

            The Appellants do not claim lack of knowledge of the prohibition in the law against election bribery, nor do they claim mistake of fact within the meaning of section 17 of the Penal Law. Rather, they claim that they did not know that their acts fell within the scope of the normative prohibition of section 122 of the Law. The answer to their claim is found in section 12 of the Penal Law, which provides that:

           

"Ignorance of the law shall not serve as the basis for exemption from criminal responsibility, unless it is specifically provided that knowledge of the law is one of the necessary elements of the crime."

 

            An exhaustive rule in connection with the interpretation of this section was set down in Cr. A. 257/79 [7], at 773:

           

"The provision of section 12 regarding lack of knowledge of the law which does not excuse criminal liability relates to the offence itself, that is to say, the accused is not entitled to argue that he did not know that a certain act is prohibited under the Penal Law. However, when knowledge of the existence of a certain legal condition constitutes one of the elements of the commission of the offence, then a good faith mistake by the accused concerning the existence or non-existence of this element is a mistake of fact.

Regarding the rule that ignorance of the law is no excuse, it has been held that it applies only to the criminal law, and ignorance of the non-criminal law does not fall within the rule..." (Emphasis added - D.L.).

 

            In our situation, we are dealing with a criminal norm (section 122(1)), and the Appellant's claim concerning the legal construction of the norm. This type of mistake does not fall within the scope of the defence afforded by section 12 of the Penal Law (see the article of Prof. S. Z. Feller, Mistake in Criminal Law and in Extra-Criminal Law: Where is the Boundary? Mishpatim 5 (5734), pp. 508, 511-12). We add here, for purposes of comparison only, that in the United States there is no uniform legislation concerning mistake of the type mentioned above with respect to the promises of an election candidate (see, for example, 26 Am. Jur. 2d (Rochester and San Francisco, 1966), at 108).

           

            D. Can the claim of the Appellants, and in particular that of Halfon, that the actions attributed to them in the four counts reflect the accepted manner of elections in Israel, provide a defence?

            The answer to this question is no. This claim cannot provide a defence against the Appellants' conviction, if indeed they are found guilty, because the fact of the commission of unpunished criminal acts by others in the past does not validate the commission of these acts in the present or in the future.

Similarly, in connection with the custom of distributing holiday presents to public servants by those with whom they have contact, it was held in Cr. A. 126/76, p. 470, that: [p. 776]

 

"The fact that others give with the same intention and for the same purpose does not alter the character of this particular act of giving, nor does it make this objectionable custom a legally proper act."

 

            This argument, as well as the claim regarding the lack of knowledge concerning the correct normative interpretation of the Appellants' actions, may be heard, if at all, in connection with the degree of the punishment to be meted out because there, due to the lack of prior case law on the subject, it is possible that the campaign activists were not properly warned and made aware of the significance of their conduct.

 

THE PRAGMATIC ASPECT - THE RSH PROGRAM (COUNT 1)

           

22. It is only natural that every candidate or list of candidates will at campaign time seek to capture the heart and mind of the voter by means of an attractive platform. I have already indicated above that a platform may either be broad, serious, and directed to the issues, or narrow, simplistic, and directed to unattainable aspirations; it may either articulate the fundamental outline of a clear, pragmatic policy, or it may be general, non-obligatory, and unattainable - both are proper, legally speaking, and it is the voter who by his vote decides the seriousness of the platform and of the candidates who stand behind it.

            A candidate may view as a panacea a solution of the problems of housing for those of limited means and for young couples, proposing ideas to this end and focusing his election campaign on this issue. This type of platform is proper, and should not be invalidated. However, if such a platform includes, for example, not merely a plan of action and details on how it can be realized, but an actual promise to give residential apartments on tempting terms, to a certain voter or group of voters who vote for that candidate, then such a platform will be deemed invalid and tainted by election bribery.

            Between these two possibilities - the first legitimate and the second illicit - there is a broad expanse within which various appeals to the voting public will be marginal in terms of legitimacy. Putting the platform into its proper category, as either legitimate or illicit, requires examination of the particular circumstances of each situation; evaluation of the platform's contents and its significance, explicitly or implicitly; and evaluation of how it is presented to the public, and application of the legal principles reviewed above to these.

