The Supreme Court sitting as the Court of Criminal Appeals
Criminal Appeal 2144/08
Before:	The honorable Justice A. Procaccia The honorable Justice M. Naor The honorable Justice E. Rubinstein

 

The Appellant:

Abraham Mondrowitz

 

v.

 

The Respondent:	State of Israel
	Appeal from the judgment of the Jerusalem District Court on February 10, 2008, in Misc. Motions file 10302/07, rendered by the Honorable Judge N. Ben-Or

 

On behalf of the Appellant:	Eitan Maoz, attorney at law; Nati Simchoni, attorney at law; Oren Aderet, attorney at law
On behalf of the Respondent:	Merlin Mazal, attorney at law; Nili Gesser, attorney at law

 

 

Judgment

 

Justice A. Procaccia:

 

              This is an appeal from the judgment of the Jerusalem District Court (the honorable Judge N. Ben-Or) which ruled that the state’s motion to declare the Appellant extraditable to the United States should be granted, for the purpose of trying him on criminal charges there for grave sexual offenses against minors, allegedly committed by him in the 1980s.

 

The factual background and the legal proceedings

 

1.           The Appellant, born in 1947, is a psychologist by profession, and was a resident and citizen of the United States until 1984. In November 1984, the Appellant arrived in Israel; in 1996 he received Israeli citizenship; he has lived in Israel from the time of his arrival to this day, and has not left its borders.

 

2.           During November 1984, the New York police opened a criminal investigation against the Appellant, on the suspicion that he had committed various sexual offenses against minors. In December 1984, a warrant was issued for his arrest; a short time thereafter, the New York police learned that he had fled to Israel. In February 1985, an indictment was brought against the Appellant in a New York court. In that indictment, which remains in effect to this day, the Appellant was charged with five counts of first-degree sodomy under Article 130.50 of the penal law of the State of New York; eight counts of first-degree sexual abuse under Article 130.65 of the aforementioned law; and another count for the offense of endangering the welfare of a minor under Article 260.10 of said law. Said offenses were alleged to have been committed by the Appellant in his home between 1980 and 1984; the victims were five boys, minors at that time, aged nine to fifteen.

 

3.           On the basis of the indictment that was filed, in February 1985 a New York court issued a warrant for the arrest of the Appellant, which remains in effect to this day. Another arrest warrant was issued against him by a federal court because of the suspicion that he had fled illegally from the United States in order to evade the law. This order remained in effect for 10 years until it was canceled in February 1995.

 

4.           In March 1985, the United States Department of Justice sent a request to the State of Israel to arrest the Appellant based on the indictment that had been brought against him, until an official extradition request could be submitted in the matter. In May 1985, the Israeli Ministry of Foreign Affairs responded that it could not accede to the request that had been submitted by the United States, because the offenses attributed to the Appellant were not “extraditable offenses” in accordance with the existing extradition treaty between the government of the State of Israel and the government of the United States, which was signed in Washington on December 10, 1962, and went into effect on December 5, 1963 (the Convention on Extradition Between the Government of the State of Israel and the Government of the United States of America, Convention 505 documents, Volume 13, at p. 795; hereinafter: the Convention of Extradition or the Convention). At the time that Israel’s response was given to the request by the United States to arrest the Appellant, Article II of the Convention contained a list of 30 offenses defined as “extraditable offenses.” Among them was the crime of rape. However, the offenses with which the Appellant was charged in the indictment - sodomy, sexual abuse and endangering the welfare of a minor - were not included in the detailed listing of “extraditable offenses” in the Convention. As will be explained below, the offenses listed in the indictment against the Appellant were always compatible with the definition of “extraditable offenses” under Israel’s Extradition Law and the amendments thereto. The obstacle to extradition focused on the definition of “extraditable offense” in the Convention between Israel and the United States, which did not include the indictment offenses within the realm of “extraditable offenses” under the Convention. On that basis, Israel notified the United States that it would not be able to accede to its request to arrest the Appellant, thereby enabling extradition proceedings to begin.

 

5.           In July 1987, at the request of the FBI, Interpol issued a “Red Notice” in the matter of the Appellant. That Notice contained a national arrest warrant, along with a request to the effect that if the Appellant should be located, he should be arrested immediately as a candidate for extradition (hereinafter: the Red Notice).

 

6.           In 1988, an amendment to the Penal Law, 5737-1977 (hereinafter: the Penal Law) was passed in which, inter alia, the definition of the offense of sodomy was changed, and it established that “a person who commits an act of sodomy on another person under one of the circumstances enumerated in Article 345, mutatis mutandis, shall be deemed equivalent to a rapist” (Article 347 (B) of the Penal Law; the Penal Law (Amendment No. 22) 5748-1988, Compendium of Laws 5748 1246, at p. 62; the bill and explanations were published in the Penal Law Bill (Amendment No. 26) 5746-1986, 303). The day after the amendment to the law was passed, the Israeli authorities notified the American authorities that the Israeli law in that context had been amended and that, under the amendment, an act of sodomy in the circumstances of rape was now deemed equivalent to rape. This notice did not lead to an extradition request from the United States government. Their position was that said amendment in the Israeli law did not change the legal situation, which had prevented the extradition of the Appellant to the United States in the past, and that only by means of a suitable amendment to the Convention would it be possible to overcome the legal obstacle and implement his extradition. The letter P/1 indicates that, when the request to arrest the Appellant in 1985 failed, the competent entities in the United States reached the conclusion that only a suitable amendment to the definition of “extraditable offenses” in the Convention may lead to his extradition.

 

7.           When the competent authorities in the United States learned that, in the existing situation, the extradition and trial of the Appellant could not progress, they gradually began to close the files that were pending against him. Thus, in July 1993, the United States Department of State returned the extradition documents in the matter of the Appellant to the Department for International Agreements and International Litigation of the Ministry of Justice; in September 1993, the Kings County prosecuting authorities advised that they would not continue to handle the matter as long as he was not returned to the United States or arrested in another place; subsequently, the International Department issued an administrative closure of the file; in January 1995, the New York police closed the file that had been opened by its offices; in February 1995, the federal arrest warrant was canceled; in April 1995, the FBI notified Interpol of the closure of the file against the Appellant; and in June 1995, Interpol canceled the Red Notice. However, the indictment and the original arrest warrant remained in effect the entire time.

 

8.           Along with all of the above, official contacts began between the government of Israel and the government of the United States to amend the Convention. These contacts only bore fruit in July 2005, when the parties signed a protocol to amend the Convention, establishing that the list of “extraditable offenses” contained in Article 2 of the Convention up to that time would be replaced with a general provision stating that any offense for which the maximum punishment is one or more years’ imprisonment would be deemed an “extraditable offense.” This amendment in the protocol went into effect in January 2007 (hereinafter: the Amendment to the Convention or the Amending Protocol).

 

              It should also be noted that until 2001, the Extradition Law, 5714-1954 (hereinafter: the Extradition Law or the Law) had defined an “extraditable offense” in accordance with Article 2 of the Law, with a reference to an addendum to the Law. This addendum included details of various offenses, including the offenses that constitute the object of the indictment against the Appellant. The 2001 amendment to the Law states that an “extraditable offense” is any offense which, had it been committed in Israel, would have been punishable by one year’s imprisonment or a more severe sentence. The wording of the Amendment to the Convention, which was implemented in 2005 for the purpose of defining “extraditable offenses,” followed that of the 2001 amendment to the Extradition Law.

 

9.           On the basis of the amendment to the definition of “extraditable offenses” in the Convention, in September 2007 the government of the United States submitted a request to Israel to extradite the Appellant into its custody for the criminal offenses attributed to him. In November 2007, the Appellant was arrested in Israel by the Israel police under Article 6 of the Extradition Law. A short time thereafter, a petition was filed before the Jerusalem District Court to declare the Appellant extraditable to the United States, and his arrest was extended until the conclusion of the extradition proceedings.

 

10.         In the District Court, the Appellant claimed that he could not be extradited to the United States because of the existence of three exceptions to the extradition, which are set forth in the Extradition Law: first, he claimed that the offenses attributed to him in the American indictment had lapsed under the  laws of the State of Israel, and, therefore, the exception of limitation for extradition under Article 2B (A) (6) of the Extradition Law was fulfilled; second, he claimed that he was cleared of the offenses in the United States, and, therefore, the exception of limitation for extradition under Article 2B (A) (7) of the Extradition Law was fulfilled; and third, he claimed that his extradition would offend “public policy” in Israel, and, therefore, the exception set forth in the provision of Article 2B (A) (8) of the Extradition Law was fulfilled. The Appellant further argued that the doctrine of “abuse of process” was available to him due to the long period of time that had elapsed since the offenses attributed to him were committed, and in view of the substantial delay that occurred in filing the request to extradite him.

 

              In a detailed and reasoned judgment, the District Court denied these arguments one by one and declared the Appellant extraditable to the United States. The appeal before us turns on this declaration.

 

The judgment of the District Court

 

11.         With regard to the issue of the statute of limitations, the District Court relied on Article 9 of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereinafter: the Criminal Procedure Law), under which the statute of limitations for a felony is ten years from the date on which the offense is committed. It was determined that this provision applies to the Appellant, but under Article 9 (C) of this Law, there are events that toll the running of the limitation period and lead to the beginning of its counting anew. These events also apply to extradition proceedings. For the purpose of deciding, the Court posed three questions: First - Would it have been possible to extradite the Appellant to the United States as of 1988, when the Israeli Penal Law was amended; and, alternatively, would it have been possible to try him in Israel under Article 15 of the Penal Law? Second - If it had been impossible to extradite the Appellant, does this have a ramification for the tolling of the limitation period? Third - Might Article 94A of the Criminal Procedure Law serve as the basis for tolling the limitation period if the impossibility of the extradition itself does not serve to suspend it?

 

12.         The Court decided these questions as follows: First - It rejected the argument that it would have been possible to extradite the Appellant back in 1988, in view of the amendment to the Penal Law which states that an act of sodomy under circumstances of rape is equivalent to rape. The Court stated that, until the Amendment to the Convention in 2007, it would not have been possible to extradite the Appellant to the United States, since the aforesaid amendment to the Penal Law did not create a complete overlap between the sodomy offense and the rape offense, nor did it cancel the independent status of each of the offenses in question. Hence, even after the amendment to the Penal Law, the legal situation with regard to the extraditable offenses remained as it was, and the offenses with which the Appellant had been charged did not constitute “extraditable offenses.” According to the Court, even if internal Israeli law was changed, it did not affect the provisions of the Convention, which show that, until the amendment in 2007, the offense of sodomy, like the other offenses attributed to the Appellant, remained excluded from the list of “extraditable offenses,” and he could not be extradited for them.

 

              Second, the District Court rejected the Appellant’s argument that there was no impediment to trying him in Israel and since the Israeli authorities had refrained from doing so, the acts attributed to him were subject to the statue of limitations. In this context, the Court ruled that, while the penal laws of Israel apply to extra-territorial felonies and misdemeanors committed by someone who was a citizen or resident of Israel at the time of committing the offense or thereafter and, therefore, theoretically, it would have been possible to try the Appellant in Israel, in practice, since the victims of the sexual abuse attributed to the Appellant are all citizens and residents of the United States, and all of them were minors at the time the offenses were committed, it cannot be assumed that, on a practical level, these complainants could have left their homes and come to Israel for the purpose of giving testimony. In such a situation, without coercing the witnesses and in view of the practical difficulty involved in conducting the trial in Israel and meeting the burden of proof of the Appellant’s guilt beyond a reasonable doubt, the Israeli prosecution, in effect, would not have been able to conduct a criminal trial against the Appellant in Israel. Hence, even if it had been theoretically possible to order that the Appellant be tried in Israel, the Israeli court did not have the effective ability to subject him to the full force of the law.

 

              Third, the Court assumed that there had been an impediment to trying the Appellant in Israel, and to his extradition as well, prior to the Amendment to the Convention in 2007. It stated that this impediment affected the running of the limitation period. In relying on the case law of this Court, Judge Ben-Or ruled that, first, there is no complete legislative arrangement on the issue of limitation in criminal offenses, so this issue is open to adjudicative development. It was also ruled that one of the general basic principles in this matter is that limitation does not work against someone who does not have the power to act. This is particularly true when the person claiming the applicability of the limitation is the one who deliberately created the impediment to taking action. In the circumstances of the matter, there was an impediment, under the Convention, to extraditing the Appellant to the United States, since the offenses of which he was accused in the United States did not constitute “extraditable offenses” under the Convention and, therefore, the limitation period was suspended until the impediment was removed by the Amendment to the Convention. The argument that the Convention of Extradition could have been amended before then cannot be used by a fugitive from justice, according to case law. Hence, the limitation must be counted as of the date of the amendment to the Convention in 2007, and not before that.

 

              Fourth, the lower court also contended with a possible argument whereby an express provision of a law is required to suspend the running of the limitation period in the case of an impediment to taking action. To that end, it invoked Article 94A of the Criminal Procedure Law. This provision states that a court to which an indictment is submitted is entitled to suspend proceedings if it learns that the defendant cannot be brought for continuation of his trial, and if the defendant evaded the law, the period of the suspension, up to the resumption of the proceedings, will not be counted in the limitation period. The lower court explained that, under the circumstances of the matter, the Appellant can be deemed to have evaded American Law, and, by analogy and “conversion of data,” it is possible to apply to the circumstances of this proceeding the rationale of the provision in Article 94A of the Criminal Procedure Law, which enables, with the approval of the attorney general, the resumption of legal proceedings that were suspended in relation to someone who evaded the law, even if the periods of limitation have lapsed under Section 9 of the Criminal Procedure Law. In this way, Article 94A  may also serve as the statutory basis for suspending the running of the limitation in this case.

 

              The court further believed that there is no problem with the fact that Article 94A of the Criminal Procedure Law went into effect only in 1995, more than ten years after the indictment was brought against the Appellant in the United States and ostensibly after the offenses attributed to him in the indictment had expired under Israeli law. According to the lower court, this provision of the law embodies an existing principle and only proclaims its existence. Therefore, the date on which it went into effect in its statutory guise neither adds nor detracts; alternatively, the issuing of the Red Notice by Interpol halted the running of the limitation, in its capacity as an “investigative action,” which constitutes a delaying factor, and, therefore, when Article 94A of the Criminal Procedure Law went into effect, it was possible to apply it to the offenses in question, which had not yet lapsed.

 

              Fifth, the Court rejected the Appellant’s claim that there was no reason to extradite him because of fulfillment of the exception set forth in Article 2B (A) (7) of the Extradition Law which deals with the “forgiveness” of the offenses attributed to him by the requesting country. From a factual standpoint, it was noted that the files connected with the case had been closed “conditionally,” as long as the Appellant could not be seized and in the absence of any benefit in leaving the files open. However, the indictment and the original arrest warrant that was issued as a result had never been canceled; the American authorities had continued to deal with the Appellant’s case and had not abandoned it; and, over the years, operations and contacts had been conducted between the governments of the two countries in his case. It was ruled that these facts were not consistent with the claim of “forgiveness,” because the existence of forgiveness requires the positive exercise of powers by a government authority, whereby said exercise must unequivocally attest to abandoning the objective of trying the accused in a criminal proceeding.

 

              Sixth, the Court rejected the claim that, in this case, the exception to extradition set forth in Article 2B (A) (8) of the Extradition Law, which prevents extraditions that offend “public policy,” was fulfilled. The court noted that, even though an extreme delay in submitting an extradition request may be considered as offending “public policy,” for the purpose of implementing the exception it must be shown that extradition under those circumstances constitutes a clearly unjust act. In this case, where the authority was impeded from acting, and the defendant himself was the one who created the cause of the impediment to his being placed on trial by fleeing from the requesting country, it cannot be said that there was a delay on the part of the authority in a way that gave rise to the “public policy” exception. According to the Court, there may be circumstances in which it would not be right to exercise the full rigor of the law against a defendant for reasons of “public policy” or “abuse of process”, even when the running of the limitation period is tolled because of his deliberate conduct, and even without a delay on the part of the authorities. However, in this case, considering the nature of the offenses ascribed to the Appellant and their gravity, along with the status of the victims of those offenses, all but one of whom still wish to cooperate with the authorities and to bring the force of the law to bear on him, begs the conclusion that the Appellant does not have a defense based on the doctrine of “abuse of process,” and that his extradition does not violate “public policy.”    

 

13.         In light of the above, the lower court declared the Appellant to be extraditable, except for the eighth count of the indictment, for which , it was advised that the United States had rescinded the extradition request because it had lapsed under American law.

 

The parties’ arguments on appeal

 

The Appellant’s arguments

 

14.         The Appellant’s principal arguments focus on the issue of the limitation period for the offenses attributed to him in the indictment that was filed against him in the United States. According to the Appellant, under Articles 9 (A)(2) and 9 (C) of the Criminal Procedure Law, a “double” limitation period has lapsed for these offenses, in the following senses: first, an initial limitation period ended in February 1995, after 10 years had elapsed from the date of the filing of the indictment against him; second, a second limitation period lapsed in March 1998, after 10 years had passed since the date on which the American authorities learned of the amendment to the Israeli Penal Law, from which time an act of sodomy under circumstances of rape could be considered equivalent to rape, since, as a result of the amendment to the law, the treaty could be interpreted to include the indictment offenses with which the Appellant was charged as “extraditable offenses.”

 

15.         With regard to the first limitation period, the only act that should be addressed above and beyond the filing of the indictment in February 1985, is the issuing of the Red Notice by Interpol. In this matter, it is argued that this Notice does not fall into the realm of “investigation pursuant to legislation” or “a proceeding on behalf of the Court,” which toll the running of the limitation period under Article 9 (C) of the Criminal Procedure Law. Since no other action was taken that would serve to toll the running of the limitation period, it lapsed for the offenses in February 1995, after 10 years had passed from the date of the filing of the indictment.

 

              The Appellant further argues, with regard to the first period, that the lower court erred in its belief that there was an impediment to bringing him to trial, which served to toll the running of the limitation period until the date of the Amendment to the Convention. According to his argument, Article 94A of the Criminal Procedure Law, which was discussed in the ruling of the lower court, does not even apply to the first limitation period, because it entered into force following the expiration of that period and, accordingly, is not in any way applicable to this matter.

 

16.         With regard to the second limitation period, the Appellant argues that there was no impediment, under any law, to his extradition following the amendment to the Penal Law, and from the date of the notice issued by Israel to the United States with regard to the amendment, on March 23, 1988. The United States, however, did not act in accordance with that notice and did not file a request for extradition pursuant thereto. According to the Appellant’s argument, Israel believed, at the time, that it was possible to extradite him, and that there was no impediment to doing so. Moreover, the United States, by the very fact of filing the request for extradition in 1985, expressed its position that there was no impediment to extraditing the Appellant, even at that stage. The position of the United States in 1985, and the position of Israel with regard to the elimination of the impediment to extradition in 1988, gave rise to a situation whereby, at the very least, starting in 1988, it was possible to extradite the Appellant to the United States, and there was no longer any impediment to doing so. This is particularly applicable in light of the broad interpretation that has been given in case law to the concept of “extraditable offenses” for the purposes of the extradition conventions. Therefore, between 1988 – the date of the amendment to the Penal Law – and 1998, a second limitation period lapsed, during which nothing was done with regard to the Appellant’s extradition. Only in November 2007, approximately 9 years after the second limitation period lapsed, did the formal extradition proceedings begin. This is an additional time interval which nearly amounts to a third limitation period, during which no action was taken toward extraditing the Appellant.

 

17.         The Appellant argues further that the lower court erred in assuming that it was not possible to try him in Israel. According to his argument, even if some practical difficulties were involved in conducting the trial in Israel, because the witnesses were in the United States, this is not equivalent to an “impediment” to trying him before a court in Israel for extra-territorial offenses, pursuant to Article 15 of the Penal Law. In addition, the difficulties which the lower court had in mind diminished as the years went by and the principal witnesses for the prosecution grew up, and as the means of investigating witnesses from abroad and obtaining their testimony developed. There was, accordingly, no impediment to bringing the Appellant to trial in Israel.

 

18.         Counsel for the Appellant have attacked the approach adopted by the lower court in applying a doctrine of general impediment as an element which tolls the running of the limitation period in criminal cases. They claim, that there is no foundation for this doctrine under law, and that Article 9 of the Criminal Procedure Law, in combination with Article 94A of that Law, are what define, statutorily and conclusively, the situations that toll the running of the limitation period in criminal cases. These provisions constitute an overall legislative arrangement in this matter, and it is not appropriate to apply the doctrine of general impediment to that arrangement and to deduce, on the basis of that doctrine, that the running of the limitation period should be tolled. The application of the doctrine of general impediment to the statute of limitations in criminal cases conflicts with the principle of legality in criminal matters and contradicts the duty of interpreting criminal law in favor of the accused. Even if any doubt arises in this context, it works in favor of the accused.

 

19.         The Appellant further argues that he should not be deemed to have evaded or fled from justice for the purpose of application of Article 94A of the Criminal Procedure Law, and that the same applies with regard to the argument of general impediment. He did not flee the United States and did not hide out in Israel. He merely refrained from returning voluntarily to the United States, and thereby exercised his constitutional right not to be extradited to another country. In addition, Article 94A of the Criminal Procedure Law does not apply to the matter, because the Appellant should not be deemed a person whom it would have been impossible to bring to trial. Furthermore, his trial has not yet begun and this, too, is one of the conditions for the applicability of the provision in question, which is not met in this case.

 

20.         In addition to all that set forth above, the Appellant claims that, both from the standpoint of international law and for reasons of “forgiveness,” “abuse of process” and “public policy” – as these terms are to be understood in Israeli jurisprudence – it would not be fitting and proper to extradite him to the United States. First, from the international standpoint, the passage of time is significant in the context of the right of an accused to a fair criminal proceeding (as set forth, for example, in Article 6 (1) of the European Human Rights Convention). Second, the United States should be considered as having forgiven the Appellant, in practical terms, for his actions, if we may judge by its conduct over many years. In addition, after nearly three decades, there is relevance to the principle of “public policy,” and to the integrated principle of “abuse of process”, which constitute an express statutory exception to extradition, pursuant to Article 2B (A) (8) of the Extradition Law. The right to a rapid conclusion of the proceedings is a material right in criminal law, and the limitation periods, which expired, reflect a public interest in not bringing to trial, combined with the accused’s personal interest in obtaining a fair criminal proceeding and preventing perversion of justice against him.

 

The arguments by the state

 

21.         The state argues that the ruling by the lower court should be adopted.

 

              According to its argument, the basic assumption is that the limitation periods for the acts committed by the Appellant have not lapsed under United States law, and the question is whether they have lapsed under Israeli law. The answer which must be given to this question is in the negative, in light of the following principal arguments: the guiding principle is that “an offender will not benefit,” and a fugitive from justice is not entitled to benefit from the result of his misdeeds; with regard to the statute of limitations in criminal cases, the general principle is that the running of the limitation period is tolled when there is a legal impediment to continuing with criminal proceedings against a person, as may be learned from Articles 9 (C), 9 (D) and 94A of the Criminal Procedure Law; such an impediment, which has tolled the running of the limitation period, applies in this case. Accordingly, the limitation period did not expire prior to the request for extradition filed by the United States government.

 

22.         In greater detail, the state argues as follows: first, the Appellant is subject to the principle that “an offender will not benefit from his offense.” In fleeing to Israel, the Appellant escaped the fear of justice in the United States for nearly three decades; a fugitive from justice is not entitled to benefit from his escape.

 

              Second, Article 94A of the Criminal Procedure Law embodies the principle that a criminal must not benefit from his flight. The Appellant should be considered a fugitive from justice in the United States and, accordingly, he is “one who evades the law,” in the words of the provision in question. The fact that he did not hide within Israel does not negate the fact that he fled the United States law enforcement authorities.

 

              Third, the impossibility of extraditing the Appellant to the United States pursuant to the Convention, prior to its amendment, presented an obstacle to the extradition. Until the amendment of the Convention, there was an absolute impediment to his being brought to trial. That legal impediment was combined with the behavior of the offender himself and, under circumstances of this type, it is not appropriate to enable the Appellant to benefit from the argument of the lapsing of the statute of limitations. Only since 2007, the year in which the Amending Protocol of the Convention went into effect, has it been possible, for the first time, to extradite the Appellant to the United States, and the position that was firmly held by the United States was that, prior to the aforesaid amendment, it was not possible to implement the extradition according to the wording of the Convention up to that time.

 

              Fourth, it is not appropriate to intervene in the attorney general’s discretion not to bring the Appellant to trial in Israel, particularly since conducting such a trial in Israel would have been fraught with difficulties. In any event, the United States preferred to hold the trial within the territorial jurisdiction in which the offenses were committed; it should further be recalled that Israel’s in personam-active jurisdiction with regard to criminal offenders who have an affinity to Israel, and who have committed offenses outside Israel, is residual by nature.

 

              Fifth, the 1988 amendment to the Penal Law did not eliminate the impediment to extradition, because it did not overlap the offenses of sodomy and rape. Accordingly, this amendment did not affect the definition of “extraditable offenses” in the Convention, until the Convention was amended in 2007. This means that it would have been possible to implement the extradition only after the Convention was amended.

 

              Sixth, the running of the limitation period with regard to the offenses attributed to the Appellant was tolled by a number of investigative operations by the United States authorities, under Articles 9 (C) and (D) of the Criminal Procedure Law. These actions include: a first arrest warrant issued against the Appellant in December 1984; the indictment filed against him in February 1985; an additional arrest warrant issued immediately thereafter; and a federal arrest warrant, also issued that month; in addition, the Red Notice was distributed in July 1987; between 1990 and 1994, contacts with Interpol were initiated by the US authorities to clarify their interest in extraditing the Appellant, and the FBI continued its tracking operations to locate him; in January 1995, the New York police resumed its efforts to locate witnesses; in November 1999, a detective from the New York police force was appointed to investigate the case and a number of actions were performed by him; in July 2000, as a result of information that the Appellant had filed an application for a US passport, the International Department notified Interpol that he was still wanted, and various police efforts were made (ascertaining that the arrest warrant was up to date, distributing his photograph, and informing the Border Police that his arrival was expected), to ensure that he would be arrested upon his return.

 

              With regard to the Red Notice, the state argues, in detail, that this is not merely an administrative operation, but rather, a material and essential tool for enforcing the law and locating fugitives, which constitutes an “investigation-promoting” operation, as it can lead taking active measures to locate and arrest a person. According to the approach adopted by the state, the gamut of actions described, and especially the Red Notice and the attempt to locate witnesses, are concrete investigative actions, which tolled the running of the limitation period for the purposes of Article 9 (C) of the Criminal Procedure Law. In light of the fact that, between the performance of the last investigative action and the filing of the request for extradition, the limitation period had not yet lapsed, we see that, on the date of the enactment of Article 94A of the Criminal Procedure Law - March 31, 1995 - the limitation period for the offenses attributed to the Appellant had not yet lapsed under the statute of limitations and, accordingly, that provision applies to him. It is further argued that the United States authorities could not have been expected to take more action than they did, and that the fact that, between 1985 and 2007, they refrained from filing pointless requests for the extradition of the Appellant should not be held against them; nor can the authorities in a foreign state be expected to take measures to adapt their extradition laws and proceedings to the statute of limitations in force in Israel, so that, at the appropriate time, a request for extradition they would address to Israel would comply with the requirements of the local law.

 

              Seventh, the state goes on to argue that the European Human Rights Convention is of no avail to the Appellant, in light of his having evaded the law. Furthermore, Israel and the United States have not signed the Convention, and the right to conduct a trial within a reasonable period of time does not apply to a person who has evaded the law.

 

              Eighth, it is argued that, in this case, the conditions for the exception to extradition, which concerns “forgiveness” on the part of the requesting country, pursuant to Article 2B (A) (7) of the Extradition Law, have not been met. “Forgiveness,” for the purpose of this exception, must be deliberate and express, and requires a formal legal expression. Without that, it does not exist. In this case, shortly after the Amendment to the Convention Protocol, and once the path had been cleared for it to do so, the United States requested the Appellant’s extradition. This indicates that there was no valid “forgiveness” for the purpose of applying the exception. Furthermore, the indictment and the original arrest warrant were not canceled, and the files were closed only “conditionally.”

 

              Finally, in the opinion of the state, the extradition of the Appellant is also not contrary to “public policy,” nor does it give rise to a valid argument of “abuse of process”. The long period of time that elapsed between the perpetration of the offenses and the realization of the extradition does not result from delay but, rather, from a legal impediment, pursuant to the limitations of the Convention of Extradition. The Appellant’s flight was what gave rise to the need for his extradition, and the passage of time leading up to the extradition should be evaluated, inter alia, against the background of the gravity of the offenses attributed to him.

 

Supplementary arguments

 

23.         As part of the oral pleadings that were held before us in the appeal, various questions arose which transcended the arguments by the parties. These included the question of the legal effect, in terms of applicability in time, of the 2007 Amendment to the Convention, which led to a change in the definition of “extraditable offenses” in the Convention, and whether it applies to offenses dating from 1984, which are attributed to the Appellant and which, at the time they were perpetrated, were not considered “extraditable offenses” pursuant to the Convention. This question is related to a broader question, pertaining to the applicability in time – retroactive, active or prospective – of amendments of this type to extradition conventions, with regard to offenses that preceded the amendment in question.