            Therefore, in approaching the decision of the lower courts in connection with Count 1, we ask ourselves - What has been proven concerning the ideological platform of the F'SH list, which concentrated on the RSH program (Revolutionary Solutions for Housing)? What are the ensuing legal conclusions regarding the legality of this platform, and was the RSH program as presented by the F'SH list tainted, as alleged, by election bribery? [p. 777]

           

23. The court of appeals adopted the principal findings of fact of the trial court (pp. 3-7, 11 of the decision of the court of appeals), and we see no reason to interfere with or to alter these findings. The principal facts established are as follows:

            A. Housing was the central issue in Flatto-Sharon's election advertising.

            B. The election advertising emphasized that apartments would be acquired through Flatto-Sharon's resources and through the resources of investors under his influence.

            C. Flatto-Sharon had the intentionally cultivated image of a wealthy person who was financially capable of delivering what he promised. This image contributed to lending a degree of credibility to his promise.

            D. At various opportunities prior to the election, Flatto-Sharon's undertaking to purchase 500 apartments in Kiryat Shmona for subsequent rental at a low price to young couples was stressed.

            E. On April 26, 1977, Flatto-Sharon held an election rally at Physicians House in Tel Aviv at which he announced that he intended to purchase 20,000 apartments for subsequent rental at a low price to young couples.

            This plan was also announced at election rallies at other sites in Israel, in newspaper advertisements (E/58, E/117, A/4-B, and in a publicity film strip aired on television (A/A-36A).

            F. Not only was the plan presented and promises to make good on it publicized and articulated, but representatives of the list initiated and conducted registration of young couples interested in solving their housing problems in this manner. Actual registration was conducted as follows:

            (1) Before and after the gathering at Physicians House.

            (2) At the F'SH list's branch in Dimona, through witnesses Rachel Cohen, Marco Zanti and their helpers, pursuant to Ben Udis' instructions for conducting the registration.

           

            (3) In Bet Shemesh, after an election rally there on the evening prior to the elections by the local co-ordinator for the F'SH list in accordance with Ben Udis' guidelines.

            (4) In Ashkelon, registration was conducted by the local co-ordinator for the F'SH list, also in accordance with Ben Udis' guidelines.

            G. The purpose of the registration was not, in Ben Udis' words, to establish a "movement," but to provide real solutions from private sources to the problem of housing, and on the basis of this promise to acquire the votes of the plan's registrants for the F'SH list. [p. 778]

           

            The trial court decided on the basis of these proven facts that a promise of residential apartments at a low rental was an illegal favour. Such a favour was indeed offered to the voters by Flatto-Sharon and Ben Udis; thus, the required causal connection between the favour as offered and the vote as cast by the voters was established. Accordingly, the plan as presented to the voters, especially in tandem with the registration campaign, was tainted with election bribery, and those responsible are guilty of the acts attributed to them in Count 1.

            The court of appeals took issue with the trial court on two points:

            A. In light of the "common sense" test set down by the court in determining the meaning of bribery under section 122(1) of the Election Law, the court of appeals held in contrast to the trial court, that the advertisements that were taken out by the F'SH list, in which young couples were called upon to participate in the RSH plan, was not an offer of a bribe but rather election advertising. The reason for this was that the advertisements failed to mention the source of the funds for purchasing the apartments, nor did they suggest that joining the "movement" would solve one's housing problems. The court of appeals further held that for the purpose of deciding whether the housing plan was an offer of a bribe to voters, the court would view the factual situation in entirety rather than splitting it up into discrete factors. Thus, the fact that the advertisements are not per se an offer of a bribe was not enough to rule out the conclusion that given the entire factual context, the offer of a bribe occurred. I accept the approach of the court of appeals, and thus I will deal with the facts and circumstances in their totality and draw my conclusions accordingly.

            B. The trial court felt it necessary to clarify whether the causal connection between the offered favour and the actual vote had been proven. The court of appeals was of the opinion that because everything done in the election campaign was for the purpose of influencing the voter, the question that needed to be answered was not the extent of the causal connection, but rather if the facts involved an offer of bribery. If the answer is yes, then the conclusion that follows is that the offer was intended to influence the voters.

           

24. Presentation of the aforementioned housing plan raises, as aforesaid, the following basic legal question: What is the difference between an election platform, which by its nature includes the promise to do good, which may be permissibly presented to the voting public, and does not constitute bribery and express or implied promises of favours as compared to the same platform, which might be regarded as being tainted with bribery?

            The distinction required to answer this question as I presented it has been made in American courts, and it appears to me that the principles that have been established in these judgments are also applicable to the Israeli electoral system.

            In the case of Prentiss v. Dittmar, Judge Jones held on page 1022 as follows: [p. 779