 

24.         Counsels for the Appellant, in this context, analyzed the general principles that apply to the retrospective application of legislation, which may presumably be ruled out insofar as it purports to apply to actions that were already completed prior to its enactment, since it leads to a change in the legal outcome of situations that have already concluded. On the other hand, insofar as the purpose of the legislation is to govern an existing and ongoing situation which has not yet been completed, the application is active and prospective, and this does not create any difficulty. In the present case, it has been argued that applying the Amendment to the Convention to the offenses attributed to the Appellant would mean a retrospective application of the Amendment, given that such application affects the criminality of the act, and not only the procedural process that is related to the Extradition Law. The Amendment to the Convention, which changed the definition of “extraditable offenses,” was imposed upon an extradition process that had completely ended prior to the Amendment and, accordingly, it does not apply to this matter as, otherwise, this would mean that it is applied in a wrongfully retrospective manner.

 

25.         The position of the state is that, at the level of substantive law, the condition of “double criminality” for the offenses was met with regard to the offenses committed by the Appellant, even prior to the Amendment to the Convention, because the Extradition Law, as it stood prior to the Amendment, included, in its broad definition of the meaning of the concept of “extraditable offenses,” the offenses attributed to the Appellant as well. This means that, at the level of primary legislation, the offenses attributed to the Appellant constituted “extraditable offenses” even prior to the Amendment to the Convention. The legal deficiency, in its entirety, resulted from the narrow definition of the “extraditable offenses” in the Convention, and from that alone. In fact, Article 11 of the protocol of the 2007 Amendment to the Convention expressly states that it is to apply to offenses that were committed both before and after it went into effect. This retrospective application of the Amendment to offenses that were committed prior its going into effect is consistent with Israeli and international law with regard to extradition conventions. In fact, extradition conventions also apply to offenses that were committed prior to their enactment. The provisions of extradition conventions are procedural, rather than substantive by nature, and, accordingly, there is no impediment to applying them retrospectively. The Court must examine whether an extradition convention exists and what its provisions are at the time of the hearing of the request for extradition, in contrast to the question of whether such a convention existed at the time the offenses were committed and what the content of its provisions was at the time. The definition of the types of “extraditable offenses” is included within the procedural provisions governing the ways of realizing the offender’s legal affinity to the requesting country. The extradition process answers the procedural question of how to clarify the criminal liability of an accused for perpetrating the offenses attributed to him in the requesting country. Accordingly, there is nothing wrong with applying the 2007 Amendment to the Convention to the Appellant’s case, even though the offenses attributed to him were committed prior to the Amendment, and even though, at the time they were committed, they were not classified as “extraditable offenses” pursuant to the Convention between Israel and the United States.

 

Motion to permit the filing of a position on behalf of the victims of the offenses

 

26.         A short time after the hearing of the appeal, an organization called “Survivors for Justice”, the members of which are survivors of sexual assault in the Orthodox Jewish communities of the United States, and two of its founders, who are among the Appellant’s victims (hereinafter: the Applicants), filed a motion to permit them to present the position of the victims of the offenses regarding the harm they would sustain if the appeal were allowed. The motion states that, although the possibility of presenting such a position is not found in the ordinary codes of procedure, hearing the position of  the victims of an offense, as part of the judiciary proceeding, is not foreign to the codes of procedure in Israel, especially following the enactment of Basic Law: Human Dignity and Liberty and the Rights of Victims of an Offense Law, 5761-2001 (hereinafter: the Rights of Victims of an Offense Law); it is also possible by virtue of the inherent authority of the Court; and it cannot violate the rights of the Appellant or the good order of the proceeding, because the balance between the rights of the victims of the offense and the rights of the accused is, in any event, part of the  of considerations that the Court must examine in the extradition process.

 

27.         The state and the Appellant are both opposed to this motion.

 

              The state argues that the status of the victims of an offense in extradition proceedings requires separate study and discussion, and that, at this time, this matter is not directly governed by law. This proceeding and all its circumstances is not the proper place to discuss this issue, especially since the victims’ position, in the context of the offenses that are the object of the extradition request, was discussed extensively in the state’s arguments. Furthermore, both of the pleaders with whom the motion originated are not among the victims of the offenses according to the indictment filed against the Appellant. Accordingly, they do not fall under the definition of “victims of an offense” in this proceeding.

 

              The Appellant also argues that the Applicants do not fall under the definition of “victims of an offense” under the Rights of Victims of an Offense Law. Furthermore, presenting the position of victims of an offense in extradition proceedings is not even possible. According to his argument, even if the Applicants had a recognized status in extradition proceedings under law, their position, as is customary under the Rights of Victims of an Offense Law, is presented through the office of the state attorney, and not directly in pleadings before the Court. Therefore, even though, as a general rule, the position of victims of an offense should be heard, it is not appropriate for it to be heard in this proceeding.

 

28.         The motion should be denied. The status of victims of an offense in extradition proceedings has not been expressly anchored in law and requires separate discussion and clarification. In addition, the Applicants in this case prima facie do not meet the definition of “victims of an offense,” as this term is used in the Rights of Victims of an Offense Law. In any event, the state, in its extensive argumentation, commented on the harm which was done to the victims of the offenses attributed to the Appellant, pursuant to the indictment which was filed against him. In light of the above, allowing the motion will make no substantive contribution to clarifying the various aspects that arise in this proceeding. Hence, in the context before us, it is also not appropriate to rule on the fundamental aspects of the status of victims of an offense in extradition proceedings.

 

Discussion and decision

 

General background

 

29.         An indictment was filed against a person in a certain country in 1985, for grave crimes committed in that country. The person fled to Israel, which has an extradition treaty with the country in question. The extradition proceedings were not executed for 22 years, due to the wording of the convention of extradition between the two countries, which did not contain, within its definition of “extraditable offenses,” the offenses specified in the indictment against the person wanted for extradition. The extradition proceedings did not take shape until 2007, the year in which the convention was amended, leading to a change in the definition of “extraditable offenses,” to include the offenses in the indictment against the person in question. Is it possible, under those circumstances, to extradite the accused to the country requesting the extradition, after 22 years have elapsed from the date on which the indictment was filed, when, throughout all that time, he was within the reach of Israel’s law-enforcement authorities for the purpose of his extradition? Can an extradition proceeding, under these circumstances, have the strength to withstand the exception to extradition set forth in the Extradition Law, under which a person may not be extradited to the requesting country for an offense that has expired under the statute of limitations stipulated in the laws of the State of Israel? Does such a proceeding have the strength to withstand the exception to extradition, as set forth in the Law, regarding the harm to “public policy,” which encompasses, inter alia, the principle of “abuse of process” and the accused’s right to due process, in view of the large amount of time that has elapsed since the offenses were committed and the indictment filed, and up to the opening of the extradition proceedings? Meanwhile, the question arises as to whether the Amendment to the Convention, by way of changing the definition of “extraditable offenses,” constitutes an improper retrospective application, insofar as it is applied to offenses that were committed prior to the change, or whether this is an active application of a contractual arrangement between countries, which is lawfully exercised with regard to offenses that were committed prior to the Amendment to the Convention. These, in essence, are the issues to be decided in the present proceeding.

 

30.         The answer to the above questions is largely affected by an overview of the status and location of the extradition laws in Israel within the overall normative fabric of the Israeli legal system and constitutional law in particular. The harmonious integration of extradition laws within the framework of the basic constitutional principles that establish the basic rights of mankind to freedom, including freedom from extradition, and the close relationship between the extradition proceedings and criminal law in Israel – both substantive and procedural – have a direct impact on the proper response to the questions before us. In addition to all this, in the interpretation and application of the extradition laws, considerable weight is also given to Israel’s obligations vis-à-vis the Convention member states to assist and cooperate in bringing offenders to justice within their territory, as part of its duties as a member of the international community.

 

On the status of the extradition laws, their purposes and their normative characterization

 

31.       The conceptual basis of Israel’s extradition law is founded on three levels. The first level embodies mankind’s constitutional right not to be extradited, which is anchored in the Basic Law: Human Dignity and Liberty. Article 5 of the Basic Law states that: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.” With these words, the Basic Law declares the constitutional status of mankind’s right not to be extradited to another country for the purpose of conducting his criminal trial – a status that requires all government authorities to honor that right (Article 11 of the Basic Law). The Basic Law also states that the restriction of the right to liberty is possible, but subject to the terms and conditions set forth in the limitations clause (Article 8 of the Basic Law). The second level consists of the Extradition Law and the Extradition Regulations (Procedures and Rules of Evidence in Petitions), 5731-1970, which were enacted thereunder. These pieces of legislation jointly create a detailed operational mechanism for the extradition of a person in Israel to another country, which seeks to bring him before a criminal court in its territory. Article 1 of the Extradition Law states that: “A person located in Israel may only be extradited to another country pursuant to this Law,” and other provisions of the Law set forth the preliminary conditions for extradition and the various exceptions to extradition that preclude the extradition of a person to the requesting country. The third level is that of the international conventions that Israel has signed with other countries, which govern the specific extradition relations between the State of Israel and the various countries on the international level. The conventions are given legal status in Israel by virtue of the Extradition Law, Article 2A (A) (1) of which states that a necessary condition for the extradition of a person is that “between the State of Israel and the requesting country, there is an agreement regarding the extradition of offenders” – an agreement that may be bilateral or multilateral, and which may be general, with regard to the extradition of wanted persons in general, or individual, with regard to the extradition of a specific wanted person. In this way, the Extradition Law grants “approval, under domestic law, to the convention of extradition, and makes it – in the words of the Law – a component of Israeli law” (Criminal Appeal 6914/04, Feinberg v. Attorney General, IsrSC 59 (6) 49, 63 (2005), hereinafter: the Feinberg Case). The conventions express the shared desire of the signatory countries for the existence of an operative legal infrastructure, which enables reciprocal cooperation among them in the extradition of offenders (Criminal Appeal 7303/02, Hekesh v. State of Israel, IsrSC 57 (6) 481, 495 (2003), hereinafter: the Hekesh Case). Upon signing, the conventions become an integral part of Israeli law; they are “conditional to the existence of extradition relations, and are what casts extradition law's substantial content.” (Criminal Appeal 4596/05, Rosenstein v. State of Israel, paragraph 15 of the ruling rendered by Justice Levy (unpublished, November 30, 2005), hereinafter: the Rosenstein Case; a petition for an additional hearing was denied: Further Criminal Hearing 11414/05, Rosenstein v. Attorney General (unpublished, January 31, 2006)).

 

32.         In long-term comprehensive case law, this Court has pointed out the various purposes underlying the extradition laws and the great importance inherent in them. The principal purpose of these laws is to give the international community the legal means to contend with the spread of crime throughout the various countries, by way of reciprocal cooperation and assistance to the authorities (Criminal Appeal 6182/98, Sheinbein v. Attorney General, IsrSC 53 (1) 625, 639 (1999), hereinafter: the Sheinbein Case). Associated with this general purpose are additional purposes, primarily that of preventing offenders from evading the law and preventing the transformation of the State of Israel into a shelter for offenders, with the risk that this entails for the well-being and safety of the public in Israel, and in light of the damage to Israel’s image in the eyes of other countries, and even in its own eyes (Hekesh Case, at 498). Another purpose involves promoting the principle that a person should be tried according to the most natural legal system under the circumstances of the case, which is indicated by the majority of contacts linking it to the accused and the offenses attributed to him (Rosenstein Case, paragraphs 39-42; Criminal Appeal 250/08, Anonymous v. Attorney General, paragraph 34 (unpublished, March 12, 2009), hereinafter: the Anonymous Case).

 

33.         The general importance entailed in accomplishing all of these purposes becomes even greater in light of the sophistication, organization and complexity that characterize international crime, which has continued to develop over the last few generations. With the development of international access routes and communications, crime tends to cross spatial and national borders and to expand throughout the length and breadth of various countries. International crime, which is becoming more and more frequent, is reflected, inter alia, in the offenses of global terrorism, human trafficking, money laundering, trafficking in dangerous drugs, and computer and Internet offenses. These phenomena are increasing in intensity with the development of communications media, accessibility and the opening of borders between countries and areas throughout the world (Rosenstein Case, paragraph 30; Hekesh Case, at 495-496). Under these circumstances, cooperation between legal institutions in the various countries is even more essential in the war on international crime. The extradition laws are one of the means that have acquired unparalleled importance in the war on crime (Rosenstein Case, id.).

 

34.         From the standpoint of domestic law, the extradition proceedings, according to their classification, are considered to be an integral part of the criminal proceeding required to bring a person to justice for his actions. The unique aspect of extradition proceedings is the need to transfer an accused from the territory of the requested country to the territory of the requesting country, for the purpose of bringing him to trial for offenses that have a direct link to the latter country (S.Z. Feller, The Extradition Laws 68 (1980), hereinafter: Feller, Extradition  Laws). To wit:

 

“A criminal proceeding is any proceeding that is implemented as part of the process of ensuring that the accused is punished for his offense, and extradition is nothing more than a proceeding of this type; the only thing that makes it unique is that the accused is handed over to justice in another country” (S.Z. Feller, “On the Retroactivity of the Extradition Laws and the Impact of Pardon Thereon” [Hebrew], Mishpatim 4 403, 412 (1973), hereinafter: Feller, On Retroactivity).

 

Extradition is, accordingly, a component in the process of criminal law enforcement, and it is intended, for the establishment of international cooperation, to enable the requesting country to mete out justice to an offender who committed offenses within its territory and to prevent the frustration of criminal law by offenders who flee to the territory of other states. At the same time, it is important to emphasize that the international component that is inherent to the extradition proceeding does not derogate from its nature as a criminal proceeding, which is “a proceeding for the enforcement of the laws of the State of Israel” (HCJ 3992/04, Maimon-Cohen v. Mr. Sylvan Shalom, Minister of Foreign Affairs, IsrSC 59 (1) 49, 57 (2004), hereinafter: the Maimon-Cohen Case). This statement is amply clarified by Prof. Feller in his book:

 

“What makes extradition unique, relative to other criminal proceedings, is... that it is an international proceeding; aside from that, however, there is no difference between it and the other measures that are required, in each individual case, as applicable and necessary, in order to try a person for a criminal offense or to enforce the sentence that was passed upon him for that offense” (Feller, Extradition Laws, at 25 and at 71).

 

              In any event, the basic principles of the Israeli legal system, including the protection of the rights of accused persons, on which criminal proceedings are founded, apply to the same extent to extradition proceedings as well.

 

35.         Within the distinction between substantive criminal norms, which establish the framework of criminal liability for an accused, and procedural criminal norms, which have to do with the nature of the criminal proceeding that is designed to enforce the substantive criminal norms, it is customary to classify extradition in the second category. The rules of criminal proceedings establish the patterns for bringing an accused to justice; within those patterns, criminal liability is examined and substantive criminal law is enforced. The extradition laws are part of procedural criminal proceedings (Sheinbein Case, at 659). They govern various aspects related to bringing an offender to justice in the requesting country; the various exceptions to extradition are imposed as part of the requirement for criminal proceedings to ensure fair legal proceedings for the accused (Feller, Extradition Laws, at 67). The extradition laws do not settle the question of a person’s criminal liability; rather, they ensure that a proper criminal proceeding will take place, so that it will be possible, within that proceeding, to ascertain the criminal liability, while assisting the international community in its war on crime (Criminal Appeal 3025/00, Harosh v. State of Israel, IsrSC 54 (5) 111, 121 (2000), hereinafter: the Harosh Case; cf. Criminal Appeal 7569/00, Yagodyev v. State of Israel, IsrSC 56 (4) 529, 551-554 (2002), hereinafter: the Yagodyev Case; Rosenstein Case, paragraph 43).

 

The link between the extradition laws and constitutional law in Israel

 

36.         The right to liberty was recognized as a basic right with a special constitutional status upon the enactment of Basic Law: Human Dignity and Liberty (HCJ 5319/97, Kogan v. Judge Advocate-General, IsrSC 51 (5) 67, 81-82 (1997); Criminal Appeal 4424/98, Silgado v. State of Israel, IsrSC 56 (5) 529 (2002), hereinafter: the Silgado Case; Criminal Appeal 111/99, Schwartz v. State of Israel, IsrSC 54 (2) 241, 272-273 (2000) hereinafter: the Schwartz Case; and, recently, see: HCJ 2605/05, Academic Center of Law and Business v. Minister of Finance, paragraph 20 of the ruling handed down by Supreme Court President Beinisch (unpublished, November 19, 2009)). The prohibition against violation or limitation of liberty, beyond that permitted by the limitations clause, also applies, as set forth above, with regard to extradition proceedings (Articles 5 and 8 of the Basic Law).

 

37.         The right to liberty in the context of extradition proceedings has two principal characteristics. One of these is the right to personal liberty, in the narrow sense of freedom from arrest or imprisonment (Silgado Case, Supreme Court President Barak, at 549). The other is the right to liberty in the broad sense, which extends to a person’s freedom of choice, which entitles him to select the environment in which he will live and the social, cultural and legal norms that will apply to him. Liberty, including both aspects, is violated when a person is extradited to another country and subjected to the legal system prevailing in that country (Rosenstein Case, paragraph 37). Criminal law was definitively influenced by the revolution that took place in the perception of human rights in Israel. This revolution affected the substantive level of criminal law and its pivotal principles, including the principle of legality in criminal matters and the means of punishment; no less importantly, it affected criminal proceedings, the principles of which are closely linked to the protection of individual liberty (Miscellaneous Criminal Motions 537/95, Ghanimat v. State of Israel, IsrSC 49 (3) 355, 421 (1995) (Supreme Court President Barak)). The recognition of the right to personal liberty as a constitutional right has a decisive effect on the interpretation and implementation of the rules of criminal proceedings, with all of the ramifications thereof, including the laws of extradition (Schwartz Case, at 273).

 

38.         Recognition of the constitutional right to individual freedom from extradition has a direct impact on the manner of applying the laws of extradition and the laws that are ancillary to the extradition proceedings:

 

“In fact, when we are faced with a norm from the area of extradition law, we must interpret it according to its purpose, as that emerges from the gamut of necessary considerations in the matter. In so doing, we must give consideration to realization of the important public interest embodied in these laws, but also to the fact that freedom from extradition is a basic right which was determined by the  Basic Law: Human Dignity and Liberty...” (Sheinbein Case, at 658, 660 (emphasis not in the original); Ghanimat Case, at 412-422).

 

39.         Alongside the constitutional right to individual freedom from extradition is the purpose of the extradition laws, which are founded on Israel’s duty to lend a hand in the war on international and transnational crime, and to comply with the duty of reciprocity in extraditing offenders to the countries in whose territory the offenses were committed.

 

40.         Accordingly, in addition to the important public interest which the laws of extradition are intended to serve – the exercise of active measures toward international cooperation in the area of law enforcement – there is the basic constitutional right of the individual, which is recognized in constitutional law in Israel, to freedom from extradition (Sheinbein Case, at 659-660). Violation of that right, inter alia through extradition proceedings, is only permitted insofar as it complies with the test set forth in the limitation clause of the Basic Law – that is: it must be carried out within the Law or pursuant thereto; it must be appropriate to the values of the country; it must be implemented for a proper purpose; and it must not be in excess of that required (Hekesh Case, at 495; Anonymous Case, paragraph 16).

 

The affinity between the laws of extradition and the overall normative fabric of the law

 

41.         In addition to the necessary link between the laws of extradition and constitutional law, it is also necessary to ensure a harmonious integration of the laws of extradition with the overall normative system of the laws of the State of Israel, including criminal law. The Extradition Law is not “a law that dwells alone”; rather, it lives in its natural environment and constitutes an integral part of the basic values and concepts that underlie the entire legal system:

 

“Indeed, presumably the purpose of any piece of legislation is to maintain and promote harmony in the law... The entire system strives to achieve normative harmony” (Aharon Barak, Interpretation in Law – The Interpretation of Legislation (Volume II) 589-591 (1993), hereinafter: Barak).

 

Like any piece of legislation, the laws of extradition must also be interpreted and applied with a view to the realization of the basic social concepts and values underlying the legal system. Accordingly, the interpretation of the laws of extradition must be reconciled with the spirit and the basic principles that are common to Israeli society, and which constitute the background for the entire normative method. Accordingly, it has been said that:

 

“The general purpose of any piece of legislation is composed of the set of values of the State of Israel. This accounts for the relative nature of the basic principles and the need to create a balance among them, and between them and the specific purpose of any piece of legislation. The Extradition Law must also be interpreted within this framework. The Extradition Law is not a legislative unit that is disconnected from the set of laws and values of the state. Like any law, the Extradition Law is ‘a creature that lives in its environment’... It must be interpreted against the background of the values and principles of the legal system in Israel... What is necessary is a balancing and weighing operation, pursuant to which the final purpose and exercise of the Extradition Law in the concrete case will be determined” (HCJ 3261/93, Manning v. Minister of Justice, IsrSC 47 (3) 282, 286 (1993)).

 

42.         In addition to the aim of achieving harmony between the extradition laws and agreements and the entire internal legal system, we must strive to apply the laws of extradition in a way that takes into consideration the international undertakings that Israel has assumed at the level of international law. “A rule of interpretation is that it is necessary and proper to act to bridge the gap between law and convention, so that the two may live in peace without contradicting each other” (Civil Appeal 1137/93, Eshkar v. Heims, IsrSC 48 (3) 641, 659 (1994), hereinafter: the Eshkar Case; Barak, at 474-477). However, when the two normative systems – domestic and international – cannot be fully reconciled with each other in the area of extradition, preference must be given to the national norm over the international norm. The national norm is the State’s source of strength, and its powers and values are derived from it. Its international obligation also results from the national, domestic norm. When the international obligation cannot be reconciled with domestic law and the basic values of the domestic system, the domestic norm will prevail in the conflict between the two systems. Prof. Feller commented on this in his book:

 

“It is preferable for the two normative systems to be appropriate to each other, so that, when the second system (the system of norms at the international level – A.P.) is exercised, the obligations and rights of the first (the system of norms at the national level – A.P.) will be fully accomplished. If they are not appropriate in their entirety, the second system will prevail, because the extradition relationship is realized only through the authorities of the states, and they are only subject to the system of norms that are binding upon them, even if the exercise of those norms may give rise to a conflict with undertakings on the level of international relations. ... The origin of the norm with regard to extradition is always national law, even when it draws its content from international law or even from foreign law, because even this drawing itself occurs by virtue of national law. If national law does not enable international law to be fully drawn on it, then, as set forth above, the state authorities must obey the national law, even if this alienates them from an international undertaking” (Feller, Extradition  Laws, at 57; emphasis not in the original).

 

43.         Against the background of these “basic guidelines,” which define the place and the status of the laws of extradition within the overall normative framework of the law of the country, and against the background of the place and the importance of international extradition treaties to which Israel is a party, and which are intended to integrate Israel into the community of nations of the world in their joint war on crime, we will now go on to analyze the issues that require a response in this proceeding.

 

The issues for decision

 

44.         Before us are four principal issues that require a decision:

 

              (1)      What is the effect of the 2007 Amendment to the Convention of Extradition, from the standpoint of its applicability in time, to offenses that were committed prior to its effectiveness, and that were not included under “extraditable offenses” in the Convention before that time? What is the impact of this on the Appellant in this case?

 

              (2)      Should the conduct of the authorities in the United States over the years be viewed as “forgiveness” of the offenses which were committed by the Appellant, in a manner that constitutes an exception to extradition pursuant to the Extradition Law?

 

              (3)      Is the Appellant’s case subject to the statute of limitations under the laws of Israel, which constitutes an exception to extradition pursuant to the Extradition Law, and does a circumstance which tolls the running of the limitation period apply with regard to him?

 

              (4)      Does the extradition of the Appellant, after 22 years have elapsed between the filing date of the indictment against him and the commencement of the extradition proceedings, constitute a violation of “public policy,” which is tantamount to a qualification to extradition pursuant to the Extradition Law?

 

              We shall examine each of these questions separately.

 

The Amendment to the Convention, in terms of  applicability in time, and its impact on the Appellant’s case

 

45.         The indictment was filed against the Appellant in the United States in 1985, and attributes to the Appellant the perpetration of offenses in the years 1980-1984. At the time when the acts were committed, and at the time when the indictment was filed, the offenses in the indictment were considered to be “extraditable offenses” pursuant to Israel’s Extradition Law. However, they were not included under “extraditable offenses” pursuant to the Convention of Extradition between Israel and the United States. Only in 2007 did the Amendment to the Convention become effective, which expanded the definition of “extraditable offenses” to include the offenses that are the object of the indictment in this case. Prior to the Amendment to the Convention, it was not possible to extradite the Appellant from Israel to the United States, because the condition that requires the offenses, which are the object of the extradition, to be “extraditable offenses” under the extradition agreement between the two countries, was not met.

 

              What is the legal effect of the Amendment to the Convention, in terms of its applicability in time, which transformed the offenses attributed to the Appellant into “extraditable offenses” pursuant to the Convention, approximately 23 years after the date on which the acts were perpetrated?

 

46.         The presumption that excludes retrospective legislation is axiomatic in our legal system, as has already been stated: “A major rule in the interpretation of laws is that the provisions of the law are presumed to be directed toward the future and not retroactive, unless a retroactive provision is expressly or clearly implied by the law” (Civil Appeal 27/64, Bader v. Israel Bar Association, IsrSC 18 (1) 295, 300 [1964]; the Harosh Case, at 119; on the presumption and the reasons therefor, see: Barak, at 617-621). The presumption that excludes the retrospective application of a piece of legislation may, therefore, be refuted, insofar as the language and purpose of the law can indicate the retrospective application of the provisions thereof.

 

47.         In the area of penal law, the principle that excludes the retrospective application of a piece of legislation is reconcilable with the principle of legality anchored in Article 1 of the Penal Law, which specifies:

 

“No penalty other than according to law

No offense, and no penalty for an offense, shall exist other than as specified within the Law or pursuant thereto.”

 

              The principle of legality in criminal matters is reconcilable with the rule which holds that no retroactive penalties may be applied. Article 3 of the Penal Law states as follows:

 

“No retroactive penalty

3. (A) Legislation that gives rise to an offense shall not apply to an act that was performed prior to the date of publication of such legislation as a law, or the date it went into effect, whichever is later.

(B) Legislation that establishes a penalty for an offense that is more severe than the penalty established for said offense at the time it was committed shall not apply to an act that was performed prior to the date of publication of such legislation as a law, or the date it went into effect, whichever is later; however, the updating of the amount of a fine shall not be deemed to constitute the exacerbation of a penalty.”

 

48.         How do these general principles affect the question of the applicability in time of the Amendment to the Convention, which led to a change in the definition of “extraditable offenses” pursuant to the Convention, and does it apply to offenses that were perpetrated many years before the Amendment was drawn up and which, at the time they were perpetrated, were not deemed “extraditable offenses” as set forth above?

 

              The answer to this question is a double one:

 

              First, the application of a subsequent amendment to a convention, with regard to offenses that were perpetrated before the amendment was drawn up, does not violate the principle of legality in criminal matters, because that principle, like the principle which dictates “No retroactive penalty,” concerns the substantive norms of criminal law and refers to the aspect of liability in criminal cases, in contrast to proceedings for implementing and enforcing criminal law.

 

              The laws of extradition, including conventions of extradition, constitute part of the set of laws pertaining to criminal proceedings, which establish the rules for bringing an accused to justice in criminal court. They do not pertain to questions of criminal liability. For this reason, the applicability in time of an amendment to a convention, which changes the definition of the concept of “extraditable offenses,” to offenses that were committed a long time before the amendment was made, does not conflict with the principle of legality, or to the prohibition against retroactive penalties in criminal cases. Had the laws of extradition affected the criminality of the act, pursuant to the substantive law of the requesting country or the requested country, the application of the amendment to offenses perpetrated in the past might well have violated the principles of legality and of no retroactive penalty. This, however, is not the case with regard to the laws of extradition, which have nothing to do with the level of criminal liability; rather, they concern the procedural process of enforcing criminal law. As a general rule, a pending procedural process that has not yet been completed does not give rise to vested rights or defensible expectations with regard to future changes in the law.

 

              Secondly: the opinion that the laws of extradition may have retrospective application and apply to actions and situations that occurred before they went into effect, has been firmly established for years. In this way, conventions of extradition may apply to accused persons and to offenses that were committed a long time before the conventions were signed (Yagodyev Case, at 555). The ruling in the Hackstetter Case reads as follows:

 

“A well-known rule of international law was that, in the absence of any express provision to the contrary, conventions of extradition are applied retroactively, even with regard to offenses that were committed before they went into effect... We have found various justifications for this in various rulings and books: there are those who say that the duty of extradition is a duty that is incumbent upon the states by virtue of international law, and the conventions are simply intended to determine the ways to perform and uphold that duty; in any event, there is no importance to either the date on which the conventions were signed or the date on which the offenses were committed. There are those who say that, by their very nature, conventions of extradition cannot violate individual rights, because conventions are between states, and their subject matter is nothing more than the reciprocal rights and duties of those states. There are those who say that the prohibition against the retroactive application of the penal laws does not apply to anything other than the legislation of laws that create offenses and impose or increase penalties, and that conventions of extradition, by nature, do not create offenses and do not impose or increase penalties. And some say, that provisions of conventions of extradition are, by their nature,, procedural and not substantive provisions, and a major rule holds that procedural provisions, which have to do with nothing but procedure, apply retroactively even in criminal cases” (Criminal Appeal 557/71, Hackstetter v. State of Israel, IsrSC 26 (1) 241, 244-245 (1972), hereinafter: the Hackstetter Case).

 

              These reasons have been supplemented by the following: “Refraining from a retroactive application of a convention of extradition may damage the core of the extradition laws; on the other hand, applying a convention retroactively cannot in any way harm the legitimate expectations of the states, or of the individual whom they are seeking to bring to justice” (Yagodyev Case, Justice Heshin, at 556). According to this approach, it was ruled that the Extradition Law and the conventions of extradition apply even to offenses that were committed before the Law was enacted and before the conventions were signed. According to this approach and, a fortiori, an amendment to a convention, which changes the definition of an “extraditable offense” in the convention, also applies, from the standpoint of time, to offenses that were perpetrated before the amendment went into force.

 

49.         A different approach to examining the applicability in time of amendments to the Extradition Law and to conventions of extradition, with regard to offenses that were perpetrated prior to said amendments, applies the general presumption against retrospective application of the law to the matter, unless they include a clear and unequivocal provision with regard to the applicability. According to that approach, the presumption excluding retrospective application of the law is a general principle of interpretation, which applies not only to questions of criminal liability, but also to matters of a procedural nature, when the processes in question have already come to an end. As long as the procedural process has not begun, or is pending and has not come to an end, the application of the new law from the standpoint of time is active and not retrospective. Accordingly, in this reality, the existing presumption regarding the exclusion of retrospective application does not apply. Applying the Amendment to the Convention to procedural situations that have not yet come to an end is not retrospective application; rather, it is active application and is not subject to the presumption that negates the application of an amendment to a law or to a convention with regard to offenses committed before the time of the amendment. On the other hand, applying the amendment to situations that ended before it took effect is, by its nature, retrospective, and – like any other law – requires the existence of an express provision specifying the retroactive application of the amendment, as a precondition for its application in that way. In fact, “the applicability of the Extradition Law, or of the conventions of extradition, is immediate and, therefore, immediately upon taking effect, they enable the initiation of proceedings pursuant thereto, even with regard to offenses that were committed previously, and this does not mean that their applicability is ‘retroactive’” (Feller, On Retroactivity, at 410; Harosh Case, at 119-120). This matter was clarified in the Harosh Case (Supreme Court President Barak):

 

“In order to succeed in the argument that the new law is retrospective with regard to extradition proceedings – rather than with regard to criminal liability itself – Harosh would have had to indicate that the extradition proceedings before the courts had concluded under the previous law, and that the new law now enabled them to be reopened. He cannot do this, because no extradition proceedings whatsoever were opened before the courts – and, in any event, such proceedings certainly did not come to an end – regarding to Harosh. What we have here is an extradition proceeding that was opened after enactment of the new law. Accordingly, the application of this new law to the extradition of Harosh will not be a retroactive application, but rather, an active one” (id., at 119; emphases not in the original; see also: Yehuda Blum, “On the Question of the Retroactive Application of Extradition Agreements” [Hebrew], Hapraklit 22 316, 317 (1966); and his article on the subject: “Retroactivity of the U.S.-Israel Extradition Treaty,” Isr. L. Rev. Vol. 1 356-357 (1966); M. Cherif Bassiouni, International Extradition – United States Law and Practice (5th edition, 2007) 141, hereinafter: Bassiouni; see also: In the Matter of the Extradition of Ernst (S.D.N.Y. 1998) U.S. Dist. Lexis 710).

 

From the general to the specific

 

50.         The object of the Amendment to the Convention on Extradition between the United States and Israel referred to the reclassification of “extraditable offenses.” This Amendment was also in line with the provision of the Extradition Law which, as a precondition for extradition, required the accused to have been charged or convicted, in the requesting country, of an “extraditable offense” (Article 2A (A) (2) of the Extradition Law).

 

              An “extraditable offense,” for the purpose of the matter at hand, is primarily defined in the Extradition Law itself, which specifies, from the standpoint of domestic law, the offenses that enable extradition under the Israeli legal system. This, however, is not sufficient. Within this framework, it is necessary to attribute concrete significance to the classification of offenses as “extraditable offenses” in the specific convention of extradition between Israel and the other country that signed the convention. As long as an offense has not been defined as an “extraditable offense” in the convention, no extradition can be carried out for said offense, even if it is defined as an “extraditable offense” in the Extradition Law. This means that, in order for an “extraditable offense” to exist, two cumulative criteria are required: the definition of the offense as an “extraditable offense” pursuant to Israel’s Extradition Law; and its definition as an “extraditable offense” pursuant to the relevant convention. In this way, the Extradition Law determines the broad “outer circle” for the definition of “extraditable offenses,” and the conventions may narrow that circle by specifying, in the “inner circle,” which offenses will be classified as “extraditable offenses” for the purposes of the convention.

 

51.         The Extradition Law was amended in 2001 and established, in Article 2 (A), a broad definition of an “extraditable offense,” as “any offense which, had it been committed in Israel, would be punishable by one year’s imprisonment or a more severe sentence.” This amendment replaced the previous definition that specified certain types of offenses for the purpose of the definition in question. Pursuant to the definitions in the Extradition Law, both originally and following the amendment, the offenses attributed to the Appellant constituted “extraditable offenses.” Nonetheless, until the Amendment to the Convention in 2007, the offenses in the indictment against the Appellant did not comply with the definition of “extraditable offenses” pursuant to the Convention. The definition in the “outer circle” complied with the condition, but the definition in the “inner circle,” within the confines of the Convention, did not. The 2001 amendment of the Extradition Law did not affect the definition in the Convention, and it was not possible, by way of interpretation, to deduce that, from that time forth and thereafter, the offenses in the indictment also constituted “extraditable offenses” under the Convention. Only in 2007, as a result of the Amendment to the Convention, was a correlation created between the definition of an “extraditable offense” in the Extradition Law and the definition of an “extraditable offense” in the Convention, and only from that stage onward did the initiation of the extradition proceeding become possible.

 

52.         The 2007 Amendment to the Convention, which reclassified the “extraditable offenses,” directly concerns the process of enforcement of the criminal norm with regard to the wanted person, but has no impact on the actual criminal liability attributed to him. Therefore, the effects of the Amendment, from the standpoint of its applicability in time, do not clash with the interpretive presumption that excludes retroactive penal legislation and prohibits violation of the principle of legality in criminal matters. The Amendment to the Convention, in this case, applies actively to an extradition proceeding which, in actual fact, was only initiated as a result of the Amendment, and which waited for the Amendment for many years.

 

53.         It is true that the request for extradition, which was filed in 2007, was not the first measure taken by the United States government, in an attempt to bring about the extradition of the Appellant to its territory. Nonetheless, the first proceeding initiated by the United States in 1985 was a preliminary procedure to extradition, which did not mature into a formal extradition proceeding due to the non-fulfillment of the condition regarding classification of the offenses in the indictment, with which the Appellant was charged, as “extraditable offenses” at the time. Only as a result of the Amendment to the Convention, in 2007, was an extradition proceeding initiated. In this state of affairs, the Amendment to the Convention applies actively, from the standpoint of time, and does not present any difficulty regarding a possible violation of the rights of the accused in this specific context.

 

54.         For the aforementioned reasons, there is nothing wrong with the extradition proceedings, with regard to the Amendment’s applicability in time to the offenses in the indictment which are attributed to the Appellant.

 

An exception to extradition: the “forgiveness” of the requesting country – is that condition fulfilled in this case?

 

55.         Article 2B (A) (7) of the Extradition Law specifies the following:

 

Exceptions to extradition

2B. (A) A wanted person shall not be extradited to the requesting country in any of the following cases:

...

(7) If the request for extradition was filed as a result of an offense for which the wanted person was pardoned or forgiven in the requesting country.

 

              Is the exception to extradition, with respect to “forgiveness,” fulfilled in this case?

 

56.         The obvious answer to this question is in the negative. In order for the exception of “forgiveness” to be fulfilled, the requesting country must clearly and unequivocally make a statement to the effect that it has waived the option of bringing the wanted person to trial, and that it is no longer waiting for an appropriate time to do so. Admittedly, “forgiveness” does not have to be expressed in terms of a declared, overt and explicit act; it may also be learned from the behavior of the requesting country, such as the cancellation of an indictment, the cancellation of arrest warrants, the closure of files, and the avoidance of any action with regard to the investigation and the indictment for many years. The very fact of the filing of an extradition request does not necessarily constitute an indication of the absence of “forgiveness” which, as set forth above, may be learned from the behavior of the requesting country prior to the initiation of the proceeding; otherwise, there would have been no reason to establish the exception of “forgiveness” in the Extradition Law, which is applicable precisely in cases where a request for extradition has been filed. However, in order for the exception of “forgiveness” to exist in the context of extradition laws, the requesting country is required to exhibit clear and unequivocal behavior, which is not subject to any doubt whatsoever (Criminal Appeal 3439/04, Bazaq (Bouzaglo) v. Attorney General, IsrSC 59 (4) 294, 303-304 (2005), hereinafter: the Bazaq Case; Criminal Appeals 739/07, Efrat v. Attorney General, paragraph 11 (unpublished, June 7, 2007), hereinafter: the Efrat Case).

 

57.         In the case before us, the exception of “forgiveness” was not fulfilled for the purpose of the Appellant’s extradition to the United States. No express “forgiveness” was ever given by the United States authorities in the Appellant’s case. As for the behavior of the United States – that behavior was composed of various measures taken over the years. True, in 1995, the authorities gradually began to close their pending files. Thus, in January 1995, the New York police file was closed; similarly, in February 1995, the federal arrest warrant was canceled; and in June 1995, the Red Notice was canceled as well. However, the original arrest warrant and the indictment itself have remained pending to this very day and were never canceled.

 

              The circumstances described above do not amount to “forgiveness” for the purpose of the extradition laws. While the United States authorities took measures toward closing files against the Appellant, they nonetheless left certain parts of the criminal procedure untouched – apparently in the expectation that, once the impediment to extradition had been eliminated by means of an appropriate amendment to the Convention, it would be possible to resume the process. Under those circumstances, the exception of “forgiveness” is not applicable against extradition, and the argument in this regard is denied.

 

An exception to extradition: the lapsing of the limitation period for the offenses under the laws of the State of Israel – is that condition fulfilled in this case?

 

58.         The Appellant’s principal argument is that, because 22 years have passed since the filing of the indictment against him in the United States, the offenses for which his indictment is sought have expired under the statute of limitations pursuant to Israeli law. As such, the request for extradition should be denied, due to the statute of limitations exception, pursuant to Article 2B (A) (6) of the Extradition Law.

 

59.         The Extradition Law states as follows:

 

“Exceptions to extradition

2B. (A) A wanted person shall not be extradited to the requesting country in any of the following cases:

...

(6) If the request for extradition was filed as a result of an offense or penalty for which the limitation period has lapsed, pursuant to the laws of the State of Israel.”

 

              In specifying the lapsing of the offenses or the penalties pursuant to the laws of the State of Israel as an exception that precludes extradition, the Israeli legislators clarified the great importance they attribute to the passage of time between the date of perpetration of the criminal act and the date on which the accused is brought to trial before a criminal court, as a cardinal consideration in protecting the rights of persons accused in a criminal proceeding within the Israeli legal system. As a value of special constitutional importance, it was applied by Israeli law within the framework of extradition proceedings as well. In so doing, the Israeli legislators emphasized the superiority of the consideration of protecting the rights of accused persons – within the institution of the statute of limitations – even relative to the important values that the institution of extradition seeks to accomplish: international cooperation in the extradition of offenders, as part of the worldwide war on crime. In specifying the exception to the statute of limitations under Israeli law, the Israeli legislators emphasized the existence of the duty of protecting the rights of persons accused in criminal proceedings, according to the values of the domestic legal system, even in the case of an extradition proceeding, which is designed to enable cooperation between countries in enforcing the criminal laws against perpetrators of grave crimes. In the view of the Israeli legislators, not even the importance of the extradition proceedings for the purpose of enforcing criminal norms at the international level, nor the importance of cooperation between the convention member states to achieve the purposes of the extradition laws, has diminished the need to take pains to protect the rights of accused persons from belated law enforcement, which extends beyond the criminal limitation period as defined under Israeli law; in this context, the Israeli legislators have kept in mind the constitutional right to freedom – not only from arrest and imprisonment, but from extradition as well. In this regard, the Israeli legislators gave clear expression to the superiority of the values of the domestic legal system, even relative to Israel’s international undertakings vis-à-vis the convention member states, in light of the nature of those values as basic concepts of human rights under prevailing law in Israel. Accordingly, in examining the question of the lapsing of offenses attributed to a person for whom extradition is sought, it is necessary to clarify whether the offenses have expired according to the concepts of domestic Israeli law, and to accomplish, in interpreting the Extradition Law, the principal purpose for which the exception to the statute of limitations was enacted – the purpose of protecting the right to liberty of a person for whom extradition is sought, after the lapsing of the limitation period between the date of the offense attributed to him and the commencement of the extradition proceedings.

 

60.         The subject of the statute of limitations as an exception to extradition appeared even in the original version of the Extradition Law, in which a “double” test was imposed regarding the statute of limitations. According to that test, the extradition of a wanted person to a requesting country was not possible if the limitation period for “that offense or the penalty imposed upon him has lapsed, under the laws of the requesting country or under the laws of the State of Israel” (Article 8 (2) of the Extradition Law as it was then worded). In 2001, the provision in question was amended; the amendment clarified that, from that time forth, it would not be possible to extradite a wanted person in cases in which the limitation period for  the offense attributed to him, or the penalty imposed upon him, had lapsed under the laws of the State of Israel, irrespective of the question of the statute of limitations in the requesting country. The reason for this change was explained in the explanatory note to the Extradition Bill (Amendment 8), 5761-2000, which stated as follows: “It is proposed to establish that the laws of the statute of limitations of the State of Israel alone are what shall prevent the extradition of a wanted person to the requesting country; the legal assumption is that an enlightened state does not demand the extradition of a person unless there is no impediment to the application of its laws to that person, once he has been extradited” (Bill 154, at 158; Efrat Case, paragraph 4).

 

61.         The exception regarding the statute of limitations has been linked, in the legal literature, to the basic condition for extradition concerning the requirement of “double criminality,” i.e.: that it would be possible to bring the wanted person to justice before a criminal court in Israel, had the criminal laws of the State of Israel applied to him. This has been expressed as follows:

 

“This basic condition is also reflected in the fact that, if the limitation period for the offense or the penalty has lapsed under Israeli law, the person will not be extradited, although under the laws of the requesting country, the limitation period has not yet lapsed. And the reason for this is that the state should not and cannot extend legal assistance in the form of extradition unless there is complete and simultaneous symmetry, from the standpoint of the right to bring the accused to justice, between the requesting country and the requested country, with the exception of the special factor that conferred jurisdiction for the offense upon the requesting country alone. The conditions for extradition concerning the requested country are no less important than those that concern the requesting country; in fact, quite the opposite is true – they are more important” (Feller, On Retroactivity, at 417; emphases not in the original).

 

              The author further noted:

 

“A major rule holds that the authority of the requested country for extradition is subject to its authority with regard to direct adjudication, were the matter in question adjudicable within the state. … The adjudicability of the matter in this country means that an act was an offense in the requested country at the time it was committed, and no legal entity has yet intervened that might to expropriate the right to bring the accused to justice for that offense and in that country, were it to have jurisdiction over the act, whether because it was perpetrated within the territory of the country or for any other reason” (id., at 418-419).

 

              The lapsing of the limitation period for the extraditable offenses, or their penalties, pursuant to the concepts of Israeli law is, therefore, an exception to the extradition of the person to the requesting country, which affects the very crux of the judiciary power to institute the extradition proceedings.

 

62.         The question in this case is, therefore, whether, according to the concepts of the Israeli legal system, the limitation period for the offenses in the indictment against the Appellant lapsed prior to the initiation of the extradition proceedings against him in 2007.

 

              More precisely: in examining this question, we may assume that there is ostensibly no procedural barrier, with respect to the statute of limitations, to trying the Appellant in the United States and according to its laws. This may be because of his having evaded the law in the United States, which, according to American law, may toll the running of the limitation period and may not constitute a procedural barrier to bringing the fugitive to justice, even after many years; or it may be because the filing of the indictment in the United States, in and of itself, tolled the running of the limitation period. Given that assumption, we must examine whether the statute of limitations applies to the offenses in the indictment against the Appellant under Israeli law, as this is the meaning of the exception imposed by the statute of limitations on extradition under the Extradition Law, which requires examination of the statute of limitations under the laws of the State of Israel.

 

The statute of limitations in criminal cases under the laws of the State of Israel – the law and its purposes

 

63.         The subject of the statute of limitations in criminal cases is governed, under Israeli law, by the provisions of Articles 9 and 10 of the Criminal Procedure Law; Article 9 deals with the lapsing of the limitation period for offenses, and Article 10 deals with the lapsing of the limitation period for penalties. The provisions relevant to this case are those in Articles 9 (A), (C) and (D) of that Law, which state as follows:

 

“Lapsing of the limitation period for offenses

9. (A) In the absence of another provision in this matter in any other law, a person shall not be tried for an offense if the following periods have lapsed since the date on which it was committed:

 

(1) For a felony for which the penalty is death or life imprisonment – 20 years.

(2) For another felony – 10 years.

(3) For a misdemeanor – five years.

(4) For a  transgression– one year.

…

 

(C) For a felony or a misdemeanor, for which, within the periods set forth in subsection (A), a statutory investigation was held, or an indictment was filed, or a proceeding was conducted on behalf of the Court, the counting of the periods shall begin on the last day of the proceeding in the investigation, or on the date of filing of the indictment, or on the last day of the proceeding on behalf of the Court, whichever is later.

 

(D) The provisions of subsection (C) shall apply to an extraditable offense for which a request for extradition was submitted to the State of Israel, and any of the actions set forth in said subsection, which was carried out in the requesting country, shall extend the counting of the limitation period for said offense pursuant to this Article, as if it had been carried out in Israel.

 

64.         In Israeli law, the arrangements governing the statute of limitations in criminal matters are characterized by a great degree of rigidity. Criminal law establishes defined periods of limitation for  offenses, in accordance with their classification on a scale of severity. Upon the lapsing of these periods, the possibility of enforcing criminal law on the offender is absolutely negated, and the court has no further discretion in this regard: “The lapsing of the limitation period for the offense, as an exception to the realization of criminal liability, blocks any proceeding that is intended to impose criminal liability for an offense that has expired” (S.Z. Feller, Elements of the Penal Laws [Hebrew], Volume II, 637-638 (1987), hereinafter: Feller, Elements of the Penal Laws). The date on which the limitation period for the offense lapses is razor-sharp. On the day before the limitation period lapses, the accused is liable for a criminal offense; on the day thereafter, he is exempt from criminal liability (Criminal Appeal 347/07, Anonymous v. State of Israel, paragraph 8 of the ruling rendered by Justice J. Alon (unpublished, November 18, 2007), hereinafter: the Anonymous Case 2). However, a generally accepted opinion is that the effect of the statute of limitations in criminal matters is “procedural” and not “substantive,” and that, as a general rule, an accused may waive the argument, and such a waiver is legally valid (Criminal Appeal 6629/98, Heller v. State of Israel, IsrSC 56 (4) 346, 352-353 (2002)).

 

65.         Setting “razor-sharp” deadlines on the lapsing of limitation periods for offenses may involve a certain degree of arbitrariness. However, it has already been stated that: “This is the fate of times, dimensions, weights, distances and various other measurable concepts, the outermost edges of which are somewhat arbitrary. And this is a known fact” (Bazaq Case, at 307). This rigidity has a clear component of protection of the substantive right to liberty of accused persons, who are entitled to expect that the sword of being brought to justice, hanging over their heads for many years, will be lowered upon the lapsing of a long limitation period, and that they will not be forced to live in fear of being brought to trial for an unlimited period of time.

 

66.         The reasons for setting limitation periods for criminal offenses are complex.

 

              First, from the general public standpoint, the lapsing of the limitation period leads to forgetting and forgiveness, the roots of which are implanted in the passage of time. The more time elapses, the more likely public interest in trying the offender will fade. Time dulls the pain and blunts the significance of the offense (HCJ 1618/97, Sachi v. Municipality of Tel Aviv-Yafo, IsrSC 52 (2) 542, 574 (1998)).

 

              Second, from the standpoint of the accused’s interests, it is preferable for the criminal procedure being conducted against him to end quickly. Having the status of a suspect or an accused disrupts a person’s life, subjects him to a social stigma and requires him to invest vast resources in conducting his defense. The right of an accused to a rapid conclusion of his trial has been recognized as a basic right for persons accused in criminal procedures, as part of the constitutional right to liberty. According to the concepts of Israel’s legal system, the conclusion of a criminal procedure within a reasonable period of time is considered to be one of the aspects of the constitutional right to a fair criminal proceeding.

 

              Third, another reason for the statute of limitations stems from the interest in clarifying the truth, in view of the fear that, as time passes, evidence is lost and witnesses’ memories fade, the ability to clarify the facts will decline. The effect of this reason is palpable vis-à-vis both the accused and the entire public; after all, clarifying the truth in a criminal trial – which means refraining from convicting an innocent person and convicting the person responsible for committing the offense – is a public interest of supreme importance. It is certainly also in the interests of the person who is facing trial.

 

              Fourth, the value of the statute of limitations in criminal cases also involves the aspect of the system-wide benefit, which is derived from the importance of rapid, efficient enforcement of criminal law, as well as from the wish to provide the enforcement authorities with an incentive to conclude the handling of the offenses relatively quickly, in order to clear the way and free up time for the next matters in line (for the entire set of considerations, see: HCJ 6972/96, The Movement for Quality Government v. Attorney General, IsrSC 51 (2) 757, 769-773 (1997), hereinafter: The Movement for Quality Government Case; HCJ 4668/01, MK Yossi Sarid v. Prime Minister, IsrSC 56 (2) 265, 286 (2001); Civil Service Appeal 9223/02, Zaarur v. Civil Service Commission, IsrSC 57 (2) 77, 82 (2003); Criminal Appeal 9657/05, Anonymous v. State of Israel, paragraph 24 of the ruling handed down by Justice Levy (not yet published, March 3, 2009)).

 

67.         The arrangement governing the statute of limitations for criminal offenses, as established under law, reflects a balance among various considerations that pertain to the public interest as well as to the offender’s private interest: “The balancing point is between the basic interest in bringing offenders to trial, the strength of which diminishes over time, and the need for rapid proceedings. The balancing point is also influenced by the effect of the interest in clarifying the truth, which may strengthen or weaken the recognition of the statute of limitations” (The Movement for Quality Government Case, at 774). By virtue of this balance, the law also recognizes various situations that are capable of tolling the running of the limitation period in criminal cases. In fact, the usual starting point in time for the limitation period is the date on which the offense was committed (Article 9 (A) of the Criminal Procedure Law). However, as set forth in Article 9 (C) of that Law, a statutory investigation, the filing of an indictment or a proceeding on behalf of the court may toll the running of the limitation period and to start it running again, whereby these points in time serve as “later starting points for restarting the running of the limitation period” (The Movement for Quality Government Case, Justice Strasberg-Cohen, at 777). With regard to these causes for tolling the running of the limitation period, the following has already been clarified:

 

“What interests us is halting the running of the limitation period and absolutely wiping out the period that elapsed, and not just delaying the count. Each time one of the ‘events’ set forth in the article occurs, the counting of the limitation period begins anew. Accordingly, a person who committed an offense will not be able to take shelter under the wings of the statute of limitations unless a limitation period has lapsed which began with the latest of the proceedings set forth in Article 9 (C). A direct result of that is that many more years than those set forth in Article 9 (A) might elapse between the date on which the offense was perpetrated and the filing of an indictment – if investigative procedures are conducted from time to time in the course of those years. All this, of course, applies as long as the time interval between one procedure and the next does not exceed the limitation period” (id., at 765-766).

 

68.         The lapsing of the limitation period under the laws of the State of Israel, for offenses in an indictment for which the extradition of a person located in Israel is sought, blocks the extradition. “The argument of the lapsing of the limitation period is an argument that blocks extradition” (Bazaq Case, Justice Heshin, at 304).

 

69.         The exception to extradition due to the lapsing of the limitation period for the offenses under Israeli law, is not only rooted in the concept that it is necessary to protect the accused’s right to a fair criminal proceeding. Rather, it is also compatible with the principle of “double criminality,” which is a basic principle of the laws of extradition. As set forth above, one of the conditions for extradition is that a person must have been charged or convicted of an “extraditable offense” in the requesting country (Article 2A (A) (2) of the Extradition Law), and an “extraditable offense” is defined as an offense which, had it been committed in Israel, would have been punishable by one year’s imprisonment or a more severe sentence (Article 2 (A) of the Law). The principle of “double criminality” is not realized in its entirety when, in the requested country – Israel – it is not possible to try the person in a criminal court, due to the lapsing of the limitation period for the offenses attributed to him, even if the presumption is that the lapsing of the limitation period does not wipe out the offenses, but merely constitutes a barrier to trying him for them. The principle of “double criminality” is not limited solely to the existence of the accused’s dual criminal liability according to the laws of the requesting country and the requested country. It is also necessary for there to be, under both legal systems, a real ability to try him before a criminal court in each of the two countries. Thus, if it is not possible to bring an accused to trial before a criminal court in Israel, he must not be extradited to the requesting country, even if there is no limitation on the ability to hold his trial in that state. This applies, inter alia, to the lapsing of the limitation period for offenses. Prof. Feller comments on this as follows:

 

“A minimal basic condition, which exists in any normative system with regard to extradition, is that a person must not be extradited unless it would have been possible to try him in Israel, had the criminal laws of the State of Israel applied to him; ... A direct result of this is that, if there were any impediment to the initiation of criminal proceedings against the wanted person, were he to be brought to justice for the same offense under the laws of the State of Israel, the state is not entitled to lend a hand, through the use of extradition proceedings, to another country, thereby enabling the other country to initiate criminal proceedings against him. The scope of the authority of the requested country for extradition is subject to the scope of its authority with regard to direct adjudication, if the wanted person was subject to adjudication in that country for the offense for which the extradition is sought” (Feller, On Retroactivity, at 417; emphasis in the original).

 

70.         Hence, in cases where the limitation period has lapsed under Israeli law for the offenses in an indictment that are attributed to an accused, and those offenses are no longer punishable under that law, Israel is not entitled to initiate extradition proceedings for such a wanted person. This is because there is an impediment that prevents Israel itself from initiating a criminal proceeding on Israeli territory against such a person, and the impediment originates in the lapsing of the limitation period for the offenses under the statute of limitations. In any event, the requirement of “double criminality,” which is a precondition for extradition, is not met.

 

Actions that toll the running of the limitation period in criminal cases

 

71.         Article 9 (C) of the Criminal Procedure Law enumerates various causes that toll the running of the limitation period for offenses under Israeli law. These causes are a statutory investigation, the filing of an indictment or a proceeding on behalf of a court. Article 9 (D) of the Criminal Procedure Law specifies that these causes also apply with regard to extradition, insofar as they apply with regard to the requesting country. The law creates an equivalency, for the purpose of extradition, between actions that toll the running of the limitation period in a criminal procedure in Israel and identical tolling actions that take place in the requesting country. From this point of view, the public interest in enforcing criminal law on the accused is given priority over the interest of such an accused in the rapid completion of the proceeding in his case; this priority is based on recognition of the need to give law enforcement authorities effective tools for taking measures aimed at bringing offenders to justice, and on the understanding that, at times, the authorities encounter difficulties in solving crimes and collecting the evidence required for the purposes of the trial, and that time – occasionally, even a long time – is required for the completion of these actions. This is the case with regard to trials in Israel, and also with regard to extradition proceedings, when the actions involved in the investigation and the trial are carried out in the requesting country. The situations that toll the running of the limitation period pursuant to Article 9 (C) of the Criminal Procedure Law are intended to give law enforcement authorities the possibility of doing their work unhampered by the constraints of the statute of limitations throughout the police investigations, throughout the actions implemented by the prosecution for the purpose of filing an indictment, and throughout the legal proceedings thereafter. To enable the authorities to enforce the law, priority was given to ensuring that the accused are prosecuted to the full extent of the law, over the value of preventing a delay in justice for the accused. All this applies as long as such actions are being implemented and proceedings are taking place in a manner that justifies the delay. However, when the investigative actions have been completed and an indictment has been filed, and no further investigative actions are performed, and yet no judiciary proceedings are taking place, the limitation period begins anew on the date of filing the indictment.

 

72.         The interpretation of the term “investigative actions”, for the purpose of tolling the running of the limitation period, calls for adherence to the true purpose for which the authorities were given an extended period of time to act, without the fear that the limitation period for the offenses would lapse. This interpretation does not allow the term in question to be stretched beyond its boundaries, in order to obtain an improper extension at the expense of the basic right of the subject or the accused to a rapid and proper criminal proceeding which will fully examine the question of his criminal liability.

 

73.         The meaning of the term “a statutory investigation,” as an act that tolls the running of the limitation period in criminal cases pursuant to Article 9 (C) of the Criminal Procedure Law, has been discussed extensively in case law. It has been emphasized that an investigative action as set forth above must be a genuine action, rather than a pointless proceeding, which is solely intended for the purpose of tolling the running of the limitation period, and an administrative procedure that amounts to no more than preparation for an investigation is not sufficient. The proceeding that must take place is one that reflects a genuine act that prepares the future criminal action (Criminal Appeal 207/56, Sawitat v. Attorney General, IsrSC 11 (1) 518, 523-524 (1957); Criminal Appeal 309/78, Barami v. State of Israel, IsrSC 33 (1) 576, 577-578 (1979), hereinafter: the Barami Case; Criminal Appeal 211/79, Gazit & Shaham Construction Co. Ltd. v. State of Israel, IsrSC 34 (1) 716, 720-722 (1979), hereinafter: the Gazit & Shaham Case; Leave for Appeal 268/85, Habasha v. State of Israel, IsrSC 39 (2) 335, 336 (1985); Leave for Appeal 1596/98, Halil v. State of Israel (unpublished, May 5, 1998); Criminal Appeal 4745/97, Bonei Habira Ltd. v. State of Israel, IsrSC 52 (3) 766, 786-787 (1998); Anonymous Case 2 and references id.). The various aspects of case law in this regard were recently summarized by Kedmi in his book; the highlights of that summary are as follows:

 

“A statutory investigation, in this context, may be an investigation by the police, and it may be by any person or entity with the statutory power to conduct an investigation for that offense, provided that the investigation in question is intended to prepare the criminal action in connection with that offense. The filing of the complaint, in and of itself, does not constitute an investigative procedure, nor does it entail the opening of an investigation; an investigative procedure must be “an official, substantive and practical proceeding, rather than mere ‘preliminary clarifications’ or ‘collection of information’, which do not entail the performance of  true investigative actions” (Jacob Kedmi, On Criminal Procedure [Hebrew], Part II 1322 (2009) and references id.; for a review of case law on this subject, see also: Zalman Yehudai, The Laws of the Statute of Limitations in Israel [Hebrew], Volume I 364-370 (1991); cf. Bazaq Case, at 306-307; Criminal Appeal 7014/06, State of Israel v. Limor, paragraph 50 (unpublished, September 4, 2007), hereinafter: the Limor Case).

 

74.         An investigative action, which can toll the running of the limitation period, is therefore characterized by a real action that prepares and promotes the criminal action. It consists mainly of the  collection of evidence. In most cases, this is implemented prior to the filing of an indictment. The performance of investigative actions after the filing of an indictment is a non-routine procedure, which is intended to complement an investigation that was already performed, when new material is discovered or new channels for investigation are opened, which had not been known previously, or when witnesses are discovered who had not been available at an earlier stage. Various actions on behalf of the prosecution following the completion of the investigation, which are not related to the investigation and are not intended to promote it, will not be considered investigative actions for the purpose of tolling the running of the limitation period. Various actions performed by the prosecution following the filing of an indictment, which are intended to locate the offender or to bring him to justice, are not defined as investigative actions. Should new investigative actions be performed in the course of the legal proceeding, they are, in any event, encompassed within it, in view of its nature as an act that tolls the running of the limitation period, whereby a new limitation period begins only upon the conclusion of the judicial proceeding.

 

75.         The statute of limitations in criminal cases is one of the important procedural rights of the accused, within the framework of his constitutional right to liberty, granted to him by constitutional law. The tolling of the limitation period, following one of the aforementioned events, enables an extension, and at times a considerable extension, of the period within which criminal proceedings may be initiated against the accused. By its very nature, it violates his constitutional right; therefore, it must be proportional and must serve a proper purpose. Interpretation of the question of the concrete existence of events that toll the running of the limitation period is cautious and tends to be restrictive, in light of the impact of those events on the accused’s basic right to liberty. The burden of proof for the existence of such events is incumbent upon the prosecution, and doubt in these matters works in favor of the accused:

 

“Once the limitation period set forth under law had lapsed, ... the state was required to prove that, within that period, the running of the limitation period was tolled by the opening of an investigation... and because it did not meet that burden, the accused is entitled to benefit from the passage of time” (Barami Case, at 578, emphasis not in the original; see also: Gazit & Shaham Case, at 721; Anonymous Case 2; Articles 34U and 34V of the Penal Law).

 

From the general to the specific: application of the provisions governing the statute of limitations, pursuant to Article 9 of the Criminal Procedure Law, to the Appellant

 

76.         The offenses attributed to the Appellant in the indictment that was filed against him in the United States are felonies. Accordingly, pursuant to Article 9 (A) (2) of the Criminal Procedure Law, the limitation period for them is 10 years. The indictment attributes to the Appellant sexual offenses committed during the years 1980-1984; on the other hand, the request for extradition on behalf of the United States was filed in 2007. In actual fact, two limitation periods had lapsed, one after the other, between the time the offenses were committed and the initiation of the extradition proceeding, without the Appellant having been brought to trial. The first period began in 1984, at the time the last of the offenses was committed, and ended in 1994; thereafter, an additional limitation period lapsed between 1995 and 2005. After the end of the second limitation period, two more years went by before the initiation of the extradition proceedings in 2007, which opened a third limitation period in this case.

 

During this long period of time, since the offenses attributed to the Appellant were committed, was the limitation period tolled by one of the tolling actions set forth in Article 9 (C) of the Criminal Procedure Law?

 

77.         It appears that the only action that may be defined as tolling the running of the limitation period is the action related to the filing of the indictment in the United States in 1985, following the conclusion of the investigations by the American investigative authorities. Following the filing of the indictment, various actions were implemented by the American authorities in connection with trying the Appellant before a criminal court. These actions, however, were not investigative procedures or proceedings on behalf of the court, as these terms are used in Article 9 (C) of the Criminal Procedure Law, which may postpone the running of the limitation period to a date later than the date of filing the indictment in 1985, after which a new counting of the period since  perpetration of the offenses began.

 

78.         The extradition proceedings in the Appellant’s case were actually blocked due to non-fulfillment of the condition under extradition law, whereby the offenses in the indictment must constitute “extraditable offenses” pursuant to the Convention, until the Convention was amended. During the resultant period of the impediment to extradition, various actions were, in fact, implemented by the United States authorities with a view to bringing the Appellant to justice before a criminal court; these, however, do not constitute actions that  toll the running of the limitation period pursuant to Article 9 (C) of the Criminal Procedure Law, nor do they comply with the concept of “statutory investigation” or “proceeding on behalf of the Court,” which toll the running of the limitation period, pursuant to the aforementioned provision.

 

79.         Thus, the issue of the original warrant for the Appellant’s arrest, along with the filing of the indictment, does not constitute an “investigative action”; rather, it is an outcome derived from a completed investigation. The Red Notice, which was issued by Interpol, is not a “statutory investigation”; rather, it is a request to the various countries to arrest the Appellant in order to enable his extradition to the United States and his trial on United States soil. This is not an investigative action; rather, it is an action by an international law enforcement authority aimed at achieving the arrest of the Appellant and bringing him to trial in the United States. Giving a broad interpretation to the Red Notice as an action that constitutes a “statutory investigation” cannot be reconciled with the purpose of the provision, nor is it in line with the duty of restrictive interpretation of the causes that toll the running of the limitation period pursuant to Article 9 (C) of the Criminal Procedure Law, in their capacity as exceptions that extend the limitation period, and thereby violate the accused’s right to freedom from criminal proceedings and extradition. In fact:

 

“Giving a broad interpretation to the expression ‘investigation’ for the purpose of setting a starting date for the running of the limitation period, in such a case, would give rise to a situation where society would ‘place a person in the dock’ approximately a decade after the perpetration of the offenses attributed to him, although his trial had not yet begun. It is difficult to imagine a greater distortion of justice” (The Movement for Quality Government Case, at 788).

 

              And if this was said of a period of approximately 10 years, it must apply a fortiori when the period in question is more than two decades, as in the present case.

 

80.         As for other actions that were implemented by the authorities in the United States from the filing of the indictment to the opening of the extradition proceedings – these, too, do not come under “investigative actions” that are capable of tolling the running of the limitation period. They are actions by the American law enforcement authorities that were intended to lead to the implementation of the criminal proceeding by extraditing the Appellant to United States territory. These actions are not  “investigatory,” nor are they a “proceeding on behalf of the court,” both of which toll the running of the limitation period. The extradition proceeding that was initiated in 2007 might have halted the limitation period as a tolling event, had it not been initiated after two – and even more than two – cumulative limitation periods had lapsed, whereby the event that begins the counting is the date of filing the indictment, in 1985. In any event, a considerable part of the actions that were performed by the American administrative authorities in the Appellant’s case, even were they to be considered as investigative actions, were conducted after February 1995, i.e., after the first limitation period for the offenses had come to an end. Under these circumstances, these actions obviously could not extend a limitation period that had expired even before they were implemented.

 

81.         That set forth above indicates that the limitation period in criminal law, which began running on the date of perpetration of the offenses attributed to the accused, was tolled by the filing of the indictment against him, which followed the completion of the investigative actions. Starting on the date of the filing of the indictment, a new limitation period began to run. After the filing of the indictment, no additional investigative actions were implemented and no legal proceedings were conducted in the Appellant’s case – because no extradition proceedings against him were possible, due to the definition of “extraditable offenses” in the Convention at the time, which did not extend to the offenses in the indictment against the Appellant. All the measures taken by the United States authorities and by Interpol after the filing of the indictment – including the arrest warrants that were issued, some of which were canceled – did not constitute “investigative” measures that toll the running of the limitation period; rather, they were actions that were intended “to keep the Appellant’s case alive,” based on the expectation that, at some future time, his extradition would become possible, if and when the Convention was amended.

 

              The starting date for the running of the limitation period, in this case, following the completion of the investigative actions, therefore occurred on the date of the filing of the indictment against the Appellant in 1985. Since then, no tolling events have taken place. Meanwhile, more than two limitation periods of 10 years each have lapsed.

 

82.         Ostensibly, this conclusion would be sufficient to conclude this Appeal with the outcome that the charges in the indictment against the Appellant are subject to the statute of limitations pursuant to the laws of the State of Israel and that, accordingly, an exception to extradition exists, which prevents extradition under law, and the requirement for “double criminality,” which constitutes a precondition for extradition, is not fulfilled.

 

              However, the events that toll the running of the limitation period under Article 9 (C) of the Criminal Procedure Law have been supplemented, pursuant to the ruling rendered by the lower court, by additional tolling causes, one of which is a cause in case law, and the other is a statutory cause. These additional causes led the Court to the conclusion that the limitation period was halted due to an “inability to act,” until 2007. The first cause is drawn from general law and dictates the suspension of the limitation period in cases where an impediment in law or in fact precludes the exercise of criminal law. The second, statutory, cause concerns the tolling of the running of the limitation period by virtue of Article 94A of the Criminal Procedure Law, which deals with the suspension of criminal procedures in cases where an accused has evaded the law, until it is possible to bring him to the continuation of his trial and to resume the procedures against him.

 

              We shall discuss these cases, one after the other, and examine whether they are capable of tolling the running of the limitation period under Israeli law, in such a way as to rule out the existence of the exception based on the statute of limitations with regard to the Appellant’s extradition.

 

The principle of “inability to act” as a cause that tolls the running of the limitation period in criminal cases

 

83.         A detailed statutory arrangement is provided in the Statute of Limitations Law, 5718-1958 for the statute of limitations in causes of action under civil law. That law sets forth various situations in which the limitation period is tolled and then restarted: deception and fraud (Article 7); uninformed limitation (Article 8); admission of the existence of a right (Article 9); minority (Article 10); mental illness (Article 11); guardianship (Article 12); marriage (Article 13); an action that was denied (Article 15); time spent outside of Israel (Article 14); and the closure of the courts (Article 17).

 

84.         Unlike the statute of limitations under civil law, the statute of limitations in criminal cases, which is principally founded on Article 9 of the Criminal Procedure Law, does not have an all-inclusive arrangement, which takes into account various situations of impediment that prevent the law enforcement authority from acting for the promotion of the criminal proceeding, for the purpose of calculating the limitation period, over and above the three tolling actions which are specifically mentioned in Article 9 (C) of the Criminal Procedure Law.

 

85.         There is an opinion, which has been expressed in various contexts, that it is possible to supplement the statute of limitations arrangement, which appears in Article 9 (C) of the Criminal Procedure Law, and which deals with tolling events, through the application of a general principle, which has not yet been set forth in written law. According to that principle, in cases where the competent authority has no possibility of promoting criminal proceedings due to an impediment beyond its control, this will have the effect of tolling the limitation period, the counting of which will resume when the impediment is eliminated. Prof. Feller commented on this in his book:

 

“These are situations in which, whether by virtue of the law or by virtue of an uncontrollable event, the competent authorities have no possibility of conducting proceedings to promote the realization of criminal liability – in which there is no possibility of conducting an investigation or a trial, or of taking measures toward the enforcement of the penalty. The consideration of passivity on the part of the authorities, which did not do what was incumbent upon them to do at the proper time  to promote the criminal proceedings, including the proceedings for the enforcement of a penalty – a consideration that is included among the considerations for recognition of the statute of limitations as an exception to the realization of criminal liability - is not present in those situations. Therefore, the law requires that the limitation period be impeded for the interval of time throughout which the situation in question prevails. The statute of limitations does not work against those who are incapable of acting – contra non valentem agere non currit praescriptio” (Feller, Elements of the Penal Laws, at 640).

 

              This idea was mentioned in the Amitai Case, in which President Barak pointed out that, by contrast to the statute of limitations under civil law, no comprehensive arrangement governing the statute of limitations has been enacted in criminal law, and stated that, along with the statutory provision on limitations in Article 9 of the Criminal Procedure Law, general situations have been recognized in which the running of the limitation period in criminal cases is suspended:

 

“Unlike the statute of limitations under civil law – which is anchored in the Statute of Limitations Law, 5718-1958 – the Criminal Procedure Law contains no general provisions with regard to the laws governing the statute of limitations. It would be appropriate, in the future, to develop a general doctrine of limitation in criminal cases, in which it will be possible to draw inferences, in similar matters, from the civil laws governing the statute of limitations. Be that as it may, situations have been recognized in which the running of the limitation period is suspended. These include situations that, for one reason or another, preclude the possibility of conducting an investigation, filing an indictment or holding a proceeding on behalf of the court. The rule is that the statute of limitations is suspended against those who are incapable of acting: contra non valentem agere non currit praescriptio... A typical case in such situations is one in which a person is entitled to procedural immunity, which does not allow for an investigation or  filing an indictment and, in any event, also does not allow for a proceeding on behalf of the court. This, for example, is the situation with regard to the president of the state (see Article 14 of Basic Law: the president of the state). This is the situation with regard to a member of Knesset” (HCJ 3966/98, Amitai – Citizens for Proper Administration and Integrity v. Knesset Committee, IsrSC 52 (3) 529, 545 (1998)).

 

86.         Criminal law in Israel recognizes express statutory arrangements that toll the running of the limitation period due to an inability to act on the part of the authority. Arrangements are recognized that confer immunity upon officeholders, on whom criminal law cannot be enforced throughout their term in office (Basic Law: the President of the State; Immunity, Rights and Duties of Members of Knesset Law, 5711-1951; with regard to the statutory immunity to trial of the president of the state, see: HCJ 962/07, Liran v. Attorney General, paragraphs 26-49 (unpublished, April 1, 2007); HCJ 5699/07, Anonymous (A.) v. Attorney General, paragraphs 21-24 of the ruling rendered by Justice Levy (unpublished, February 26, 2008)). The Extradition Law itself also suspends the limitation period according to Israeli law for the purpose of hearing a petition for extradition if the person wanted for extradition is serving a sentence in Israel for another offense (Article 11 of the Extradition Law; see also: Article 41 of the Military Jurisdiction Law, 5715-1955).

 

87.         However, according to the position expressed by Prof. Feller, there is no need for a statutory provision to toll the running of the limitation period in criminal cases, when there is an impediment that prevents the authority from acting (Feller, Elements of the Penal Laws, at 642). The causes of impediment also include factual situations of force majeure, which prevent the state from acting to bring a suspect to trial for offenses. As he says:

 

“The statute of limitations does not act against a society, the organized strength of which is paralyzed; or at least, not at the level of realization of criminal liability, when it is not capable of enforcing its penal laws on those who have violated them” (id., loc. cit.)

 

              In this context, examples are cited that include the takeover of the state by a foreign power, the occurrence of natural disasters, which prevent the administration from acting, the long-term hospitalization of a person for mental illness, and the like. This approach is accompanied by a warning (id., at 643):

 

“Because these are factual situations, there is no possibility of drawing up an exhaustive list. It is, however, fitting and proper to consider them conscientiously, so as not to make a mockery of the statute of limitations, by defining any event or any factual obstacle that delayed the procedures as a cause for tolling the limitation period. Acting in such a way could eliminate the statute of limitations entirely. Only weighty factual situations, which paralyze the activity of the state mechanism as a whole, or with regard to a certain type of cases, and which cannot be overcome except by postponing the procedures – only such exceptional situations should be considered as causes for tolling limitation periods by the interval of time during which the mechanism was not capable of coping with them” (emphasis not in the original).

 

88.         The principle of the “inability to act” – whether under law or as the result of a factual situation in the realm of force majeure – has not been extensively applied in Israeli law, insofar as it transcends the express statutory arrangements in these matters. The reason for this is clear: the application of a general principle of this type, with no express arrangement under law, would mean giving law enforcement authorities the means to significantly expand the extent of the limitation period in criminal cases, while directly violating a person’s legitimate expectation not to be brought to trial following the lapsing of the statutory limitation period. The application of the principle of “inability to act” following the enactment of the Basic Law: Human Dignity and Liberty – which recognized the supreme status of the human right not to be arrested or imprisoned, and not to be extradited, other than in accordance with law, whereby the harm inflicted by said law complies with the tests of the limitation clause – is fraught with difficulties. There is an obvious difficulty in imposing a general theory of “inability to act” in order to toll the running of the limitation period, when that theory is not anchored in law, no clear criteria for imposing it have been formulated, it involves uncertainty and can be predicted only with difficulty and, in any event, it is prejudicial to the accused. I believe it is highly questionable whether the principle of “inability to act,” as an extra-statutory factor that tolls the limitation period in criminal cases, complies with the test of constitutionality in the limitation clause of the Basic Law, as long as that principle is not directly governed by law and its legality has not been examined on the merits. In this context, the question even arises as to how it is possible to reconcile the arrangement that governs the statute of limitations under civil law – regarding which, although it does not involve the violation of  human rights and liberty, the legislators listed each and every one of the causes for delaying the limitation period – with the arrangement that governs the statute of limitations under criminal law. The latter directly affects the human right to freedom from trial, for which causes for delay, which are not mentioned anywhere under law, have been claimed, although the application of such causes would constitute a real violation of an accused’s expectation of release from the fear of being brought to justice. Is it even conceivable, in a constitutional regime, to exercise a general and undefined principle that is not anchored in law, in order to significantly expand the limitation period in criminal cases, while thereby directly harming the suspect or the accused?

 

89.         What ever the answer to this question may be – and we are not required to answer it in this case – the circumstances of the Appellant’s case do not constitute an “inability to act,” either under law, by virtue of the facts, or by virtue of force majeure, and are, therefore, not capable of tolling the running of the limitation period in order to bring him to trial before a criminal court or to extradite him. This is certainly the case when the general principle of “inability to act” is implied by way of the narrow interpretation required by its inherent violation of the right of suspects and accuseds not to be subjected to the “sword of Damocles” of criminal procedures for periods longer than the limitation period, as the latter is defined in Article 9 of the Criminal Procedure Law, including the events defined therein as tolling events.

 

90.         What is the nature of the true impediment in this case, which caused the criminal proceedings against the Appellant to be frozen for 22 years, since the filing of the indictment against him? The direct and clear answer to this is the phrasing of the Convention of Extradition between the United States and Israel, in which, prior to its amendment, the definition of “extraditable offenses” did not include the offenses in the indictment against the Appellant.

 

91.         As set forth above, pursuant to the Extradition Law, one of the preconditions for the extradition of a wanted person from Israel to the requesting country is that the person must have been charged or convicted in the requesting country of an “extraditable offense” (Article 2A (A) (2) of the Extradition Law). The Extradition Law, in its original format, dating from 1954, and following the amendment thereto in 2001, provided a broad definition of the term “extraditable offenses,” thereby creating a general framework of offenses from which the signatory states were required to select the specific “extraditable offenses” and to define them in an agreement between them for the extradition of offenders. Throughout the entire effective period of the Extradition Law, the definition of “extraditable offenses” thereunder included the offenses in the indictment against the Appellant.

 

              The Convention of Extradition between Israel and the United States is the only thing that gave rise to a legal impediment that precluded the extradition of the Appellant, until 2007. Under Article 2 of the Extradition Law in its original version, an extraditable offense was any offense that “is not of a diplomatic nature and which, had it been committed in Israel, would have been one of the offenses included in the Addendum to this Law.” Pursuant to the Addendum to the Law, any offense for which it was possible to impose the death penalty or imprisonment for a period greater than three years was considered an extraditable offense (subject to exceptions that are not relevant to this case; Article (A) of the Addendum). Also considered as extraditable offenses were specific offenses pursuant to the Amendment to the Penal Code Law (Bribery Offenses), 5712-1952, and pursuant to the Criminal Law Ordinance, 1936, which were expressly listed in the Addendum, although the penalties therefor are lighter than those set forth above (Article (B) of the Addendum). Because the sexual offenses attributed to the Appellant are offenses for which the maximum penalty set forth in the Penal Law is more than three years’ imprisonment (for example, the penalty prescribed for an act of sodomy is 14 years’ imprisonment), the offenses in the indictment against the Appellant, even according to the original version of the Extradition Law, were considered “extraditable offenses” under that Law. This situation remained unchanged following the amendment of the Extradition Law in 2001, when the Addendum to the Law was rescinded and the definition of an “extraditable offense” was rephrased as “any offense which, had it been committed in Israel, would be punishable by one year’s imprisonment or a more severe sentence.” The only impediment to the extradition of the Appellant, throughout the years, lay in the phrasing of the Convention of Extradition between Israel and the United States, which, until the Amending Protocol went into effect in 2007, included a list of only about 30 offenses for which extradition was possible. These included the offense of rape, but did not include the offense of sodomy.

 

              The definition of “extraditable offenses” in the version of the Convention of Extradition between the United States and Israel that was valid until 2007 therefore did not include the offenses in the indictment against the Appellant. For this reason, the United States did not file a formal request for extradition with the Israeli authorities until the Convention was amended, and Israel, for its part, did not comply with the request by the United States in 1985 to arrest the Appellant. Both parties recognized the fact that the Convention, in its format at the time, and as long as it remained unamended, did not fulfill a substantive condition for the extradition of the Appellant to the United States.

 

92.         For the purposes of this case, it may be assumed that the 1988 amendment to Israel’s Penal Law did not change the legal situation, whereby it was still not possible to extradite the Appellant to the United States, as long as the definition of “extraditable offenses” in the Convention had not been amended. The aforesaid amendment did not establish complete equivalency between offenses of sodomy and offenses of rape, and as long as offenses of sodomy were not included among the “extraditable offenses” pursuant to the Convention, the impediment to extradition remained in force.

 

              Only in 2007 did the Amendment to the Convention go into effect, thereby comprehensively changing the definition of “extraditable offenses” in the Convention to include, from that time forth, the offense of sodomy. From that point onward, the path had ostensibly been cleared for the extradition of the Appellant to the United States, with regard to the classification of the offenses in the indictment against the Appellant as “extraditable offenses.”

 

93.         As shown by the circumstances described above, no amendment to the Extradition Law was required in order to include the offenses in the indictment against the Appellant within the set of “extraditable offenses” pursuant to the Law. All that was needed, in order to make the extradition possible, was an amendment to the Convention of Extradition, so as to change the definition of an “extraditable offense” therein. Does the impediment to extraditing the Appellant pursuant to the Convention, prior to its amendment, constitute a recognized cause, by virtue of general law, which is capable of tolling the running of the limitation period in criminal cases and restarting it as of the Amendment to the Convention in 2007? The obvious answer to this question is in the negative.

 

94.         The governments of the United States and Israel are sovereign governments, which have the ability and the power to formulate extradition agreements between them, and to modify and amend such agreements as required and dictated by the reality of life. Modifications and amendments to extradition agreements are implemented by the relevant governments, and those governments do not depend on any other entity for that purpose. Furthermore, in this case, no argument has been raised, or even alluded to, with regard to the existence of any objective impediment that kept the governments from amending the Convention prior to 2007. The Amendment to the Convention of Extradition between Israel and the United States, for the purpose of expanding the definition of “extraditable offenses,” which was enacted in 2007, could have been enacted at a much earlier stage, and even within the limitation period of 10 years, which applies in Israel to criminal cases, as soon as the countries involved realized that offenses of sodomy – which are considered grave crimes – were not included in the definition of “extraditable offenses” in the Convention. It is difficult to attribute to the governments of Israel and the United States any “inability to act” that tolls the limitation period, when the ability, the power and the authority to eliminate the impediment, by means of a proper amendment to the Convention of Extradition, were in their hands, and in their hands alone. Let us imagine that the countries that were parties to the Convention in question had decided to amend it 50 years after the date the indictment was filed against the Appellant. Would anyone have dared to argue that the limitation period was tolled for 50 years due to “inability to act,” and that it would be possible to extradite the wanted person, as an elderly man, half a century after the filing of the indictment against him? Even the 22-year period that elapsed between the filing of the indictment against the Appellant and the filing of the request for extradition cannot be reconciled with the existence of an “inability to act” pursuant to “the law of the Convention” – which is basically a law of a contractual nature, which was created according to the wishes of the counties and could be changed according to their wishes. Furthermore, it was not argued that any “factual impediment” or impediment of the “force majeure” type existed, which could have explained or excused the passage of nearly a quarter of a century, which elapsed between the date of filing of the indictment and the initiation of the extradition proceedings in this case.

 

              The laws governing the statute of limitations in criminal cases in the Israeli legal system, in combination with the constitutional concept of the right of the accused to a fair criminal proceeding under criminal law, cannot be reconciled with a delay of this type as a recognized cause for tolling the limitation period.

 

95.         The ruling by the lower court also implies that an “inability to act” may also exist by virtue of the very fact that the person wanted for extradition fled from the requesting country to the requested country, and by virtue of the need to initiate extradition proceedings against him. I do not accept this argument as an “inability to act” which is capable of tolling the running of the limitation period. Extradition laws and extradition proceedings, by their very nature, are based on the initial assumption that the wanted person does not make himself available to the requesting country, and that he even flees beyond its borders and moves to the requested country since, otherwise, no extradition proceedings would be necessary. Extradition proceedings, by their very nature, are founded on the assumption that the wanted person perpetrated offenses in the territory of the requesting country and fled to the requested country. Against the background of that assumption, the laws of extradition state that no person shall be extradited from Israel if the offenses attributed to him have expired pursuant to the laws of the State of Israel. This exception to extradition rests on the assumption that the wanted person, who is residing in Israel, is not available for legal proceedings in the requesting country. Had this reality, in and of itself, been sufficient to constitute an “inability to act,” which tolls the running of the limitation period, the exception to extradition, which is founded on the statute of limitations, would have been rendered utterly devoid of any content whatsoever. The fact that the wanted person fled beyond the borders of the requesting country, where he had committed the offenses, is not an “inability to act” that is capable of tolling the running of the limitation period in criminal cases, according to Israeli law. The situation is different with regard to a wanted person who flees from an extradition proceeding that is being conducted in Israel; the latter, under certain circumstances, may constitute such an impediment, under Article 94A of the Criminal Procedure Law, which will be discussed below.

 

              I would therefore reject the reasoning of “inability to act” as a cause, by virtue of a general legal principle, that tolls the running of the limitation period in the Appellant’s case.

 

The tolling of the limitation period pursuant to Article 94A of the Criminal Procedure Law

 

96.         In 1995, a provision was added to the Criminal Procedure Law with regard to the “suspension of proceedings.” According to that provision, at any time after an indictment is filed and before sentencing, the court may suspend criminal proceedings, if it learns that the accused can not be brought for the continuation of his trial. The same provision established that there would be no impediment to the resumption of the trial, even if the limitation period in criminal cases has expired, as long as the reason for the suspension of the procedures resulted from the accused having evaded the law. The wording of the provision is as follows:

 

“Suspension of procedures

94A. (A) At any time after the filing of an indictment and before sentencing, the court may suspend the proceedings, whether at its own initiative or at the request of a prosecutor, if it learns that the accused can not be brought for the continuation of his trial.

 

(B) If the procedures are suspended pursuant to subsection (A), and it later becomes possible to bring the accused for the continuation of his trial, the prosecutor may notify the Court in writing of his wish to resume the proceedings, and once he has done so, the court shall resume the proceedings, and may continue them from the stage it had reached prior to the suspension thereof.

 

(C) Notwithstanding the provisions of Article 9, the proceedings may resume with the approval of the attorney general, for reasons that shall be recorded, even if the periods set forth in Article 9 have elapsed, between the date of suspension of the proceedings and the date on which  the accused can be brought for continuation of his trial, provided that the proceedings were suspended because the accused evaded the law.”

 

97.         In the explanatory note to the bill, the need for the aforesaid legislation was explained as follows:

 

“It is proposed to determine a new proceeding for the suspension of proceedings, pursuant to which the court, as long as it has not sentenced an accused, will be able to suspend a criminal proceeding at the request of a litigant, when it is not possible to locate the accused. This suspension will not constitute the acquittal of the accused.

 

It is further proposed to establish a provision with an exception to the existing provisions in Article 9 of the Law regarding the lapsing of the limitation period for an offense under the statute of limitations, and to determine that the period between the suspension of the proceeding and the date on which it is possible to request its resumption will not be taken into account in the limitation period. This is because the absence of an accused from his trial constitutes improper behavior on the part of the accused, and there is no justification for his benefiting therefrom” (Explanatory note to the Criminal Procedure Bill (Amendment No. 16) 5753-1993, 274, 277).

 

              Article 94A of the Criminal Procedure Law is designed to address, inter alia, situations in which it is difficult to locate accused persons who evade the law and do not appear at hearings in the course of their trial (see also: Attorney General’s Guideline No. 4.3011 (2001), “Suspension of proceedings due to the impossibility of locating a defendant”

(http://www.justice.gov.il/NR/rdonlyres/8C1711F7-0FD8-4639-B1AA-36A0C03C8CBD/0/43011.pdf).

 

98.         Might this provision constitute a factor that tolls the running of the limitation period that applies to the offenses attributed to the Appellant in this case? My answer to this question is in the negative, for the reasons set forth below:

 

              The provision in Article 94A of the Criminal Procedure Law is meant to provide a response, in domestic law, to a situation in which an indictment is filed against an accused in Israel and it is not possible to bring him for the continuation of his trial, for various reasons, inter alia, due to his having evaded the law. As such, it becomes necessary to suspend the legal proceedings. Under these circumstances of evasion of the law, the suspension period for the proceedings does not detract from the possibility of resuming the legal proceedings even if the limitation period has expired for the offenses that are the object of the criminal proceeding. The meaning of this provision is that, within the framework of criminal law enforcement in Israel, evasion of the law by an accused will not prevent the resumption of the proceedings, even if the limitation period for the offenses that are the object of the proceeding has lapsed in the meantime. The rationale for this is that anyone who evades the law is not entitled to benefit from the statute of limitations and, therefore, the suspension of proceedings that was caused by his fleeing will not prevent the resumption of the proceedings even if the limitation period for the offenses has lapsed in the meantime. Article 94A expressly refers to Article 9 of the Criminal Procedure Law, which is the article governing the statute of limitations in criminal cases, whereby Article 9 (D) applies the principle of the statute of limitations in criminal cases, and the causes for tolling the running of the limitation period, to extradition proceedings as well.

 

99.         What is the significance of the connection between the provisions of Article 94A with regard to suspending proceedings and delaying the limitation period as a result of the accused’s evasion of the law, and the rules governing the statute of limitations in criminal cases in Article 9, which are also applied to extradition proceedings? Can it be said, for the purposes of extradition, that a wanted person’s evasion of the law in the requesting country is equivalent to evasion of the law in Israel for the purpose of the applicability of a cause for delaying the limitation period pursuant to this provision? Or, on the other hand, should it be said that the provision applies only to flight from proceedings that are under way in Israel, including extradition proceedings that are initiated in Israel? The proper interpretation of these combined provisions is as follows: the legal provision that governs the delaying of the limitation period due to the “suspension of proceedings,” as set forth in Article 94A of the Criminal Procedure Law, refers solely and exclusively to evasion of the law by an accused, with regard to proceedings that are under way in Israel – either criminal proceedings or extradition proceedings held before an Israeli court. This provision cannot be exercised with regard to evasion of the law by an accused who has fled from the country requesting his extradition, as long as he is available for the extradition proceeding in Israel and has not fled from Israel as well. The laws governing the statute of limitations, as set forth in Article 9 of the Criminal Procedure Law, cannot be circumvented by the creation of a fiction, whereby evasion of the law in the requesting country is equivalent to evasion of the law in Israel and, therefore, the filing of an indictment in the requesting country and the flight from that country by the accused should be deemed to have fulfilled, by way of analogy, the conditions set forth in Article 94A, which enable the holding of extradition proceedings even after the limitation period has lapsed under Israeli law. Giving such an interpretation to the provisions of Article 94A, whereby the data that exist in the requesting country (i.e., the filing of an indictment and the evasion of the law in that country by the accused) are implanted into that provision for the purpose of extradition, renders the Israeli statute of limitations exception devoid of any content whatsoever. After all, with regard to extradition, the person involved will always have evaded the law in the requesting country and the indictment will always have been filed against him there. If these data are interpreted as tolling the running of the limitation period under Israeli law, the exception based on the statute of limitations loses all of its real content and substance.

 

              There will be those who ask: if that is the case, what is the validity of Article 94A with regard to extradition? The answer is that it applies to situations in which an accused has fled from Israeli law, when an extradition proceeding has been initiated against him in Israel. In such a situation, the proceeding may be suspended, and the suspension period will not be taken into account for purposes of the statute of limitations – provided that, on the opening date of the extradition proceeding, the limitation period for the offenses that are the object of the extradition has not yet expired.

 

100.       An attempt was made, in the ruling rendered by the lower court, to create a construction, whereby a “data conversion” technique would be used in applying Article 94A of the Criminal Procedure Law to the extradition proceeding before us. This technique refers to the replacement of the actual circumstances that occurred outside Israel, in corresponding hypothetical Israeli circumstances, while assimilating the data that actually occurred in the other country into corresponding hypothetical data in Israel (Further Criminal Hearing 2980/84, Avico v. State of Israel, IsrSC 60 (4) 34, 45 (2005); Further Criminal Hearing 532/93, Manning v. Attorney General, IsrSC 47 (4) 25, 35 (1993); Efrat Case, paragraph 7). In the Efrat Case, Justice Vogelman referred to the “data conversion” technique in a similar context. He stated as follows:

 

“In order to provide a response to the question of whether the limitation period for the offense has expired under Israeli law, we must accordingly perform a ‘data conversion’ procedure, “by replacing ‘the actual factual circumstances [which took place outside Israel] with corresponding, hypothetical Israeli circumstances’ ” ... This conversion will be conducted against the background of the reason underlying the legal rule. ...

 

    Under the law of the State of California, the aforementioned question does not arise. The laws governing the statute of limitations apply only up to the filing of an indictment, and not thereafter. In other words, the public interest prevails in any case where an accused has evaded the law, and no additional action involving the exercise of discretion is required. We should further note that, in the case before us, an arrest warrant was issued against the Appellant and is still valid, and the investigative efforts continued over the years, until he was located. These facts indicate the repeatedly expressed position of the law enforcement authorities in the United States with regard to the interest in bringing the Appellant to justice, notwithstanding the passage of time. We will convert these data to Israeli law, and we will find that, had the event taken place in Israel, then, in light of the gravity of the offenses of which the Appellant was convicted, his evasion of the law, and the continuation of the search for him over the years, the proceedings would have been suspended and then resumed when the accused was located, pursuant to Article 94A of the Criminal Procedure Law. ...

 

    Once we have found that, had the Appellant been convicted in Israel of two counts of rape, and had he escaped the fear of justice, the legal proceedings against him would have been suspended, and would have been resumed upon his capture, the conclusion is that, in light of the provisions of Article 94A of the Criminal Procedure Law, the offenses perpetrated by the Appellant did not expire under Israeli law, as was – rightly – ruled by the District Court” (Efrat Case, paragraph 7; emphases not in the original).

 

              The exercise of the “data conversion” technique, by way of a hypothetical application of Article 94A of the Criminal Procedure Law to the filing of an indictment in the requesting country and the evasion of the law by the accused in the country requesting extradition – in contrast to his evasion of a criminal proceeding (including an extradition proceeding) that is being conducted against him in Israel – and the application of this hypothesis as a factor that tolls the running of the limitation period under Israeli law, seems to me to be fraught with difficulties.

 

101.       Extradition laws under the Israeli legal system – including the exceptions to extradition, which, in turn, include the lapsing of the limitation period – are not affected by the fact that an accused fled from the territory of the requesting country. As a general rule, such flight is the motive for the extradition request. The fact that the wanted person fled from the territory of the requesting country does not affect the applicability of the laws governing Israel’s statute of limitations. Israel is obligated to examine whether, according to its own laws, the limitation periods for the offenses in the indictment had expired at the time of filing the request for extradition. Accepting the theory of “data conversion” for the purposes of the statute of limitations would mean that, in any case in which a wanted person flees from the requesting country to Israel, and an indictment is filed against him there, the limitation period would be tolled under Israeli law, and it would be possible to initiate extradition proceedings with no time limitation, in the spirit of the provisions of Article 94A of the Criminal Procedure Law – but this is not the case. Such an approach would render the exception of the limitation period under Israeli law, which prevents extradition under the Extradition Law, meaningless. It would enable the law enforcement authorities in the convention member states to tarry endlessly in initiating extradition proceedings, on the basis of the mistaken assumption that, notwithstanding the exception of the limitation period in the Extradition Law, the limitation period in force in Israel, for the purpose of extradition, is unlimited in time, merely because the wanted person fled from the requesting country – a typical and natural phenomenon in any extradition proceedings. It must not be assumed that the Extradition Law and the Criminal Procedure Law intended to give the state such freedom of action, from the standpoint of the protracted period of time involved. Moreover, such an interpretation is not reconcilable with the existence of the exception of the limitation period, which rules out extradition under the Extradition Law. The purposive interpretation leads to the obvious outcome that the applicability of Article 94A of the Criminal Procedure Law was intended for the purpose of domestic law within Israel, and for that purpose only, and that it is not possible to adopt an interpretive procedure of “data conversion” with regard thereto, by viewing the filing of an indictment in the requesting country and the flight by the wanted person from that country as if they had taken place in Israel, for the purpose of delaying the running of the limitation period. “Data conversion” in the proposed manner is not consistent with the determination of an independent exception of limitation under Israeli law, as a factor that prevents extradition, which requires examination of the internal Israeli experience, for the purposes of determining when the offenses attributed to the wanted person expire according to the concepts of the Israeli legal system. The answer to this question is given in Article 9 of the Criminal Procedure Law, which defines the limitation period for the offenses in question and the series of actions that may impede the running of the limitation period. An additional reason for delay is set forth in Article 94A of the Criminal Procedure Law – when the accused evades a legal proceeding that is being conducted against him in Israel (including an extradition proceeding). Another cause for tolling the running of the limitation period is the cause set forth under the circumstances mentioned in Article 11 of the Extradition Law, when  the extradition proceeding is delayed because the wanted person is in the process of being tried in Israel, or is serving a sentence in Israel, for another offense. The factor of the limitation period is, therefore, examined according to all the relevant data that exist in Israel, with no need for the “data conversion” theory in this context. As Bassiouni states in his book:

 

“The question of whether the offense exists and is prosecutable goes to the requirement of whether an extraditable offense exists, and if so, whether double criminality is satisfied; …

 

The manner in which the treaty or national law provision is applied varies from country to country. The requested country may consider the case as if the offense had been committed in the requested country and apply its own statute of limitation to determine whether prosecution would be barred. If so, extradition will be refused” (Bassiouni, at 769; emphases not in the original).

 

102.       Hence, if an accused evades the law in internal legal proceedings in Israel (including extradition proceedings that are being conducted in Israel), it is possible to apply the provisions of Article 94A of the Criminal Procedure Law and, subsequently, by resuming the procedures, including extradition proceedings, to overcome the limitation period that has lapsed. This is not the case when the accused did not evade the law in Israel and was available for the purposes of the extradition proceeding, both to the enforcement authorities in Israel and to the American authorities, for the purpose of filing the request for extradition. The fact that the wanted person escaped from the requesting country should not affect the domestic laws that apply to the statute of limitations in the requested country.

 

103.       It should be noted that the Convention of Extradition between Israel and the United States also specifies that the lapsing of the limitation period, according to the laws of the party receiving the request, also blocks extradition, as if the offense had been committed within its own territory. Thus, Article 6 of the original version of the Convention set forth various circumstances under which extradition would be excluded. One of said circumstances applies in cases where:

 

“The criminal action or the enforcement of the sentence for the offense was blocked due to the lapsing of the  limitation period, according to the laws of the requesting party, or would have been blocked due to the lapsing of the  limitation period,  according to the laws of the party receiving the request, had the offense been committed in its national territory” (Article 6.3 of the original version of the Convention; emphasis not in the original).

 

              In the 2007 Amendment to the Convention, Article 6 was canceled and an additional Article 8 was inserted, with the heading “The passage of time.” The article specifies that a state receiving a request for extradition may deny it in cases where, had the offense subject to extradition been committed in its territory, the statute of limitations would apply, according to its laws, to the wanted person’s trial or to his sentence.

 

              Hence, both before and after the Amendment, the Convention considered the lapsing of the limitation period under the laws of the requested country as a barrier to extradition. In order to examine whether the statute of limitations applies under the laws of the requested country, the elements of the offense are transposed, in a hypothetical manner, from the requesting country to Israeli territory, and the question is whether, assuming that the offense had been committed in Israel, it would have been subject to the statute of limitations under Israeli law. The wanted person’s escape from the requesting country is not transposed from the context of the requesting country to the context of the requested country, within the context of the statute of limitations. The wanted person’s escape from the requesting country is external to the offense and is not included among its constituent elements. Accordingly, the evasion of the law is relevant to the statute of limitations under Israeli law only when it actually takes place in Israel, and this, in the present case, refers to the evasion of extradition proceedings, which are under way in Israel. On the other hand, the wanted person’s flight from the requesting country, in and of itself, neither adds nor detracts in this regard.

 

104.       In this case, the Appellant left the United States in November 1984 and did not return, nor has he made himself available to the United States authorities since then. He may be considered a fugitive from justice in the requesting country – the United States. However, he cannot be considered a fugitive from justice vis-à-vis the Israeli authorities, whether for the purpose of his trial before a criminal court in Israel or for the purpose of the proceeding for his extradition to the United States. Throughout all those years, the Appellant lived in Israel, and his identity and place of residence were known to, and were not concealed from, the authorities. He was within reach of the Israeli law enforcement authorities all the time for the purposes of the extradition proceedings. He cannot be deemed a fugitive from justice with regard to the extradition proceedings, or with regard to other proceedings that might have been initiated against him in Israel. Therefore, the provisions of Article 94A of the Criminal Procedure Law do not in any way apply to this case. The fact that he evaded the law in the United States, as set forth above, neither adds nor detracts with regard to the matter before us.

 

105.       It should be noted that the circumstances in the Efrat Case were completely different from those of the matter before us, because the person for whom extradition was sought in that case – who had been convicted in the United States and had disappeared before being sentenced – evaded the law in Israel as well, and not only in the requesting country. Moreover, he was located for the first time only about six months before the request to extradite him was filed, after having been in hiding, throughout those years, under an assumed name, and after the investigative efforts in the United States had continued throughout the years until he was located (see: id., inter alia in paragraphs 1, 7 and 12). The statements cited above with regard to the application of the “data conversion” technique to that case were, therefore, made against the background of an entirely different context.

 

106.       Parenthetically, and although it is not strictly necessary, it should be noted that the attempt to utilize the provisions of Article 94A of the Criminal Procedure Law encounters further difficulties, each of which alone, and certainly all of which together, rule out any possibility of relying on it as a means of overcoming the lapsed limitation period in the Appellant’s case.

 

              First, the provisions of Article 94A were enacted in 1995, after the first limitation period in the Appellant’s case had lapsed. As such, the enactment of said provisions, following the lapsing of the limitation period, did not revive offenses for which the limitation period had lapsed before the provisions went into effect. The active effect of the provisions in question applies to all the issues for which the limitation period has not yet lapsed, and this is not one of those issues. The point raised above, whereby the limitation periods for offenses attributed to the Appellant had not lapsed prior to Article 94A of the Criminal Procedure Law going into effect due to an “inability to act,” which resulted from the content of the Convention prior to its amendment, cannot be accepted, for the reasons set forth above. Nor is it possible to accept – again, for the reasons listed above – the argument that the issuance of the Red Notice by Interpol had the effect of delaying the running of the limitation period, pursuant to Article 9 (C) of the Criminal Procedure Law, and that, accordingly, the limitation periods for the offenses in the indictment had not yet lapsed at the time of enactment of Article 94A.

 

              Second, Article 94A discusses the suspension of legal proceedings by the Court when it is not possible to bring the accused to justice. The provision discusses the suspension of legal proceedings and their resumption for the purpose of bringing the accused “for the continuation of his trial.” Under the circumstances before us, no legal proceeding, for which “resumption” is ostensibly now being sought, has taken place in the Appellant’s case. In the past, preliminary measures were taken by the United States government, with a view to extraditing the Appellant. These measures remained fruitless and did not give rise to legal proceedings, up to the date of the Amendment to the Convention in 2007. For the difficulty in viewing this situation as the “continuation of a trial” that ostensibly began after the reading of the indictment and was interrupted as a result of the accused’s evasion of the law, see: Criminal Appeal 4690/94, Avi Yitzhak v. Justice Tzemach, IsrSC 48(5) 70, 85 (1994); Article 143 of the Criminal Procedure Law; Criminal Appeal 1523/05, Anonymous v. State of Israel (unpublished, March 2, 2006), hereinafter: the Anonymous Case 3; and cf. Criminal File 60/94 (Tel Aviv District Court), State of Israel v. Gil (unpublished, November 30, 1995). The circumstances of this case are also not consistent with the specific conditions for the application of Article 94A of the Criminal Procedure Law, and it cannot be viewed as a source that might  give rise to the tolling of the limitation period in the Appellant’s case.

 

Summary on the question of expiry under the statute of limitations

 

107.       On the basis of all the above, the obvious conclusion is that the Appellant’s extradition to the United States is subject to the exception of the limitation period under the laws of the State of Israel. Two cumulative limitation periods, plus an additional two years, have lapsed in the Appellant’s case since the date of filing of the indictment against him in 1985. Under criminal law, the limitation periods must be counted from that time until the opening date of the extradition proceedings in 2007. I believe that no circumstances that toll the running of the limitation period have occurred in the Appellant’s case – whether according to various statutory alternatives pursuant to Article 9 of the Criminal Procedure Law and Article 94A of the Criminal Procedure Law, or according to a general principle pertaining to an “inability to act,” as argued.

 

An exception to extradition for reasons of “public policy”

 violation

 

108.       Even if there were no exception regarding the limitation period which prevented the Appellant’s extradition, I believe that it would be possible to rule out his extradition to the United States for reasons of “public policy” in Israel, due to the fact that 23 years have elapsed between the time the offenses attributed to the Appellant were committed and the extradition proceedings in his case were initiated in 2007; while the Appellant was within reach of the Israeli enforcement authorities throughout that entire time, his location in Israel was not concealed, and the governments of the United States and Israel had the possibility of amending the Convention and bringing about his extradition many years before it was actually done.

 

109.       One of the exceptions to extradition, pursuant to the Extradition Law, states that a person shall not be extradited to a requesting country if the extradition might  violate “public policy.” In the words of the Law:

 

Exceptions to extradition

2B. (A) A wanted person shall not be extradited to the requesting country in any of the following cases:

...

(8) If compliance with the request for extradition might violate public policy or an essential interest of the State of Israel.

 

              The idea embodied in this provision is intended to prevent the extradition of a wanted person from Israel to the requesting country, when the act of extradition might violate “public policy,” as this term is used within the generally accepted framework of social and legal concepts in Israeli society. The principle of “public policy” encompasses the entire realm of law, including all its branches; in view of its nature as an “open fabric,” it embodies various types of content, according to the subject and context of the matter to which it refers. “Public policy” is a supreme principle, which reflects basic values and value-related concepts of the legal system and the social order, indicating the proper mode of conduct for Israeli society in a wide variety of contexts. The concept of “public policy” has become established as an exception to extradition in cases where, under the circumstances of a particular case, extradition may conflict with recognized legal and social principles in Israel’s legal system. The concept of “public policy” extends to the entire Extradition Law (Further Criminal Hearing 612/00, Berger v. Attorney General, IsrSC 55 (5) 439, 459 (2001), hereinafter: the Berger Case). It is “a supreme principle, an umbrella principle with regard to the extradition or non-extradition of a certain person from Israel into the hands of a requesting country” (Criminal Appeal 2521/03, Sirkis v. State of Israel, IsrSC 57 (6) 337, 346 (2003), hereinafter: the Sirkis Case). It has been said, for good reason, that many of the interests related to Extradition Law may be gathered under the wings of this principle (Rosenstein Case, paragraph 52; Criminal Appeal 8010/07, Haziza v. State of Israel, paragraph 68 (unpublished, May 13, 2009), hereinafter: the Haziza Case).

 

110.       The significance and importance of the principle of “public policy” within the extradition laws have been acknowledged by this Court in a broad range of consistent case law. “It is a universal doctrine that a person shall not be extradited if the act of extradition violates the public policy of the extraditing state” (Bazaq Case, at 300). This doctrine concerns the “basic principles, profound outlooks and supreme interests of society and the state – principles, outlooks and interests that are so fundamental and so basic as to be worthy of taking priority over an act of extradition” (Sirkis Case, at 346; Yagodyev Case, at 585; Rosenstein Case, paragraph 52; HCJ 1175/06, Israel Law Center v. Minister of Justice (unpublished, February 13, 2006); cf. Eshkar Case, at 653). The principle of “public policy” shelters beneath its wings various values, the common factor being their place at the very crux of the foundations of Israel’s legal system. One of these values is the basic right of a person accused of criminal charges to a fair criminal proceeding. Also  encompassed within this right is the doctrine of “abuse of process”, which has developed in recent generations and has increased the strength of the defense of an accused’s right to a proper criminal trial (Haziza Case, paragraph 69; Efrat Case, paragraph 12). These values are implemented, according to Israel’s legal system, even with regard to the gravest crimes attributed to a person accused of criminal offenses.

 

The right to a fair criminal proceeding under criminal law

 

111.       A person’s right to a fair criminal proceeding under criminal law has been recognized as derived from his basic right to liberty and dignity. As such, it benefits from a supreme legal status. “The Basic Law fortified the accused’s right to a fair criminal proceeding. It did so by virtue of Article 5 of the Basic Law, in which a person’s right to liberty was established, and by virtue of the constitutional recognition of human dignity, of which the right of an accused to a fair criminal proceeding is a part” (Criminal Appeal 1741/99, Yosef v. State of Israel, IsrSC 53 (4) 750, 767 (1999); Retrial 3032/99, Baranes v. State of Israel, IsrSC 56 (3) 354, 375 (2002); HCJ 11339/05, State of Israel v. Be’er-Sheva District Court, paragraphs 24-25 of the ruling rendered by Justice Levy (unpublished, October 8, 2006)). A substantive violation of the right to a fair criminal proceeding may be tantamount to a substantive violation of the constitutional right to liberty and human dignity. This was pointed out by President Beinisch, who stated:

“Many authorities are of the opinion that when the Basic Law: Human Dignity and Liberty was enacted, the right to a fair criminal proceeding obtained a constitutional super-legislative status. This position makes much sense. An illegal violation of the right to a fair criminal proceeding in criminal proceedings may violate the constitutional right of the accused to liberty under s. 5 of the Basic Law. It may also harm the accused’s self-image and give him a feeling of degradation and helplessness, as if he is a plaything in the hands of others, to the extent of a violation of his constitutional right to dignity under ss. 2 and 4 of the Basic Law … In the case before us, we do not need to decide the question whether the right to a fair criminal proceeding and the specific rights derived therefrom have acquired a constitutional status for their whole scope. We can rely merely on the ruling that was recently confirmed in the case law of this court with an expanded panel of eleven justices, according to which ‘… in appropriate circumstances, a substantial violation of the right to a fair criminal proceeding will amount to a violation of the constitutional right to human dignity (see HCJ 1661/05 Gaza Coast Loval Council v. Knesset (not yet published), at para. 173; emphasis supplied – D.B)” (Criminal Appeal 5121/98, Issacharov v. Chief Military Prosecutor, paragraph 67 (unpublished, May 4, 2006)).

 

112.       The right to a fair and proper criminal trial applies to every accused, with regard to every offense, and in the context of all stages of criminal proceedings, including extradition proceedings. The expressions and characteristics of the right to a fair criminal trial are varied and multifaceted:

 

“The right to a fair criminal proceeding is a right with many aspects. Various principles contribute to securing it. The upholding of those principles ‘is a safety factor of supreme importance in doing substantive justice and safeguarding the rights of suspects, defendants and witnesses in criminal proceedings’ (HCJ 6319/95, Hakhami v. Levy, IsrSC 51 (3) 750, 755). Their role is to balance the unequal power relationship between the accused and the prosecution, which ordinarily benefits from a superior procedural status and from additional advantages, and to ensure that the accused is given a full opportunity to present a version of innocence and to act to prove it. ...

 

The right to a fair criminal proceeding also extends over the laws of extradition. Its expressions, as indicated in the Extradition Law, are many: the principle that precludes ‘double jeopardy’; the prohibition against extraditing a person for political or discriminatory reasons; the requirement for the presentation of prima facie evidence; the return to Israel of Israelis who were convicted abroad in order to serve their sentences; and the prohibition against extraditing a person to a country in which he would be executed, unless he would have been so punished in Israel. These principles are also anchored in extradition conventions, including the Convention between the United States and Israel (see Articles 5 and 6 of the Convention)” (Rosenstein Case, paragraphs 53-54).

 

113.       The right of an accused in a criminal case to a fair criminal proceeding also encompasses the expectation that he will not suffer a delay in justice. This means, inter alia, that he will not be subjected to the “sword of Damocles” represented by the opening of criminal proceedings against him for many years, and that, once a criminal proceeding has been initiated against him, it will be completed within a reasonable amount of time:

 

“An accused is entitled not to be placed in a protracted situation involving a delay of justice. This is a substantive right, and the efficient and rapid conducting of the proceedings contributes to its realization. The right not to be subjected to a delay of justice, along with other rights available to the accused, find shelter within the sound structure of the right to a fair criminal proceeding. The exercise of the right not to be subjected to a delay of justice is an essential component, albeit not a sufficient one, in realizing the right of the accused to a fair criminal proceeding...” (Anonymous Case 3, paragraph 22 of the ruling rendered by Justice Arbel).

 

114.       Assimilating the “public policy” principle in Israel into the laws and conventions of extradition requires a complex and cautious balancing act. The laws of extradition are designed to promote the important objectives of enforcing criminal law on offenders who are not within the reach of the requesting country, in which they committed their offenses. They are intended to foster cooperation between countries in the war on international crime which, in turn, requires reciprocity among convention member states in providing assistance with the extradition of offenders. In view of the important national and international interests embodied in the laws of extradition, it is essential that the exception to extradition founded on “public policy,” be exercised in a prudent and restrained manner and restricted to extreme situations in which the fear of harm to the accused as a result of the extradition is of such strength and power as to prevail over the important public interest in conducting the extradition. In fact, “The major principle is that the extradition must be conducted in accordance with principles formulated under law, and the duty of fulfilling the legislative purpose of the extradition laws will only recede in the face of extraordinary circumstances, which give rise to a substantive violation of a basic principle that tips the scales definitively in the opposite direction” (HCJ 852/86, Aloni v. Minister of Justice, IsrSC 41 (2) 1, 47 (1987), hereinafter: the Aloni Case). This means that exercising the exception to extradition for reasons of “public policy” is an extremely exceptional event (Anonymous Case, paragraph 31 and references id.; Yagodyev Case, at 585). This will be done only in exceptional cases, in which – notwithstanding the fact that, from every other standpoint, it would be proper and justified to extradite a certain wanted person to the country requesting his extradition – “this exception to public policy comes and informs us that, nevertheless, now that it has been found that the act of extradition will violate one of the fundamental outlooks of the state, one of the basic principles of ethics, justice, decency, or one of the values of Israel, the Court will not lend its hand to the extradition” (Sirkis Case, at 346).

 

115.       The principle of “public policy” is, therefore, reserved for extraordinary circumstances, in which there is a real fear of violating the basic values of society, ethics and conscience and, when consenting to the request for extradition, will be “a blatantly improper and unjust act” (Berger Case, at 459). in this context, a blatantly improper and unjust act does not merely refer to causing the wanted person to suffer as a result of the proceedings involved in his extradition; after all, the extradition proceedings are a priori intended to enable the enforcement of the law upon him, and this enforcement involves trial before a court of law and may end in imprisonment, and possibly even lengthy imprisonment. The suffering sustained by a wanted person as a result of the extradition proceedings and all that they involve is one of the natural results that accompany a criminal proceeding, including an extradition proceeding. That suffering, in and of itself, does not contradict the basic values of the State of Israel and Israeli society, which the doctrine of “public policy” is meant to protect (Sirkis Case, at 347). A violation of “public policy” is a violation that transcends the generally accepted and foreseeable result that accompanies an extradition proceeding (Aloni Case, at 46-47).

 

The doctrine of “Abuse of Process”

 

116.       A person’s right to a fair criminal proceeding under criminal law according to the concept of “public policy” in Israel is consistent with the doctrine of “abuse of process,” which has developed in Israeli law in the last few decades and has become an important value in protecting the rights of defendants in criminal proceedings.

 

              The doctrine of “abuse of process” has long since been anchored as a preliminary argument after a trial begins, pursuant to Article 149 (10) of the Criminal Procedure Law. By virtue of that provision, a defendant is entitled to claim that the filing of an indictment or the conducting of a criminal proceeding against him is “in substantive contravention of the principles of justice and legal fairness”.

 

117.       The argument of “abuse of process” may also be available to a wanted person in extradition proceedings, whether as part of the principle of “public policy,” which constitutes an exception to extradition, or as an independent defense, by analogy to the preliminary argument afforded to him in an ordinary criminal proceeding. The argument of “abuse of process” may be available to the accused, if only for the reason that the basic principles that are embodied in the principle of “public policy” also extend to the protected values that are encompassed by the doctrine of “abuse of process,” and which are based on the principles of justice, legal fairness and the right to a fair criminal proceeding (Rosenstein Case, paragraphs 9-10; Yisgav Nakdimon, Judicial Stays of Criminal Proceedings [Hebrew], at 73-74, 101 (2nd ed., 2009), hereinafter: Nakdimon). The role of the doctrine of “abuse of process” in criminal procedures, and the criteria for exercise thereof, was extensively discussed by this Court in the Rosenstein Case (in the ruling by Justice Levy):

 

“The central justification for using that authority is the desire to ensure that the law enforcement agencies behave properly, as required by their status as governmental bodies. It is intended to serve as a check on unbridled enforcement activity, which is blind to all other interests and denies the rights of the accused and the values of the rule of law. This is an unusual power, as are the circumstances that would justify its use. It integrates a complex interweaving of competing values: advancing the public interest in putting criminals on trial, beside recognition of the role of the rights of the accused; the desire to find the truth, but not at any price; protection of public security, beside the duty to uproot abuse of governmental power. A court examining whether the accused is to benefit from a ruling of outrageous conduct in a particular case must take this delicate and complex balance...into account” (id., paragraph 9).

 

118.       In the past, the applicability of the doctrine of “abuse of process” was limited to situations of “intolerable behavior on the part of the authority,” “outrageous conduct that entails persecution, oppression and maltreatment of the accused,” and situations in which “conscience is shocked and the sense of universal justice is assailed; things before which the Court stands open-mouthed and incredulous” (Criminal Appeal 2910/94, Yefet v. State of Israel, IsrSC 50 (2) 221, 370 (1994)). These restrictive criteria, however, were replaced over the years by more extensive tests, whereby it was found that the defense may apply in any case where “the conducting of a criminal proceeding genuinely violates the sense of justice and fairness, as perceived by the Court” (Criminal Appeal 4855/02, State of Israel v. Borowitz, paragraph 21 (unpublished, March 31, 2005), hereinafter: the Borowitz Case; a petition for a further hearing was denied: Additional Criminal Hearing 5189/05, Ayalon Insurance Co. Ltd. v. State of Israel (unpublished, April 20, 2006)). In the Borowitz Case, a three-stage test was established for examining the nature and role of the argument of “abuse of process” under the circumstances of a certain case. In the first stage, we must identify the flaws that occurred in the proceedings and ascertain the strength of those flaws; in the second stage, we must examine whether conducting the criminal proceeding, notwithstanding the flaws, constitutes an acute violation of the sense of justice and fairness. In so doing, the Court must balance the various interests while applying them to the concrete circumstances of the case. While doing so, importance must be ascribed to the gravity of the offense attributed to the accused; the strength of the evidence; the personal circumstances of the accused and the victim of the offense; the degree to which the accused’s ability to defend himself is impaired; the severity of the violation of the accused’s right to a fair criminal proceeding and the circumstances that caused it; the degree of culpability imputable to the authority; and the question of whether the authority acted maliciously or in good faith. Each of the aforesaid considerations must be given the proper weight, in accordance with the circumstances of the concrete case. In the third stage, if the Court is convinced that conducting the proceeding entails an acute violation of the sense of justice and fairness, it must examine whether it is impossible to cure the flaws that have come to light by moderate and proportional means that do not require setting aside the indictment (Borowitz Case, paragraph 21).

 

119.       As we have seen, the question of when a person’s extradition is liable to violate “public policy,” and thereby to violate the wanted person’s right to a fair criminal proceeding, and when conducting the criminal proceeding under the precepts of the Israeli legal system conflicts substantively with the principles of justice and fairness in law, requires a complex balance of a range of considerations and interests. The core of that balance can be found in the tension between the public interest in enforcing criminal law upon the offender, in order to secure public welfare and safety and, in so doing, to create an efficient system of international cooperation that will enable the extradition of offenders from one country to the other, in which the offenses were perpetrated; and the basic duty, even in extradition proceedings, of protecting the fundamental principles of the legal system, which recognizes, in all situations and all contexts, a person’s basic right to a fair criminal proceeding under criminal law, as part of his constitutional right to liberty. Also included within the act of balancing these contrasting values are considerations related to the nature, severity and extent of the offenses in the indictment; the anticipated harm to the victims of the offense if the wanted person is not extradited; the conduct of the enforcement authorities in the relevant country; the harm to the extradition relations between Israel and the requesting country, which is anticipated from denial of the extradition request; and the nature and intensity of the violation of the wanted person’s right to a fair criminal proceeding under criminal law, if the extradition proceeding is implemented.

 

120.       For the sake of comparison, let us refer to Articles 14 and 82 of the English Extradition Act of 2003, which extend protection to an accused against extradition under circumstances in which he may be exposed to “injustice” or “oppression,” due to the time that has elapsed since the offenses were allegedly committed, or since he was convicted. The terms “injustice” and “oppression” may be congruent; they group together all the cases in which the extradition of the accused would be unfair (Kakis v. Government of the Republic of Cyprus [1978] 1 WLR 779, 782-783). The complexity of the considerations that must be taken into account in this context, and the need to balance them against the background of the entire set of circumstances of the case and, inter alia, in view of the great delay in initiating the extradition proceeding, are reflected in the following statement:

 

“Ss 14 and 82 reflect long-standing principles of extradition law and have historically been held to cover situations where, by virtue of delay, the passage of time inhibits, by dimming recollection or otherwise, proper consideration of trial issues or inhibits the tracing of witnesses still able to recollect specific events, or cases where witnesses, materials or certain lines of defense are no longer available, even in cases of relatively short delay. ‘Culpable delay’ on the part of the Requesting country, will be a relevant factor in ‘borderline cases’. Delay on the part of the applicant, i.e. by fleeing the country, concealing his whereabouts, or evading arrest, cannot – save in the most exceptional circumstances – count towards making his return ‘unjust’ or ‘oppressive’. ‘Oppression’ may arise where a defendant has lived openly and established family ties in the UK and to remove him would be oppressive. Oppression can also arise in circumstances where the inaction of the Requesting country, or its positive conduct, has caused in the defendant a legitimate sense of false security. Oppression can attach to persons for whom the defendant has responsibility. The onus is ultimately on the defendant to demonstrate, on the balance of probabilities, that it would be unjust or oppressive, because of the delay, having regard to all the circumstances, to return him. In seeking to discharge the onus on him, a defendant must produce cogent evidence of injustice or oppression. It is not sufficient to offer mere assertions or speculations” (David Young, Mark Summers and David Corker “Abuse of Process in Criminal Proceedings” 268-269 (Tottel Publishing, Third edition, 2009)).

 

From the general to the specific

 

121.       The weighing of the contrasting values in this case requires the attribution of a proper relative weight to each of the following considerations:

 

              At the level of the general public interest, there is a definitive interest in the extradition of the Appellant to the United States so that he can be brought to trial there. His extradition is intended to enforce criminal law upon a person who is accused of grave sexual offenses against a number of minor victims. There can be no doubt as to the extreme gravity of those offenses. In this case, extradition complies with the value of preserving the rule of law and aims to ensure that an offender will not benefit, if it is proved that he committed the offenses attributed to him.

 

              Furthermore, extradition, in this case, is particularly important to the cooperation between the governments of the United States and Israel in the extradition of offenders, based on the principle of reciprocity. The role and status of Israel as a member state in the family of nations are determined, inter alia, by the degree to which it is willing to cooperate in the extradition of offenders to the requesting countries and thereby to ensure their subjection to the full rigor of the law in the countries in which the offenses were committed. The importance of Israel’s response to a request for extradition by a requesting country extends beyond the field of extradition itself. It affects Israel’s status on the international level and its relations with other countries, with which it has engaged in binding agreements of any kind.

 

122.       Opposite this are the constitutional rights of the Appellant, as an individual, to a fair criminal trial, which are drawn from the basic concepts of law and society in Israel. While the Appellant left the United States in 1984 and has not returned since, nor has he made himself available to its adjudication and may be deemed to have evaded the law in the United States, since he left the United States he has been in Israel throughout the entire time; he did not flee or hide from the law enforcement authorities in Israel, he was constantly within their reach, and even within the reach of the American extradition authorities. He remained in Israel, living overtly, from 1984 to 2007, when the extradition proceeding was initiated against him. Up to that time, no less than 23 years passed, during which he has been free and at large, and no criminal proceedings whatsoever – including extradition proceedings – have been initiated against him within the borders of the State of Israel.

 

123.       The impediment against opening criminal proceedings in the Appellant’s case, throughout all those years, resulted solely and entirely from the definition of an “extraditable offense” in the Convention, which did not include the offenses in the indictment against the Appellant. Until the amendment of that definition in the Convention, the extradition could not be pursued.

 

124.       The authorities in both countries delayed for many years in eliminating the impediment to extradition, which was rooted in the wording of the Convention, although they were capable of eliminating it many years before the Amendment to the Convention was actually enacted. Some 23 years elapsed between the perpetration of the acts attributed to the Appellant and the Amendment to the Convention and the opening of the extradition proceeding. The extradition of a person from Israel to the requesting country, approximately 23 years after the perpetration of the offenses attributed to him within the territory of the requesting country, when he has been living in the requested country throughout that entire time and could have been reached with no difficulty by the authorities, and when the impediment to his extradition could have been removed within a reasonable period of time – all these amount to a grave substantive violation of the wanted person’s right to a fitting and proper criminal proceeding. Within the framework of the   “public policy” principle we do not deal with formal arguments regarding the lapsing of a limitation period; however, one possible criterion for the scope of the violation of the accused’s right to a proper trial is the statutory limitation period that applies in Israel to felonies, a period of 10 years. In this case, extradition is being sought after a period of time twice the length of the limitation period, plus an additional two years, which preceded the initiation of the extradition proceeding. In the overall balance of conflicting values and considerations, the prejudice to the fair and proper nature of the criminal proceeding against the wanted person prevails over the important public interest of international cooperation in the extradition of offenders, in which Israel is a partner by virtue of the extradition convention that it signed.

 

125.       According to the concepts and values of Israel’s legal system, waiting 23 years for an extradition proceeding from the time the alleged offenses were committed in the United States, under circumstances in which the wanted person did not evade the extradition proceedings in Israel, is tainted with a delay so great as to be intolerable, even in view of the complex public interest involved in implementing the extradition proceeding. Extraditing the Appellant after so many years of waiting is not only a substantive violation of his right to a fair criminal proceeding under criminal law. It represents an extreme deviation from the basic values and principles that underlie Israel’s legal system, and the entire system of criminal proceedings. In the overall balance, reasons of “public policy” and “abuse of process” justify refraining from extraditing the Appellant to the United States.

 

126.       Case law in Israel has recognized the factor of extreme delay in initiating extradition proceedings as giving rise to the “public policy” exception to extradition. A ruling rendered with regard to a requesting country that did not seek a person’s extradition for a period of 20 years held that its omission might be so exceptional and so extraordinary that granting its belated request might well constitute a violation of the basic sense of justice and of “public policy” in Israeli society (Bazaq Case, at 302; Sirkis Case, at 346-347; Efrat Case, paragraph 12; Feinberg Case, at 73). Under certain circumstances, the delay by the requested country may also give rise to protection against extradition – for example, in cases where a request for extradition, which was filed at a reasonable time, was neglected by the requested country for many years, due to an error (Feinberg Case, id.). As a general rule, a considerable delay in the initiation of criminal procedures has been recognized as a matter that may give rise to an argument of “abuse of process,” even when the procedure was begun within the statutory limitation period. Nakdimon discusses this point in his book:

 

.”.. In cases where too much time has elapsed between the perpetration of the alleged offense and the trial, this may harm the accused’s defense. Throughout such a long period of time, evidence may be lost. Witnesses who are capable of proving his innocence may leave Israel, to become ill or to die. The memory of the witnesses who are still available may be blurred. Under such circumstances, there is concern that the suspected individual will not be granted a fair criminal proceeding, if it is eventually decided to file an indictment against him. In fact, conducting the trial after such a long period of time may conflict substantively with the principles of justice and fairness in law, even if the statutory limitation period for the offense attributed to the accused has not yet lapsed. The doctrine of ‘abuse of process’ – whose purpose is to protect the individual from an indictment that was filed in substantive contravention of the principles of justice and fairness in law, or from a proceeding that is in contravention as stated – can prevent these grave outcomes” (Nakdimon, at 351; for a review of the law on this issue in Israel and throughout the world, see id., at 351-388).

 

              And if a violation of the right to a proper criminal trial may be caused by delay, even before the statutory limitation period has lapsed, how much more strongly will this apply when the limitation period set forth under law has lapsed, along with an additional period of the same length as the limitation period, and even longer.

 

127.       In our legal system, the argument of “abuse of process” has been recognized in the context of long years of delay in the initiation of a disciplinary procedure in a professional organization against a person who had been convicted of murder and had been sentenced to many years of imprisonment. Bar Association Appeal 2531/01, Hermon v. Tel Aviv District Committee of the Israel Bar Association, IsrSC 58 (4) 55, 78-79 (2004) included the following statement:

 

“One of the situations that may give rise to an argument of abuse of process for an accused is considerable delay in the filing of an indictment, even if the statutory limitation period has not lapsed, in cases where conducting a trial after a long period of time may, under the circumstances of the case, cause great harm to a person’s ability to defend himself, or may conflict profoundly with the duty of justice and fairness, which is required of a proper criminal proceeding... Recourse to this argument will be limited to extreme and exceptional cases only, and will not be available on an everyday basis. ... A proper balance will be required between the intensity of the harm to the accused as a result of the defective proceeding and the weight of the public interest in ensuring that the full rigor of the law is applied.”

 

128.       In this case, there was a delay of many long years – estimated at twenty-two years – prior to the initiation of the extradition proceeding against the Appellant. This delay could have been avoided through vigorous action on the part of the Convention member states, by amending the Convention many years before the actual Amendment was enacted. The extradition of the Appellant to the United States, under these circumstances, borders on indecency, and violates the accused’s substantive right to a fair criminal proceeding. In this exceptional and extraordinary case, the long period of time that elapsed before the start of the extradition proceedings, under circumstances in which the delay could have been avoided, calls for a negative decision on the request for extradition.

 

              For the reasons set forth above, the “public policy” exception as defined in the Law, is upheld in this case, and also prevents the Appellant’s extradition to the requesting country.

 

Conclusion

 

129.       This case is one of the more difficult cases in the field of extradition between countries. It reflects the acute tension that exists between the public interest in enforcing criminal law on offenders and rendering assistance to other countries in enforcing their own law vis-à-vis accused persons who committed offenses in their territory - and the enforcement of constitutional norms in Israel, which require protection of the rights of accused persons to a fair criminal proceeding under criminal law, including a fair extradition proceeding. The solution to the dilemma in question is not an easy one. Nonetheless, in this case, the delay that took place in the Appellant’s extradition proceedings – which is estimated at 23 years since perpetration of the offenses, and 22 years since the filing of the indictment, and which could have been avoided – imposes a legal and ethical barrier against carrying out the extradition. The violation of the right to a fair criminal proceeding is grave, egregious and exceptional in this case, in view of the passage of the years, and given the duration of the statutory limitation period in criminal cases, which is 10 years with regard to felonies in Israel. The lapsing of the limitation periods for the offenses under Israeli law, as well as the aspects of “public policy” and “abuse of process,” should prevent the extradition and justify the denial of the extradition request by the United States.

 

130.       The state’s obligation to its constitutional and democratic values is examined, at times, in hard cases in which the defense of human rights involves grave harm to other important public, national and social interests, including the defensible rights of other individuals. As an enlightened society, Israel has a legal system that safeguards human dignity and human rights even when the person in question has been accused and even convicted of the gravest of offenses – because, after all, human rights apply even to such a person:

 

“A civilized country is not merely judged by how it treats its faithful citizens, but also by how it treats the criminals living in it, including the most despicable criminals who wish to undermine its ethical foundations. In a proper constitutional system, the umbrella of human rights extends over every human being, including the criminal...” (HCJ 2245/06, Dovrin v. Prison Service, paragraph 23 (unpublished, June 13, 2006)).

 

131.       The legal and ethical basis of the extradition proceeding pursuant to Israel’s Extradition Law is not restricted to its nature as an important weapon in the war on international and intra-national crime. At the same time, it also represents a procedure that shows consideration for human rights, in both the requesting country and the requested country. The fear of frustration of the extradition proceeding, as such, cannot overshadow the need to examine its impact on human rights and on the basic values of the intra-national system adopted by the state of which extradition is requested; therein lies the moral and legal strength of the extradition process (Miscellaneous Criminal Applications 501/09, Attorney General v. Mayo, paragraph 13 of the ruling handed down by Justice Levy (unpublished, May 10, 2009)).

 

132.       In this case, the Appellant’s right to a fair criminal proceeding will be violated if the requested extradition proceeding is carried out. This is due to the lapsing of the limitation period under Israeli law, with regard to the offenses in the indictment that are attributed to him, the length of which is more than double the statutory period. Extradition under these circumstances also violates “public policy” and the principle of “abuse of process,” as these terms are defined in the concepts at the foundation of Israel’s legal system, because of the protracted waiting period and the fact that the competent authorities were in control of the actions required to eliminate the impediment to extradition.

 

              Therefore, the exceptions to extradition, pursuant to the Extradition Law, in regard to the lapsing of the limitation period and “public policy,” as these terms are used in the Israeli legal system, are upheld in this case.

 

133.       In light of all that set forth above, I will propose to my colleagues that we allow the appeal, that we overturn the judgment rendered by the District Court, and that we rule that the petition for the extradition of the Appellant to the United States be denied.

                                                            Justice

 

Justice E. Rubinstein:

 

Foreword

 

A.          After no small amount of hesitation, I have decided to concur with the conclusion reached by my colleague, Justice Procaccia, in her comprehensive and interesting opinion, even though, with regard to some of the reasoning, my opinion differs, and even though, in my opinion, there is an additional reason, on which I will elaborate. My hesitation stemmed from value-related considerations – from the fact that, apparently, the Appellant may not be brought to justice for the grave offenses with which the United States Government is seeking to charge him. Nonetheless, I will also state here that I am distressed by the fact that, at a certain stage, the United States Government, seeing that the matter of the extradition had gotten “stuck” – initially because of problems with the definitions  in the law, and subsequently because of the issue of the Convention, as described by my colleague and, before her, by the lower court – did not decide to request to try the Appellant in Israel, as the law in Israel enabled; and Israel could also have advised the United States government of that possibility. Indeed, there can be no doubt that the appropriate place – the natural place – to try the Appellant would have been the United States, where he allegedly committed the offenses, and where the complainants and the balance of the evidence are located. Of this, there can be no dispute; see our ruling in Criminal Appeal 4596/05, Rosenstein v. State of Israel, IsrSC 60 (3) 353; and if this was true with regard to that case – where the accused, resided in Israel and deployed the fortress of his criminality in the United States – it is true a fortiori in this case. But is there not a stage at which it becomes necessary to decide whether to allow the case to dissolve because of the problems connected with the extradition - or to try it in Israel? In my opinion, the answer to this is in the affirmative, and the solution of holding the trial here, even if it is quite a cumbersome one, was ostensibly attainable.

 

B.          The District Court, and now my colleague, have given extensive coverage to the factual and historical aspects of this exceptional case, which concerns bringing to trial, after a quarter of a century, of a person who fled the United States, undoubtedly because of the case in which he had become embroiled, and for which he should have been brought to justice – and who, since his arrival, has nonetheless resided in Israel under his own name, without going into hiding. I would like to note that, except for the amended legislation that was implemented in 1988, the principal obstacle to his extradition was the need for an amendment to the Convention of Extradition, which took place only in 2007 (for a description of some of the history in question, see my opinion in the Rosenstein Case, at 439-441).

 

C.          We are dealing with a constitutional right, as my colleague correctly described. Article 5 of Basic Law: Human Dignity and Liberty includes extradition, along with imprisonment and arrest, among the prohibitions that are designed to safeguard liberty. Procedural rights – and extradition is usually defined as such – and certainly constitutional procedural rights, bear considerable weight in proper law enforcement. The conduct of the authorities, whose strength and power are great, is subject to restraint, so that they will not transcend the boundaries of those rights; the Court must be convinced that the proceeding before it is a fair one. On the other hand, the interest in bringing [an accused] to trial is obvious, as otherwise “each of us would have swallowed up his neighbor alive” (Mishnah, Avot, 3:2).

 

D.          My opinion tends toward that of my colleague, Justice Procaccia, with regard to the limitation period, at least with regard to the first period – the years 1984-1994. Document A/1 and the appendices thereto indicate how the United States authorities essentially despaired of the case at the end of that period, and my colleague, in fact, mentioned (paragraph 7) the gradual closure of the files by the United States authorities between 1993 and 1995, in several stages. At the beginning of that process of closure, at the very least, and, in my opinion, perhaps years earlier, it should have been clear to all that the chances of extradition in the near future were slim. Accordingly, insofar as the United States authorities wished to try the Appellant, and in principle they certainly did wish to do so, it would have been appropriate to consider doing so in Israel. For the sake of integrity, I should note that I served as Attorney General between 1997 and 2003, but I have no recollection of the issue ever having been brought before me.

 

On bringing to trial in Israel as the default option

 

E.          I will add a few words about the possibility of trying [the Appellant] in Israel. I believe, as I will explain below, that, notwithstanding the “inability to act” that was raised by the District Court in the context of extradition, there was no “inability to act” in the local criminal context against the Appellant – i.e., even if extradition could not succeed, there was no barrier to trying the case in the State of Israel, as a residual default option. There can be no dispute, as my colleague stated in paragraph 88 [sic – actually paragraph 91], that “Throughout the entire effective period of the Extradition Law, the definition of ‘extraditable offenses’ thereunder included the offenses in the indictment against the Appellant,” and especially following the amendment to the Penal Law in 1988. While it is true that that amendment did not cure the difficulty involved in the issue of extradition, at the very least it reinforced the possibility of trying the case here. And after all, for more than two decades, since 1978, this was the only possibility where Israelis were involved who, pursuant to the amendment to the Extradition Law in 5738 [1978] and the addendum to Article 1A, could not be extradited, and both the countries in question were well aware of this. Under the circumstances, the Appellant’s status de facto, albeit not de jure, resembled that of Israelis – not because he eventually became a citizen, which would not have exempted him from extradition, but due to the impediment to extradition because of the Convention.

 

F.           Let us briefly elaborate. Article 15 of the Penal Law, 5737-1977, became even more important after the enactment of Article 1A of the Extradition Law (in the Offenses Committed Abroad (Amendment) Law, 5738-1978), under which a citizen may only be extradited for offenses that he committed before becoming a citizen. In the case before us, the Appellant was not a citizen of Israel before he committed the offenses attributed to him and, therefore, in principle, he would have been subject to extradition, and Article 1A would not have applied – but other legal issues stood in the way. Nonetheless, the enactment of Article 1A of the Extradition Law must be viewed concurrently with the enactment of Article 4A (A) of the Penal Code (Offenses Committed Abroad) (Consolidated Version), 5733-1973, which stated that: “The courts in Israel are competent to judge, according to Israeli law, an Israeli citizen or a resident of Israel who has committed an offense outside Israel which, had it been committed in Israel, would have been among the offenses set forth in the Addendum to the Extradition Law, 5714-1954...” Up to that point in time, the competence of Israeli courts with regard to extraterritorial offenses was much more limited (pursuant to Chapter B of the Penal Law, 5737-1977, in the version that prevailed at the time, which specifies individual offenses). Obviously, the purpose of enacting Article 4A (A) was to restrict the situation created by Article 1A of the Extradition Law – i.e., the transformation of Israel, in various cases, into a “refuge” for offenders.

 

G.          Amendment 39 to the Penal Law, 5754-1994, established - pursuant to  Article 4A (A) - the present version that is currently to be found in Section 15 (A) of the Penal Law, under which:

 

“The penal laws of Israel shall apply to a felony or misdemeanor committed abroad by a person who, at the time he committed the offense or thereafter, was a citizen of Israel or a resident of Israel.”

 

The explanatory note (Bills 5752, 121) stated that: “The proposed Article governs the personal - active applicability (emphasis in the original – E.R.)....” Its necessity was explained by the multiplicity of offenses that are committed by citizens and residents of the state outside its borders, and “the Israeli citizen is not deportable and is not extraditable” (according to the situation that prevailed following the 5738 [1978] amendment to the Extradition Law – E.R.) and, therefore, it is fitting and proper “for the state not to be transformed into a refuge for the offenders who are its citizens.”

 

H.          As stated, my colleague, Justice Procaccia, pointed out that the offenses which were defined in the Extradition Law as “extraditable offenses” also included the offenses in the indictment against the Appellant. It is sufficient for me to note that the Addendum to the Extradition Law included “any offense for which it was possible to impose the death penalty or imprisonment for a period greater than three years…,” with exceptions that are not relevant to the case before us.

 

I.           Indeed, the district court examined this point in great detail and – correctly – pointed out, in the words of President Barak, in Criminal Appeal 6182/98, Sheinbein v. Attorney General, IsrSC 53 (1) 624, 648, that “the ‘natural judge’ of the accused is the judge of the country in which he committed the offense.” The court concluded – and here, too, its words are apt – that Israel has no connection to the offenses, and emphasized the young age of the complainants (9-10 at the time the offenses were committed, and 10 and 12 when they gave their version to the United States investigative authorities). The court further pointed out that “even if, theoretically, it would have been possible to order that the Respondent be tried in Israel, doing so would have been pointless, because, from the practical, effective, point of view, the court here would not have had ‘the ability to convict the offender’” (per Justice Levy in the Rosenstein Case, at 409). In this last matter, with all due respect, my opinion differs, in view of the circumstances.

 

J.           The Appellant argued, in this matter, that pursuant to Article 15 (A) of the Penal Law, he could have been tried in Israel; in so stating, he relied, inter alia, on case law in instances where this was actually done (such as Criminal File (Tel Aviv) 360/96, State of Israel v. Bashan (unpublished) and the Sheinbein Case). It was argued that the evidence could have been brought to a trial that would have been held in Israel, including, as required, by means of a closed-circuit television system.

 

K.          On the other hand, in the state’s summarized argument it was argued that, inter alia, such trials in Israel had been held in only a few cases and that, in the present case, there were also difficulties due to the fact that the complainants were minors. It was further argued that even the 1988 amendment to the Penal Law would not have been of assistance in trying [the Appellant] here, because of the absence of overlapping between the offenses. The state’s supplementary pleadings emphasized that the “center of gravity” of the case was in the United States. It was further argued that trying the Appellant here would give him an unfair advantage over other wanted persons and would harm the victims, over and above the harm done by the actual offense.

 

L.          I have not overlooked the fact that the chronology appended by the United States Department of Justice to its letter A/1 dated December 11, 2007 stated that, in February 1987, the prosecuting attorney’s office of Kings County examined the possibility of adding charges against the Appellant “or considered approaching Israel, to request that he be tried in Israel,” but decided that, “from the legal standpoint, it could not support either of the alternatives.” Nonetheless, no reasoning for this was given and, therefore, it is not appropriate, on this basis, to reach conclusions with regard to the practical possibility, which, in my opinion, existed under the circumstances.

 

M.         To summarize up to this point: as stated, in practical terms, in view of the impossibility of extradition, the Appellant’s situation, to a great degree, resembled that of accused Israelis whose extradition was not enabled by the 5738 amendment to the Extradition Law. The obvious solution, in order to prevent Israel from being transformed into a  refuge for the offender, would have been – with all of the difficulty involved – to bring him to trial in Israel, as a residual solution (see Feller, Penal Laws (1984), Vol. I, 293.

 

N.          I will emphasize again: there can be no dispute that holding a trial in Israel for a person who allegedly committed offenses in a foreign country is not a desirable or preferable option – it involves various types of difficulties. (See the Rosenstein Case, at 433, in the opinion by Justice Levy; see also the statement by Justice Adiel in HCJ 3992/04, Maimon-Cohen v. Minister of Foreign Affairs, IsrSC 59 (1) 49, 60, 64, which emphasizes that bringing [a person] to trial within the framework of personal - active applicability is exceptional.)  Holding a trial in a location that is not the natural location of the case is a solution that should be adopted only in grave cases – and in the words of the Respondent in the supplementary pleadings (paragraph 39), “the main road is extradition.” Nonetheless, I cannot agree with the remainder of her argument, that holding a trial in Israel can be ordered only if “the ‘center of gravity’ of the case is in Israel, or when the state in which the offense was perpetrated does not request his extradition.” The interest in enforcement dictates the additional situation in which there is an impediment to extradition, but trial in Israel is possible. While the offenses in question were – prima facie – committed by a United States citizen while he was in the United States, against American victims; and bringing witnesses to Israel, and prosecutors along with them, is no simple matter, and is also expensive (although it would have been possible, in some of the matters, to make use of an judicial inquiry and, eventually, of videoconferencing). In my opinion in the Rosenstein Case (at 439), I pointed out that the solution of holding a trial in Israel “would have been possible in only some of the cases in which enforcement was required. True, in theory, it would have been possible to try in Israel persons who committed offenses in the United States and fled here – but in practice, however, the considerable expenses for that purpose and the difficulties encountered, including the inability to require witnesses to testify, did not enable the holding of such trials in each and every case” (see also Criminal Appeal 6914/04, Feinberg v. Attorney General, IsrSC 59 (6) 49, 72). Under no circumstances, then, was this a desirable or preferable option. Nonetheless, where there is an interest in bringing [the offender] to trial, in view of the severity of the offenses, and as the years went by with no elimination of the legal-procedural obstacles that precluded the extradition of the Appellant, the balancing point shifted, in my opinion, and it would have been appropriate to seriously consider, and even to conduct, the trial in Israel. The minors who accused him have grown up, but they have obviously not forgotten their complaint, and it would have been possible to bring them to testify, even if it involved an expense for the United States authorities and, to a certain degree, for the Israeli authorities as well, and I do not dismiss that expense lightly. Moreover, in this case, the question of requiring the witnesses to testify, which might have constituted an obstacle, does not, in fact, arise, because, an examination of the file, including requests by some of the victims in this matter (see paragraph 26 of the ruling by my colleague), it emerges that they – or at least some of them – are still interested in having him brought to trial. Therefore, as I see it, as the years went by and in view of the stagnation that occurred, there would have been a reason to choose this as the lesser of two evils; the procedurally exceptional nature of the case, in the absence of any other alternative, would have overcome the desire to hold the trial in the “natural” location. All of the pertinent statements in Justice Adiel’s review in the Maimon-Cohen Case, in the context of holding the trial here, are apt in that case – but what happens when there is no alternative? That is apparently true of the case before us.

 

O.          The ticking clock of the limitation period reminds us of the deceptive nature of passing time. Rabbi Moshe Haim Luzzatto, the 18th-century author of the book on ethics entitled Mesillat Yesharim [The Path of the Righteous] (Chapter G, in the explanation of the role of expeditiousness), writes with regard to religious precepts – and, by inference, this also applies to the precept of criminal enforcement and trial – that expeditiousness precedes action:

 

“So that the person does not miss fulfilling the precept, but rather, when its time comes or when he has the chance to do so or when it enters his mind, he should hasten and act quickly in order to seize it and accomplish it, and should not allow time to drag out in the meantime, because there is no danger as great as that danger, because, at any moment, something may arise which will impede the performance of the good deed.”

 

And subsequently:

 

“But rapidity after the deed is begun is also important; once he has grasped the precept, let him hasten to complete it – and let him not dismiss it from his mind, as one who wishes he could throw his burden down; rather, [let him be guided by] his fear that he will not have the privilege of completing it.”

 

And in this case – as time passed, the difficulties increased and a solution was required (and I will not speak of the difficulties involved in holding a trial, whether in the United States or here, after many years, and the difficulties of human memory, as they are well known to us all).

 

P.           With regard to the passage of years, I admit that I had a bit of difficulty due to the ruling in the Bazaq (Bouzaglo) Case (Criminal Appeal 3439/04, Bazaq (Bouzaglo) v. Attorney General, IsrSC 59 (4) 294), in which the Appellant was declared to be extraditable to France, 23 years after having committed the alleged offenses (murder and mayhem). The Appellant in that case was a priori a citizen of Israel; the obstacle to extradition was Israeli law (the 1978 amendment to the Extradition Law), until the law was amended in 1999 and the extradition of citizens was made possible, subject to the undertaking to return them to Israel to serve out their sentence in cases of imprisonment. However, when we examine both cases closely, we see that there is a difference between them. In the Bazaq (Bouzaglo) Case, the “fault” was entirely that of Israel – i.e., it lay in the legal situation that Israel created in the 1978 legislation. In the present case, both countries are to blame, as the principal impediment involved the need for an amendment to the Convention of Extradition, which was a reciprocal act. Furthermore, in the Bazaq (Bouzaglo) Case, the Appellant had already been convicted in France (albeit in absentia, after he fled the country, and there was an undertaking to reopen the trial following the extradition). Therefore, I do not believe that the two cases are equivalent.

 

Q.          In its Response, the state mentioned Miscellaneous Applications (Jerusalem) 5462/08, Attorney General v. Silverman. That matter has meanwhile been decided in the District Court, and in this Court as well (Criminal Appeal 3680/09, Silverman v. State of Israel (unpublished)), and the Appellant was declared to be extraditable. True, there is a background similarity between the two cases – sexual offenses committed against minors by a psychologist. The difference, however, lies, inter alia, in the fact that, in that case, the Appellant had already pleaded guilty in the United States and had been convicted and sentenced, but before the sentence could be reviewed following the ruling on appeal, he fled to Israel; in the case before us, no trial has yet taken place. But that is not the most important thing: the principal difference is that, even though, in that case, time passed between the Appellant’s escape to Israel (November 2000) and the filing of the extradition request (October 9, 2007), it is impossible to compare seven years to twenty-two years in the present case.

 

R.          In the hearing before us, counsel for the state pointed out that “we are not talking about the question of whether it is possible to conduct the procedure in Israel, or whether it is proper, but rather, about whether the case justifies being heard… in the requesting country.” However, she pointed out that, even according to the former law – the Extradition Law, in the version that was in force between 1978 and 1999 – the offenses attributed to the Appellant were extraditable offenses. In its response, the state also gave a negative answer to the question by the presiding judge, with regard to holding the trial in Israel, which counsel for the Appellant was prepared to allow, which is also regrettable

 

S.           To conclude: I believe that the option of holding a trial in Israel existed under the circumstances, even before the amendments to the Extradition Law and the Convention (amendments which, to a great degree, were intended to settle the question of extradition for Israeli citizens who were citizens at the time of perpetration of the offense). It is not by any means an enticing option; nonetheless, under the circumstances of a legal “bottleneck” that required the amendment of the Convention, and when the “bottleneck” had persisted for many years, the alternate route to the best solution for extradition should have been holding a trial here.

 

T.          In summary, I will state that I regret the fact that no indictment was filed against the Appellant in Israel. It would have been fitting and proper to do so, and to hold the trial on a date that was relatively close to the events, and thereby to do justice with the complainants by giving them their chance to testify. Anyone right-minded person will understand that the Appellant did not immigrate to Israel for Zionist or Jewish reasons, but rather, for fear of being brought to justice. By not bringing him to trial in Israel when the hope of extradition failed, the authorities played unintentionally into his hands. His non-extradition resulting from our decision is not a certificate of acquittal or of honesty; far from it. It results from a legal analysis of the relevant material, which culminated in a decision that was uncomfortable, but which was apparently correct from a legal standpoint.

 

Public policy?

 

U.          I will add that I have difficulty in concurring with the position expressed by my colleague, Justice Procaccia, with regard to public policy and equitable defense, to which she devoted an interesting and comprehensive survey. A great deal of ink, as we know, has already flowed on this issue (see e.g. Criminal Appeal 2521/03, Sirkis v. State of Israel, IsrSC 57 (6) 337, 345-348; (then) Justice M. Cheshin). The balance does not necessarily tend to assume violation of public policy through non-extradition, and I am close to saying that the scales are evenly balanced. President Shamgar stated, in the past, that “public policy reflects the basic foundations of the social order” (Civil Appeal 661/88, Haimov v. Hamid, IsrSC 44 (1) 75, 84). In this case, the basic foundations of the social order include, on the one hand, bringing a person to trial for grave sexual offenses, and, on the other, the proper functioning of the enforcement authorities in both countries. I am not certain that public policy – and, for that matter, equitable defense – indicate that a matter be decided one way or the other. Some will say that equitable defense is often appropriate when other considerations favor holding a trial, but when the conduct of the authorities acted against them. While this is true, I see no need to decide what will tip the balance in this case, and I would leave this issue for further study, in view of the outcome that we have reached on the basis of other contexts.

 

Conclusion

 

V.          As set forth above, I concur with the finding of my colleague, Justice Procaccia.

                                                            Justice

 

Justice M. Naor:

 

1.           I concur in the result of the opinion by my colleague, Justice A. Procaccia, on the basis of some of the reasons she cited, even though I do not support all of the reasoning on which she bases her conclusion. As my position is very close to that of my colleague, Justice E. Rubinstein, I shall be brief.

 

2.           I accept the position of my colleague, Justice A. Procaccia, that the starting date for the running of the limitation period, in the case before us was the date the indictment against the Appellant was filed in 1985 and that, since that time, no events have taken place that could toll the running of the limitation period. This means, as my colleague showed, that more than 10 years elapsed between the filing of the indictment and the date on which Article 94A of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereinafter: the Criminal Procedure Law) went into effect. That provision was enacted after the “first” limitation period had lapsed and, therefore, that provision has no implications for the case before us.

 

3.           The way to “overcome” the “first” limitation period (if there is any way at all) is, therefore, by applying the principle of “inability to act.” Although this is not a principle that appears in statute, I tend to think that it has its place in the judiciary toolbox in general, and also in the case that is now before us. Thus, if we change the facts slightly for the purposes of the discussion and assume that the Appellant had been, for a long period of time, in a country with which the United States does not have extradition agreements, and that the Appellant arrived in Israel 20 years later, it appears to me, prima facie, that, as a result of the principle of “inability to act,” it would have been possible to extradite him to the United States even after a period of time as long as that in the case before us.

 

4.           This, however, is not the situation in the case before us. In this case, there was no absolute inability to act. As the first period of 10 years drew to a close, and despite the discomfort involved, the right thing to do would have been to try the Appellant in Israel for the offenses of which he was accused. My colleague, Justice Rubinstein, pointed this out and I agree with his opinion. There is no absolute inability to act here and, accordingly, I have also reached the conclusion that the appeal should be allowed. Although it is not strictly necessary to do so, I shall briefly state that I do not believe that the decision to extradite the Appellant would constitute a violation of public policy; furthermore, in my opinion, it is also inappropriate to hold that there was abuse of process in the circumstances of the case. As set forth above, I believe it would have been right and just to bring the Appellant to trial, in order to adjudicate the question of his guilt or innocence.

 

5.           In conclusion, I concur that the appeal should be allowed.

 

                                                            Justice

 

The decision is therefore as set forth in the ruling by Justice Procaccia.

 

              Given this day, 28 Tevet 5770 (January 14, 2010).

 

 

 

Justice                      Justice                   Justice

_________________________

This copy is subject to editorial and textual changes. 08021440_R10.doc YT

Information Center Tel; 02-65936666, website www.court.gov.il

 

 

 

 

 

Appeal allowed.

23 Kislev 5767.

14 December 2006.

 

 

 

The Supreme Court sitting as the High Court of Justice

 

 

HCJ 4169/10

HCJ 4193/10

HCJ 4220/10

HCJ 4221/10

HCJ 4240/10

HCJ 4243/10

 

 

Before: The Honorable President D. Beinisch, The Honorable Justice
M. Naor, The Honorable Justice U. Vogelman

 

Petitioners in HCJ 4169/10: Yiftach Cohen; Omer Shatz, Itamar Mann

Respondents in HCJ 4169/10: The Minister of Defense; The Minister of the Interior; The Minister of Public Security

 

Petitioners in HCJ 4193/10: Adalah – The Legal Center for Arab Minority Rights in Israel; Public Committee Against Torture in Israel; Physicians for Human Rights

Respondents in HCJ 4193/10: The Minister of Defense; The Military Advocate General; The Israel Prison Service; The Israel Police; The Immigration Authority

 

Petitioners in HCJ 4220/10: Al Jazeera Satellite Network; Othman Al Bukhairi; Abas Naser; Muhammad Fal; Ali Sabri; Andrei Abu Khalil; Jamal Al Shial; Wasima Bin Salah

Respondents in HCJ 4220/10: The Israel Defense Forces; The Minister of Defense; The Minister of Public Security

 

Petitioner in HCJ 4221/10: Yekutiel Ben Yaakov

Respondents in HCJ 4221/10: The Israel Police; The Israel Prison Service; The Government of Israel; The Minister of Defense; The Prime Minister

 

Petitioner in HCJ 4240/10: Shurat Hadin – Israel Law Center

Respondents in HCJ 4240/10: The Attorney General; The Prime Minister; The Minister of Public Security; The Minister of the Interior; The Israel Police

 

Petitioners in HCJ 4243/10: 1. Almagor – Terror Victims Association; Y.S. – Navy commando (res.); D.B. – Navy commando (res.) and bereaved brother; Pniel Krichman; Yekira and Zecharia Komemi; Aviva and Rahamim Komemi; Tzila Rahamim; Moshe Keinan; Briana and Shmuel Hilberg

Respondents in HCJ 4243/10: The Prime Minister; The Minister of the Interior; The Attorney General; The Inspector General of the Israel Police

 

 

Petitions to grant an order nisi

 

Date of hearing:

20 Nisan 5770

(June 2, 2010)

 

For the petitioners in HCJ 4169/10: Itamar Mann; Yiftach Cohen; Omer Shatz

For the petitioners in HCJ 4193/10: Fatima El Ajou

For the petitioners in HCJ 4220/10: Zaki Kamal; Kamal Zaki Kamal

For the petitioner in HCJ 4421/10: Himself

For the petitioner in HCJ 4240/10: Nitsana Darshan Leitner

For the petitioners in HCJ 4243/10: Sharon Avni; Shira Greenberg

For the respondents: The State Attorney Moshe Lador; Osnat Mandel; Dina Zilber; Hila Groni

 

 

Judgment

 

 

President D. Beinisch:

 

 

1.          In view of the control of the Gaza Strip by the Hamas organization, Israel has taken various measures designed to prevent direct access to the Gaza Strip, among them a blockade of the Gaza Strip which, as declared by the State, is designed to prevent the infiltration of weapons and arms to the Hamas organization, which, for years, has carried out acts of shooting and terrorism at Israeli territory for the purpose of harming civilians.

 

2.          In recent weeks, announcements have been publicly made by various organizations, among them organizations that declared themselves to be acting for humanitarian purposes, regarding their intention to arrange a flotilla of ships which, they claimed, were designated to transfer foodstuffs and materials as humanitarian aid to the residents of the Gaza Strip. Israel, for its part, made efforts to prevent the flotilla from reaching the shores of Gaza and breaching the blockade in such manner. The State proposed to the organizers of the flotilla, among others, that the cargo – which was supposed to reach Gaza – be unloaded from the ships and transferred directly to Gaza via Israel. This proposal was rejected.

 

             In the early hours of May 31, a number of ships approached the shores of Israel to implement the flotilla's plan. As decided by the political echelon, the IDF prepared to take measures to prevent the entry of the ships into the Gaza Strip as stated. In the framework of an operation that was designed to stop the ships, soldiers landed on the deck of the ship Mavi Marmara, the largest ship in the flotilla. The soldiers met with a violent and severe response from the flotilla participants on the ship. The soldiers were attacked with knives, clubs and iron rods. Attempts were made to seize the soldiers’ personal weapons and they were violently attacked. One of the soldiers was even thrown off the deck of the ship. The soldiers were forced to respond to defend their lives and, unfortunately, the operation ended with unexpected loss of life - nine people were killed and both soldiers and flotilla participants were injured. The operation concluded with the ships being halted and their passengers removed and detained in Israel.

 

3.          That same morning, when the results of the operation became known, the petition in HCJ 4169/10 was filed with this court (hereinafter: the First Petition), in which four attorneys filed the petition as public petitioners. It should be noted that at the opening of the hearing before us, the petitioners gave notice of the request of attorney A. Feldman, who was among the petitioners, to strike his name from the petition. The petition ascribed grave and illegal acts to the State of Israel and the petitions sought a remedy of habeas corpus to free all the detainees. It is evident in the petition, which was hastily filed, that, notwithstanding the fact that the petitioners knew nothing about the actual events, they were quick to cast the gravest aspersions on the actions of the IDF forces, while using inappropriate language. Notwithstanding that stated, because the relief sought was the release of the detainees, the petition was not stricken in limine at that stage, and the State’s response was requested by the following day.

 

             During the course of that day and the following day, a number of additional petitions were filed with court. In HCJ
4193/10, which was filed on behalf of the Adalah organization and other human rights organizations, the petitioners requested information on the detainees and their whereabouts, as well as details on the injured and the dead. This petition was also filed as a public petition. Another petition (HCJ 4220/10) was filed by the Al Jazeera television network and in the name of journalists acting on its behalf who had been arrested on the ship. This petition requested the release of the network personnel who had participated in the flotilla. It should be noted that during the hearing that we held, it transpired that this petition was superfluous since the petitioners had already been released.

 

4.          On June 1, 2010, the government issued a statement that all the foreign flotilla participants would be released and returned to their countries. After this statement was issued, three additional petitions were filed with this court: HCJ 4221/10, which was filed on behalf of Mr. Yekutiel Ben Yaakov; HCJ 4240/10, which was filed by Shurat Hadin – Israel Law Center; and HJC 4243/10 filed by Almagor – Terror Victims Association. In these three petitions, the remedy sought was to bar the release of the foreign flotilla participants, with the main argument being that these were people who had committed an offense, who were required both for investigating the facts and the circumstances surrounding the incident and for a decision about arraignment for trial.

 

             In view of the remedy sought, which related to the question of the release of a large number of detainees, we conducted an urgent hearing and deliberated all the petitions together before the panel at that session, and within two days of the filing of the First Petition.

 

5.          Before the hearing, the State submitted a written response in which it protested the description of the events in the First Petition and pointed out the distortion of the facts therein. In essence, the State addressed the legality of the blockade and referred to an alternative remedy set forth in the relevant provisions of the Entry into Israel Law, 5712-1952, with regard to the foreign participants in the flotilla and the relevant provisions of the law pertaining to the criminal proceedings of investigation and detention with regard to the Israeli suspects who participated in the event. During the day, proximate to the time of hearing the petitions, the State completed its statement and submitted a decision formulated by the attorney general, which stated that on the day of the event, May 31, 2010, the attorney general ordered the opening of an investigation on suspicion of offenses committed on the deck of the ship Mavi Marmara, including the offense of the grave attack on IDF soldiers, disturbing the peace, endangering the lives of soldiers, seizing weapons and so forth. The attorney general further stated that the next day, the ministerial committee on national security matters convened and conducted a long and exhaustive discussion of the security, political, legal and other aspects of the affair. At the end of the discussion, the senior political echelon recommended “to enable the immediate deportation of all the foreigners who had arrived on the flotilla, who were suspected of committing criminal offenses. This is recommended for clear political reasons pertaining to foreign relations and the security of the State of Israel.” In his decision, the attorney general noted that he had discussed the matter with the state attorney and other senior officials at the Ministry of Justice and other government ministries, at the end of which he decided, as stated, to allow the immediate deportation of all the foreigners from Israel.

 

6.          During the hearing before us, State Attorney Moshe Lador, appeared together with senior attorneys. It should be noted that due to the nature of the proceedings which we conducted, we sought not to address the claims pertaining to the legality of the blockade, nor with the factual events during that grave incident, the full details of which had not been presented to us. Claims pertaining to the detention of Israelis suspected of committing offenses while participating in the flotilla were also not adjudicated before us, as they should be argued in individual hearings on the criminal arrest proceedings before the competent courts. The hearing focused on the urgent remedies sought which pertain to holding the foreign detainees. The state attorney stated that all the foreigners who wished to do so could be released from detention and, in effect, those who had not yet left the country were on their way to the airport. The wounded whose medical condition allowed for it, were also removed to their countries of origin. Apparently, two of the wounded remained in the hospital because their condition did not enable them to be flown back to their country. The state attorney further stated that the names of all the wounded had been submitted to the relevant consulates and, with regard to those who came from countries that do not have diplomatic relations with Israel, the details were provided to the Red Cross. It should be noted that the State did not see fit to acquiesce to the request to provide details in this matter to counsel for the Adalah organization, as the details had been provided to the relevant entities. However, the possibility arose that if a specific, substantive application were to be made to obtain details regarding one of the casualties or the wounded, the State would examine the possibility of providing counsel for the Adalah organization with the requested details. It further transpired that the remaining details requested by the Adalah organization regarding the place in which the detainees were being held were resolved. The Adalah organization’s counsel also made claims with regard to the detainees' ability to meet with attorneys. During the hearing it was made clear that there had been no intention to prevent such a meeting, and many detainees had actually already met with attorneys. Due to the need to release hundreds of people quickly, not all the detainees may have had the opportunity to meet with an attorney.

 

             The position of the attorney general to release all the foreign participants meant that the main remedy sought in the First Petition was already granted. In the course of the arguments, in view of the response of the state attorney and the comments of the court, the petitioners retracted the style of the scathing verbal attack that they had employed in the petition.

 

7.          As stated, three of the petitions were filed against the attorney general’s decision to release the foreign detainees. Each one of the petitioners argued before us at length about the importance of keeping the detainees in Israel for the purpose of conducting an exhaustive investigation regarding the grave events that occurred on the ship, and regarding the need to exercise the full rigor of the law or, at least, to investigate details which, they claim, would constitute defense arguments for the IDF soldiers.

 

             We did not find any ground for intervention in the decision of the attorney general. The decision to release the detainees is in the realm of the attorney general’s discretion. In a long series of judgments, this Court has ruled that the scope of intervention in the attorney general’s discretion in decisions pertaining to investigation or prosecution is limited to exceptional and unusual instances. Due to the unusual nature of the event and the circumstances entailed therein which, aside from the criminal aspects, also encompass political aspects pertaining to the State’s foreign relations, the attorney general was entitled to consider these aspects. The developments that have ensued in the international arena indicate that a particular political sensitivity exists in everything pertaining to the handling of the matter by the enforcement entities. The attorney general noted that he consulted with all the relevant government entities and after taking into account the fact that nine flotilla participants were killed and several dozen were wounded, he reached the conclusion that the public, political and security interests outweigh the interests of criminal enforcement. We did not find in this decision, which was reasoned as stated, and in the considerations underlying it, any cause for intervention.

 

             Wherefore, after we were convinced that the main remedies sought in some of the petitions were superfluous, and in the absence of cause to intervene in the decision of the attorney general, we have decided to deny the petitions.

 

             Given this day, 20 Sivan 5770 (June 2, 2010).

 

 

The President          Justice                 Justice

_________________________

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To this I would add that, according to the evidence before us, the said defense is not available to the petitioners. Indeed, it has been held that this defense applied in a similar matter, in which the authorities breached a promise to give immunity to rioters who took over the Parliament of Trinidad and Tobago. See Phillip supra. [24], at 108. Nevertheless, the case here does not appear to involve the sort of behavior by the army authorities that would make this defense available to the petitioners, under the standard of Yeffet supra. [6]. Indeed, the evidence does not justify a holding that the authorities’ chosen course of action, including the prosecution, was, under the circumstances, illegitimate, so as to taint the criminal proceedings taken against the petitioners and have them deemed a wrongful use of legal proceedings. See Bennet v. Horseferry Road Magistrates’ Court (1993) 3 All. E.R. 138, 151 (H.L.) [25]. Moreover, no evidence points to the fact the petitioners can not receive a fair trial. See Letif supra. [22], at 361.

 

19. The petitions are rejected. The orders nisi and interim orders issued in connection with these petitions are cancelled. Under the circumstances, an award for costs shall not be made.   In order to remove any trace of doubt, we emphasize that this ruling in no way serves to weaken the parties’ arguments made in the criminal proceedings on the matter, before the military tribunal.

 

Justice D. Dorner

 

I agree.

 

Justice Y. Turkel

 

It is with a heavy heart that I join the opinion of my esteemed colleague, Justice Or. 

 

The requirements set out by our Rabbis regarding conducting negotiations in good faith and concerning ’s the keeping of one's word, see Midrash Mechilta, Beshalach, 15 [35]; Babylonian Talmud, Tractate Shabbat 31a [36]; Babylonian Talmud, Tractate Baba Metzia 44a; 48b [37], were imposed on the individual more as a matter of morals and ethics, rather than as legal obligations. To my mind, these requirements are just as valid today as they were in the past, and apply not only to relationships between individuals but to the authorities and to government officials conducting negotiations with the public. Their foundation is to be found in the province of morals and ethics, in addition to considerations of efficiency. I shall refrain from making a pronouncement on the legal basis of such duties at this juncture, for such a discussion is unnecessary for our purposes.

 

I will not deny that given the significant weight, which, in my view, attaches to these considerations, I initially leaned towards a different decision. Likewise, I considered whether the authorities’ decision in this instance truly satisfied the test of proportionality. The petitioners’ cries may have reached the heavens, but they nonetheless failed to reach the prison wardens. Such cries should have been heard and should perhaps have been taken into account in deciding whether to press charges.

 

One way or another, I can only push away my doubts and accept my colleague’s conclusion that there is no room for the Court’s interference in the authorities’ decision not to respect the provisions of section 5 of the agreement. Indeed, while the authorities may have very well reached a different decision in this matter, this, in and of itself, does not justify our intervention here. 

 

Roman law recognized a type of decision known as “Non liquet”. This referred to a judge’s announcing his inability to rule one way or another. See Dr. Alkushi A Wealth of Latin Terms and Expressions [34], at 320 and legal dictionaries. In my view, this term also characterizes our decision to reject this petition. It is best left to stand as such, somewhat nebulous and equivocal, ending in both an exclamation and a question mark.

 

 

Decided as per the opinion of Justice Or.

24 November 1997

Crim. A. 242/63

 

           

MICHAEL KARITI

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal

[June 30. 1964]

Before Berinson J., Manny J., Halevi J.

 

 

 

Incorrect returns of capital and income by reason of omissions - Duplication alternative counts - Amendment of indictment - Implied admission of offence arising out of amendment - Evidence Ordinance, 1924, sec. 9.

 

 

                The appellant was charged on five counts of incorrect capital and income returns over some three years. One count was struck out by mutual consent. He was convicted by the Magistrate's Court on two counts and acquitted of the remaining two. On appeal to the District Court he was acquitted of a further count. Affirmation of his conviction on the remaining count was vaguely attributed to one of two years or both of them and the charge was amended accordingly and in the result the struck out count was revived. The appellant pleaded on appeal that in convicting him the District Court exceeded its powers and that capital and income returns were not admissible in evidence under the law. not having been voluntarily made.

 

                Held.  In the circumstances, the District Court was not justified in amending the indictment without giving the accused the opportunity to be heard. A count which has been struck out by consent before trial cannot in any event be revived. Furthermore, conviction on separate alternative charges under one count cannot stand because of duplication and uncertainty since the accused cannot thereafter plead, if necessary, autrefois convict or acquit.

 

                The requirement to make capital and income returns and other relevant information in accordance with the law does not render an admission involuntary. The confession rule must be distinguished from the privilege against self-incrimination. The test of the former goes to the means in which it was obtained. The latter rests in the "inhumanity" of placing a person in the legal dilemma of being criminated for an offence already committed or perpetrating another offence by refusing.

           

Israel cases referred to:

 

(1)        Cr.A. 51/61-Attorney-General v Aharon Steinberg (1961) 15 P.D.1602.

(2)        Cr.A. 114/52-Ezra Habara v Shoshanah Yeroham (1953) 7 P.D.

(3)   Cr.A. 20-21/49-A1i Mahmad Hussein Abdul Ha'adi and others v Attorney-General (1950) 3 P.D. 13.

(4)        Cr.A. 307/60-Jarboni and others v Attorney-General (1963) 17 P.D. 1541.

(5)        Tel Aviv S.C.C. 3/54-Attorney-General v Victor Mizan (1956) 11 P.M. 140.

 

English cases referred to:

 

(6)        R. v Surrey Justices. Ex parte Witherick (1932) 1 K.B. 450.

(7)        R. v Molloy (1921) 2 K.B. 364.

(8)        R. v Wilmot (1933) 24 Cr.App. R. 63.

(9)        R. v Scott (1856) 7 Cox C.C. 164.

(10)      R. v Colpus & Boorman (1917) 1 K.B. 574.

(11)      Re Worral Ex parte Cossens (1820) Buck. 531.

(12)      R. v Slogget (1856) 7 Cox C.C. 139.

(13)      R. v Noel (1914) 3 K.B. 848.

(14)      Comm. Customs & Excise v Ingram (1948) 1 All E.R. 927.

 

Arnerican cases referred to:

(15)      State v Reinhart (1895) cited in Wigmore on Evidence (3rd ed) Vol 3, p.239.

(16)      State v Novak (1899), ibid., p.240.

(17)      State v Porter (1897), ibid. p.245.

(18)      State v Guie 186 Pac 329 (1919), ibid., p.245

(19)      Wilson v U.S. 221 U.S. 365 (1911).

(20)      Davis v U.S. 328 U.S. 582 (1946).

(21)      Shapiro v U.S. 335 U.S. 35 (1948).

(22)      pano v New York 360 U.S. 315 (1959).

(23)      Blackburn v Alabama 361 U.S. 199 (1960).

(24)      Nicola v U.S. 72 F. (2d) 780 (1934).

(25)      Hanson v U.S. 186 F. (2d) 61 (1950).

 

A.S. Shimron for the appellant.

A. Kamar, Deputy State Attorney, for the respondent.

 

BERINSON J.            The appellant was tried by the Haifa Magistrate's Court on the following five counts under sec.77 of the Income Tax Ordinance, 1947:

(1) giving incorrect information on a return of capital submitted as at 31 March 1957 in that he included an excess of 620 sovereigns;

 (2) giving incorrect information in a return of capital submitted as at 31 March 1959 in that he did not include a sum of IL. 12,500:

(3) preparation of an incorrect return for the 1957 tax year in that he declared an income of IL.3,600, and thereafter reached agreement with the Assessing Officer whereunder his income for that tax year was put at IL.5,000 whereas his true income in that tax year was IL.69,490, thus omitting without reasonable explanation from the said return income amounting to IL.65,880;

(4) a similar offence of omitting the same income of IL.65,880 from the return for the 1958 tax year;

(5) an alternative offence of omitting the same income of 1L.65,880 from the returns for the 1957 and 1958 tax years.

 

            At the outset counsel for the appellant pleaded that the fifth count suffered from being duplicatory and further did not disclose an offence, and with the consent of the representative of the Attorney-General, it was struck out.

           

            In the Magistrate's Court the appellant was acquitted of the second and fourth counts but was convicted of the first and third counts for omitting an amount of IL.35,800. He appealed against the conviction but the Attorney-General did not appeal against the acquittal. The District Court acquitted the appellant on the first count as well but found him guilty of the third count, amending the conviction as follows: "Since we are unable to determine whether this amount (of IL.35,800) was omitted from the return for the 1957 tax year or from that for the 1958 tax year, the conviction will stand for omitting this amount from the return for the 1957 tax year or from that for the 1958 tax year or from both together." In so convicting him, the Court treated the conviction as more in accord with the fifth count which had been abandoned as above but felt justified in doing what it did by virtue of its powers under sec. 12 (5) (b) of the Magistrate's Court Jurisdiction Ordinance (1947) to amend a count in order to give such judgment as, in its opinion, ought to have been given by the Magistrate's Court. In so doing the District Court relied on the judgment of this Court in Attorney-General v Steinberg (1), stating that in any event if the appellant did not omit chargeable income from the return for 1957, he omitted it for 1958, or omitted part in each year.

           

            It seems to us that the path which the District Court followed is not open to us. Appellant's counsel rightly urged that by so convicting the District Court went beyond its powers. Under the said section the power of a District Court as an appellate court is to give such judgment as should in its opinion have been given by the court below on the charge of the evidence adduced. Might the Magistrate's Court, at the end of the hearing, have reverted to the fifth count and convicted for it, after having been included in the charge sheet and struck out with the consent of the prosecution in view of the opposition of defendent's counsel? It seems that it could not, precisely because it was struck out. And if the Magistrate's Court might not so revert, then also the District Court could not.

 

            Mr. Shimron frankly admitted that the appellant was not substantively put at a disadvantage by the District Court's amendment of the charge, and had he been given the opportunity to plead against the charge in the manner which the District Court had in its judgment, he would not have advanced any new argument against the charge itself nor put in any evidence further to that before the court. Yet, he argues, had he had the opportunity to plead against the charge in its new form he would have shown that the District Court was not empowered to convict as it did - at least, he would have shown that the conviction certainly suffered from being duplicatory.

           

            We agree with Mr. Shimron that in the circumstances of the case, as described above, it was not proper to vary the counts without giving the Defendant good opportunity to plead to the variation, and had that been done, he would have had something to say to prevent such conviction as the District Court decided upon. Indeed, the fifth count was not struck out in vain by the Magistrate's Court without opposition from the prosecution. It is clear to us that in its original form it did not disclose any offence since the duty is to make a return of income for each tax year separately (sec. 43A of the Income Tax Ordinance) and no duty exists to submit a return for two years together. The offence can only be the making of an incorrect return for one particular year. Neither can the conviction on the amended count stand, first, because of the above point that the Magistrate's court could not revive - even if in an amended form - the count struck out by it at the outset and that therefore the District Court was debarred from doing so; and secondly - and this is the main reason - because the new count, as phrased by the District Court, contains in fact a number of separate alternative offences, the omission of the amount of IL 35,800 from the return for 1957, or the omission of that amount from the return for 1958, or the omission of an unaxetained part of that amount from the return for 1957 and omission of the remainder from the return of 1958.

 

            Such a conviction is defective both for duplication and uncertainty. "1t is an elementary principle that an information must not charge offences in the alternative, since the defendant cannot then know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading autrefois convict:" R. v Surrey Justices (6) at 452; see also R. v Molloy (7) and R. v Wilmot (8).

 

            According to Attorney-General v Steinberg different offences can be contained in one indictment in the alternative, provided that each is put as a separate count. lf the prosecution succeeds in proving that the Defendant has prima facie committed one of the alternative offences, the Defendant must answer to the charge. Should he not do so or not succeed in exculpating himself from all the alternative offences, he can be convicted of one of them but not on the basis of the very same facts of all of them or in a vague manner of one or other offence without choosing one of them.

           

            For this reason, we must go back to the third original count and inquire whether he could be convicted of that or alternatively of the fourth count. These two counts of which the defendant was charged in the Magistrate's Court are in their nature alternative. That they are so is not expressly stated in the indictment but that is unnecessary where they are clearly so. It is indeed manifestly clear in the present case: the appellant is alleged to have omitted an amount of IL.65,880 once only in one of two years but the prosecution did not know precisely in which of them. He was therefore charged with the omission of the entire amount alternatively in the one or the other year. Accordingly the Magistrate's Court could, at its election, have convicted him of one of these two alternative charges upon finding that all or part of the amount was omitted from the return for one of the two years. Since it found that an amount of IL.35,800 was omitted in the 1957 tax year, he was convicted of the third count and exonerated of the fourth count. There was no appeal by the prosecution against the latter, but according to Habara v Yeroham (2) that does not deprive the appellate court of the power to convict for the offence for which he should initially have been convicted on the evidence adduced in the case. Notwithstanding, therefore, the acquittal by the Magistrate's Court on the fourth count and the fact that the Attorney-General entered no appeal, the District Court could have convicted the appellant of one of the two counts, depending on the evidence before the Magistrate's Court. This course which was open to the District Court is obviously open to us as well, and we shall later consider the possibility and need to proceed accordingly.

 

            Before doing so, we must deal with two other arguments by Mr. Shimron, each of which, if accepted, may relieve us from the necessity of dealing with the details of the omission alleged against the appellant.

           

            The first argument is that in the course of other proceedings between the parties regarding the assessment for tax year 1957 ... counsel for the respondent pleaded an income of IL. 22,000 and the State is therefore bound by that. The income was at first fixed by agreement for each of the years 1952 to 1957 inclusive. Since, however, the appellant's declarations of capital disclosed unexplained differences, the Income Tax Commissioner reopened the assessments and increased them and also determined the appropriate assessments for 1958 and 1959. That was, done by distributing the capital differences among all these years; for 1957 the new assessment was put at IL. 22,000 as against the appellant's declared income of IL. 3,600 and the income earlier agreed of IL. 8,000. The argument was that this determination by the Commissioner, approved by court on appeal against the assessment, is by way of an admission by the State of the correct income of the appellant in that year and the State now cannot argue otherwise here.

           

            I must say that I have not quite understood the argument. What admission is there which prevents the State from arguing otherwise or in contradiction? The Commissioner estimated the appellant's income on the basis of the disclosed capital differences and made an arbitrary division of these in respect of those years according to his best judgment. This is not to be regarded as a determination of the true income of the appellant in those years, which bars the State from showing the facts as they really were. The determination is no more than was earlier agreed by the Assessing Officer to put the appellant's income for 1957 at only IL. 8,000. Mr. Shimron himself agrees that what occurred does not create an estoppel against the State and is not to treated as a final determination. If that is so. the most he can say is that the Magistrate's Court should have weighed the State's submissions in this case in the light of the fact that they vary from those made in that case. The evaluation of the evidence is primarily the concern of the court hearing the matter. In the present instance the Magistrate's Court had to decide which was preferable, the vague assessment of the Assessing Officer or the result emerging from all the evidence put to it. It preferred the latter and no one complained about that.

 

            Incidentally, had we said that the Commissioner's assessment was determinative, then at least this "admission" upon which the appellant relies is calculated to convict him at once for concealing an amount of IL. 18,400, the difference between the assessment of IL. 22,000 and a declared income of IL. 3,600, and the plea that the appellant had not committed any offence would fall. I am certain that had the prosecution attempted to base conviction on this ground, Mr. Shimron would be the first to protest and rightly.

           

            Mr. Shimron's second submission concerns two declarations of capital of March 31, 1957, and March 31, 1959, which the appellant filed with the Assessing Officer on his request under sec 45(1) of the Income Tax Ordinance, and which served as a basis for calculating the amount omitted from the annual returns of income. Mr. Shimron argued that the declarations of capital presented in court are not admissible as evidence. They form confessions in the sense of sec. 9 of the Evidence Ordinance since they contain statements from which the likely conclusion is that a criminal offence has been committed, and it was given to the Assessing Officer, a person in authority. (See sec. 3 of the Income Ordinance which defines an Assessing Officer as an officer appointed to implement the Ordinance, possessing wide powers, including those under sec. 45). The declarations, being confessions which the appellant was compelled to make under the law, lacked "free and voluntary" foundation and are therefore inadmissible. Mr. Shimron argued further that the Income Tax Ordinance did not permit the use of information delivered under sec. 45 as evidence against the person delivering it, even if it is liable to incriminate him and in the absence of such a provision it is not permissible as evidence. Initially, the submission appeared very peculiar to me, its reasonableness somehow worried me, and as I continued to think about it and examine the sources I indeed grew conscious that it was completely baseless.

 

            The first question is whether the declarations of capital, each on its own and together, fall within "confessions" within the meaning of sec. 9 of the Evidence Ordinance. Archbold's Criminal Pleading (34th ed.) p. 415, para 1104, states that "an extra-judicial confession is made where the prisoner makes an admission ... of his guilt or of any fact which may tend to the proof of it."

           

            Mr. Shimron relies on this definition. He agrees that although the declarations as such do not confess any guilt, they contain, in his view, an admission of facts which tend to guilt. Mr. Kamar on the other hand argues that according to its terms sec. 9 of the Evidence Ordinance is limited to "confessions by the accused that he has commited an offence. It therefore applies only to actual confessions of an offence and not to admissions of facts which in themselves do not point to guilt. In his opinion, the terms of see. 9 are more in accord with the English rule which we have so far followed, and he suggests that we replace the one with the other. The rule in the U.S., as given by Wigmore on Evidence (Third ed.), vol. 3, para. 821, pp. 238 ff, is more stringent than the English rule.

           

"A confession is an acknowledgement in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it."

 

            It clearly follows from this definition that an exculpatory statement by the accused or his acknowledgment of subordinate facts colourless with reference to actual guilt or in other words not essential to the alleged offence is not a confession (ibid. pp. 239 & 243). The many precedents cited justify the above summary of the rule.

           

"A 'confession' in a legal sense is restricted to an acknowledgement of guilt made by person after an offence has been committed, and does not apply to a mere statement or declaration of an independent fact from which such guilt may be inferred." (State v Reinhart (15)).

 

"A confession is a voluntary admission or declaration by a person of his agency or participation in a crime... To make an admission or declaration a confession, it must in some way be an acknowledgement of guilt." (State v Novak (16)).

 

            "We take it that the admission of a fact, or of a bundle of facts, from which guilt is directly deducible, or which within and of themselves impart guilt, may be denominated a confession, but not so with the admission of a particular act or acts or circumstances which may or may not involve guilt, and which is dependent for such result upon other facts or circumstances to be established.:' (State v Porter (17)).

 

And finally, a quotation which to some extent accords with the circumstances of the present case:

 

"A confession is a direct acknowledgement of guilt on the part of the accused, and, by the very force of the definition, excludes an admission, which, of itself, as applied in criminal law, is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt, but of itself is insufficient to authorize a conviction." (State v Guie (18)).

 

It is true that see. 9 of the Evidence Ordinance speaks of "confessions of an offence" but, as Mr. Kamar admits, the courts in this country normally regard every admission of a fact indicative of guilt or tending to prove guilt as a confession, and I do not see any reason for departing from this course, which is at one with English practice. A local precedent may be found in the District Court judgment in Mizan (5), from which this Court did not demur on appeal.

 

            The next question is whether the two declarations of capital meet the above tests of a confession. The first declaration, relating to Mar. 31, 1957, was filed on October 8, 1957. At that date, obviously, no income return had been submitted for the 1957 tax year; that was only done on May 18, 1958. It is therefore clear that on the date the declaration of capital was filed no offence had as yet occurred and that the declaration cannot be "a confession by the accused that he has committed an offence" (see. 9). On the other hand the second declaration, relating to March 31, 1959, was filed on September 9, 1959. At that date, the Assessing Officer already had the two income returns for 1957 and 1958 (the second was filed on June 18, 1959). Accordingly when the second declaration was filed, the offence of delivering an inaccurate return for 1957 had already been committed, if it was inaccurate. In this regard alone must the second declaration of capital be regarded as a confession, if (together with other documents) tending to the appellant's guilt.

 

            Mr. Kamar goes on to urge that this declaration of capital does not have to be tested by "voluntariness" since it was not filed at the request of the Assessing Officer but by the appellant on his own initiative, not as a person suspected of having committed an offence but apparently in connection with objections to the assessments for 1957 and 1958. This is not quite correct. The appellant was invited to appear at a hearing before the Assessing Officer and was asked to bring along documents in his possession on which his objections to the assessments were based. Attached to the invitation was a form of declaration of capital for March 31, 1959. That was clear notice that this declaration was among the documents he was to bring with him. The appellant in fact so understood it and did what was required. Nor can it be said that at the time the appellant was not suspected of commission of an offence. Already on January 23, 1959, his bank safe was searched and gold coins were found there which he had not declared; the appellant was suspected because of that by the income tax authorities.

           

            We now reach the main submission of Mr. Shimron, that the declarations of capital were not made voluntarily by the appellant and are therefore inadmissible in evidence against him. This submission is based on the fact that the appellant was compelled to make the declarations under statutory dictate, since he was threatened by criminal sanctions under sec. 76 of the Ordinance if he did not comply with the request of the Assessing Officer.

           

            There are a number of answers to this submission.

           

(1) When is an admission treated as a confession not voluntarily made? The test, it was said in Ha'adi (3), is a single one. "Where the admission was made by the defendant voluntarily, without compulsion, temptation or persuasion, it is valid, where it was not so made, it is invalid." To use the usual formula, a confession obtained under threats or improper assurances is invalid:

 

            The Assessing Officer's request under sec. 45 of the Income Tax Ordinance to make a declaration of capital or to deliver any other information a person has in connection with his income is not unlawful compulsion or temptation or persuasion that can invalidate the declaration made or information delivered in response to the request.

           

            In dealing with extra-judicial admissions Wigmore on Evidence (3rd ed.) vol. 4, para. 1050, pp. 7-8, says that "admissions made under a duty imposed by law stand on a special footing. It would seem that nothing in the principles governing Admissions excludes them." As exception to the rule he mentions inter alia the following two instances in which an admission may be invalidated. The first is when the statute imposing the duty requires a report to a public official but makes its contents confidential and expressly renders it as privilege a communication; even if not express the privilege may be implied where policy obviously requires it. Secondly, in criminal cases, an admission of this kind might receive protection from the privilege against self-incrimination.

           

            In our opinion, neither of the said instances is applicable here. Not only does the Income Tax Ordinance not extend any privilege to information delivered in response to a notice under sec. 45 but it makes a failure to respond or the delivery of wrong information a criminal offence (secs. 75 & 76). All this shows that the legislative intent was that a person requested to deliver information which assists in determining his true income must produce that information, accurate and true. It cannot be that information is privileged from an application to court against the person delivering it. If it were so, that would enable or facilitate the delivery of inaccurate information without fear and the purpose of the law set at naught. In R. v Scott (17), dealing with the examination of a bankrupt under a section of the Bankruptcy Act which bound him to answer questions touching his business affairs etc., it was decided that his answers even though incriminatory, were good evidence in a criminal charge against him. Lord Campbell said,

           

''lf the party has been unlawfully compelled to answer the question, he shall be protected against any prejudice from the answer thus illegally extorted; but a similar protection cannot be demanded where the question was lawful and the party examined was bound by law to answer it."

 

            And then,

 

"When the Legislature compels parties to give evidence accusing themselves, and means to protect them from the consequences of giving such evidence, the course of legislation has been to do so by express enactment... We therefore think we are bound to suppose that in this instance, in which no such protection is provided, it was the intention of the Legislature to compel the bankrupt to answer interrogatories respecting his dealings and conduct as a trader, although he might thereby accuse himself and to permit his answers to be used against him for criminal as well as civil purposes" (at pp. 170-71).

 

Likewise, Alderson B put it succinctly:

 

"My judgment proceeds upon the ground that if you make a thing lawful to be done, it is lawful in all its consequences; and one of its consequences is that what may be stated by a person in a lawful examination, may be received as evidence against him"(at p.175).

 

(2)        The principle that invalidates incriminatory answers not given voluntarily, does not operate here for another reason as well. It is a leading rule that an official document kept by or found in the possession of a public official must be accessible to the representatives of the public and generally to the entire public, and it can serve as prima facie evidence of the truth of its contents. And its presentation in evidence, even if it tends to incriminate the public official or any other person, is not to be barred unless the law otherwise prescribes or if for some other lawful reason that official or other person is protected against disclosure of the document and its presentation in court. The reason is that the State requires it to be kept and does not ask of the official to commit an offence. "If in the course of committing the crime he makes entries, the criminality of the entries exists by his own choice and election, not by compulsion of law" (Wigmore on Evidence (3rd ed.) para. 1259c, p. 349). 349).

 

            This reason is equally operative with regard to records which the law requires the citizen to keep, including returns and other documents made under statutory requirement. These documents are not merely the private papers of the citizen which he can conceal and prevent their disclosure as evidence in court. They possess a public character and therefore if lawfully obtained are valid evidence: Wilson v U.S. (19); Davis v U.S. (20); Shapiro v U.S. (21). The public has an interest in their non-concealment and their availability for every lawful purpose. This interest prevails over the private interest of their owner to prevent disclosure.

 

(3) Although pleaded, there was in fact no proof that the declaration of capital was given under compulsion of "threat" of criminal sanction hanging over the appellant in the event of his non-compliance. The notice sent to him asked him to present a declaration in the form attached. The form follows sec. 45 of the Ordinance but contains no notice or warning that non-delivery of the required declaration is an offence under the law. True, every person is presumed to know the law. That is a legal presumption. It is another question whether in fact the appellant was aware of the statutory penal sections and as a result of such knowledge complied with the request but otherwise would not have done so. The burden of proof that the evidence which the appellant wishes to exclude was given voluntarily is, we know, upon the prosecution. A plea of improper influence exercised on the defendant, in consequence of which he confessed, must be explicit so that the prosecution knows what case it has to meet. Here the appellant neither attested nor pleaded that he knew of the statutory penal sections and these it was which moved him to respond to the request and deliver the declaration of capital involved. In point of fact, there was no proof of the kind of influence exerted on the appellant that would justify the declaration being invalidated as evidence. The form asked the appellant to give correct particulars and to complete the form accurately. There is no reason for assuming that as a consequence he was influenced to include incorrect statements in the declaration: R. v Colpus (10).

(Berinson J. then analyzed at lenght the facts about the omissions and the related calculations, and continued.)

 

            The result ultimately is that we uphold the conviction on the third count and find that a sum of IL.21,252 was omitted, without reasonable explanation, by the appellant from his return of income for 1957.

           

On the assumption that the amount omitted was IL.35,800 the appellant was sentenced to a fine of IL.14,000 or six months' imprisonment and a suspended term of three months. In respect also of the omission as above, although it is less, we do not think that the sentence is excessive and we uphold it and dismiss the appeal.

 

            I have read the judgment of my learned friend, Halevi J., and I concur in it.

           

MANNY J.     I concur in the judgment of my learned friends, Berinson J. and Halevi J.

 

HALEVI J.     I agree.

 

2. As for the admissibility of the declaration of capital (exhibit P/4) which was the bone of contention in this appeal, it seems to me that learned Defence Counsel, and following him learned Deputy State Attorney, did not sufficiently distinguish between the confession rule and the privilege against self-incrimination.

 

            The basic argument of Mr. Shimron was that the appellant submitted the declaration of capital to the Assessing Officer on his request under sec 45(1) of the Income Tax Ordinance, 1947, a request behind which lay the criminal sanction of sec. 76(1). For myself, it is immaterial that this criminal sanction was not made express in the notice of request sent to the appellant, and I am ready to assume in his favour that he submitted return P/4 out of necessity, in order only to abide by his statutory obligation under sec.45(1) and with knowledge of the law, including sec. 76(1). Nevertheless that does not amount to "compulsion by some one in authority" in the sense of sec. 9 of the Evidence Ordinance but "compulsion under law." The only question that can arise regarding this kind of compulsion is whether the law goes so far as to compel a person to incriminate himself or leaves the door open to the privilege against self-incrimination.

           

3. The principle behind the privilege against self-incrimination - "one of the most sacred principles in the law of this country" (Lord Eldon in Ex parte Cossens (11) at p. 540) - is a Common Law principle which was given "constitutional" status by the Fifth Amendment in the United States ("No person...shall be compelled in any criminal case to be a witness against himself"). The source, it appears to me, lies in Jewish law, in the rabbinical formula "no person can declare himself a   criminal (rasha)" (Sanhedrin 9b). The Latin aphorism - "Nemo terretum se ipsum accusare (or predere)" - is an almost literal translation and attests to the Jewish source. (See the passages cited by Riesenfeld, "Law Making and Legislative Precedent in American Legal History", (1949) 33 Minn L.R. 103,118, reproduced in McCormick, Law of Evidence (1954) p. 253, notes 9-10. See for the history of the principle in England, Wigmore on Evidence (McNaughton Rev. (1961) ) vol. 8, para. 2250). With the reception of the substance of the Common Law in this country, through article 46 of the Palestine Order in Council and sec. 11 of the Law and Administration Ordinance, 1948, the Jewish law principle returned to its original source.

 

            One must indeed distinguish carefully between the embracing meaning of the principle in Jewish Law, that a person cannot incriminate himself by his own utterance, and its more limited meaning in the Common Law, a person is not required to incriminate himself. "A person is, vis-a-vis himself, a relative, and no person can declare himself a criminal," (Sanherdin. 9b) is explained by Rashi ad locum: "That is to say, he is not incriminated by his own evidence since Torah disqualifies a relative as a witness."

 

4. For all the close similarity of the self-incrimination privilege and the confession rule and in spite of their possible overlapping in certain instances, a basic difference exists between them: see R. v scott (9) at pp. 169-70, and Wigmore on Evidence, ubi supra, para. 2266.

(a) The "confession" test under see. 9 of the Evidence Ordinance is directed to examining the means by which the confession was obtained from the defendant. If these means were "promises or threats" by "a person in authority", then

"it would be dangerous - so the legislature assumes - to rely on it as being truthful... The true reason for excluding confessions not made 'voluntarily' is based on the consideration that it would be dangerous to rely on it for that reason as trustworthy evidence."

(Agranat J. in Jarboni (4) at pp. 155 3-54). (See, however, the reservations of McNaughton in Wigmore on Evidence (McNaughton Rev.) vol. 8, para. 2266, about this reason (which was that given in Wigmore 3rd ed.) in view of recent American decisions: Spano v New York (22) and Blackburn v Alabama (23) ).

 

            On the other hand the self-incrimination privilege is not based on fear of the untrustworthiness of incriminating evidence. The reason (or one of the important reasons) for it is that it is immoral - and even inhumane - to place a person in the "legal dilemma of either incriminating himself by a true admission of the crime he committed or committing a new crime by refusing to give evidence or by giving false evidence." (Cf. Williams, The Proof of Guilt (3rd ed.) p. 53). In this situation, according to the Common Law, a person may refuse to answer a question to which otherwise he would be obliged under law to reply truthfully. (See Wigmore on Evidence para. 2251, and particularly pp. 316 - 18).

           

(b) By requiring the prosecution to produce "evidence of the circumstances in which (the confession) was made" see. 9 is concerned with the factual question of whether any pressure or inducement was exerted by a person in authority to bring about the confession. Self-incrimination, by contrast, does not come from any "means" used on the defendant or accused to move him to confess the alleged offence but from the very "dilemma" of that person who knows in his heart - and perhaps alone knows without any one else suspecting him - that a true answer to the lawful question put to him might criminate him of the offence he has committed. The privilege therefore - as against the confession rule - obtains in cases of "legal compulsion" that would otherwise exist, that is, when the law (or the person acting in its name, a judge or authorized investigator) requires or "compels" the person being examined to give full and accurate answers to questions lawfully addressed to him. In this situation, and only in this situation, does the question arise - and it is a question of law - whether in fact the law compels an answer even if it tends to be "self-incriminatory" or whether the person can insist on "the privilege" and refuse to answer questions which may expose him to the danger of a criminal charge.

 

(c) The stage of the proceedings at which the privilege may be exercised varies from that at which the question of the admissibility of confession occurs. The privilege is to be claimed before the possibly incriminatory answer is given. A person possessing the privilege who answers a question without protest, even if it may incriminate him, has waived the privilege and his answer is admissible against him in every civil and criminal court: see R. v Slogget (12) and R. v Noel (13): Kenny Turner, Outlines of Criminal Law (17th ed., 1958) para. 590; Cross Evidence (2nd ed., 1963) p. 227: Wigmore on Evidence (McNaughton Rev.,) paras. 2268 and 2275.

 

            Only when the person, relying on the privilege, refuses to answer the question and is unlawfully required to answer it, will the incriminating answer be excluded as evidence against in any trial: R. v Scott (9): Kenny-Turner, loc. cit.; Wigmore, op. cit., para. 2270, p. 417 and the precedents in McCormick, op. cit. para. 127 notes (1) and (8); Cf. American Law Institute, Model Code of Evidence (1942), rule 232 and Uniform Rules of Evidence (1953), rule 38.

           

5. Accordingly, the privilege is only to be pleaded and the question of its application in a given instance is only to be treated on a refusal to answer a question which has been put or to produce a document which has been requested. Had the appellant here refused at the time to file the return of capital requested under sec. 45 (1) of the Income Tax Ordinance or to answer any of the questions appearing on the form of the return, he could have been sued under sec. 76 (1) which provides that "every person who, without sufficient cause,... fails to comply with the request of a notice given to him under this Ordinance" is liable to imprisonment and fine. At the trial, the appellant could have pleaded in defence that the self-incriminating privilege was "sufficient cause" for failing to comply with the request of the Assessing Officer, and in view of this defence the court would have had to decide whether in fact the privilege existed as regards a request under sec. 45 (1) of the Ordinance. There is no need to consider this question in the present appeal since the appellant waived the privilege (if any) by giving full answers to the questions set out in form P/4 and submitting a return of capital without contestation or opposition. In this regard, there are the direct precedents of Nicola v U.S. (24) and Hanson v U.S. (25) where it was held that persons liable for income tax, who delivered to the tax authorities upon request their books, documents and other information cannot subsequently rely on the Fifth Amendment in order to invalidate the use of this material as evidence against them in a criminal trial in which they stand charged for evasion of income tax. In Nicola v U.S. (24) it was said at p. 784 that the purpose of obliging a tax payer to hand over information is to enable the authorities to calculate the tax and verify its accuracy, and the tax payer cannot refuse to supply information and the question was whether he had waived privilege. The constitutional right, it was said, was intended for the benefit of the witness and if it was not claimed, he was deemed to have waived it. He could only claim the privilege from the Government agency when refusing to produce his books. It was too late to do so, after the information had reached the agency with his consent.

 

6. These grounds are sufficient for rejecting every plea against the admissibility of the return of capital. If the appellant possessed a self-incriminatory privilege, he had waived it. I should add that I can see no foundation in the plea itself of privilege regarding see. 45 (1) of the Income Tax Ordinance.

 

            In Israel (unlike the United States) there is no constitutional assurance of the privilege and the legislature is free to repeal or deny it. In R. v Scott (9) Lord Campbell said (at p. 170):

           

"Finally, the defendant's counsel relies upon the great maxim of English Law memo tenetur se ipsum accusare. So undoubtedly says the Common Law of England. But Parliament may take away this privilege, and enact that a party may be bound to accuse himself: that is, that he must answer questions by answering which he may be criminated."

 

            The question whether a law which binds the citizen to deliver information, documents and returns to the Government in matters defined by law compels him to incriminate himself or whether it leaves it open to him to claim the self-incriminating privilege is ultimately, in the absence of express provision, a question of statutory interpretation. At all events, in the absence of express statutory provision, a citizen who files a return (or other material as aforesaid) under lawful duty is clearly not privileged against the use of the material in evidence against him in a criminal trial. Not only is there no provision in the Income Tax Ordinance precluding the use of a return under sec. 45 (1) as evidence in a criminal trial of the person making the return for an offence under the Ordinance, but sec. 4 (2) provides the reverse:

 

"No person appointed under... this Ordinance shall be required to produce in any court any return, document or assessment, or to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties under this Ordinance except as may be necessary for the purpose of carrying into effect the provisions of this Ordinance, or with a view to, or in the course of a prosecution for any offence committed in relation to income tax."

 

A distinction must be made between the "self-incriminating privilege" and the "immunity" from the production of returns in court. See. 4 (2) denies the immunity of returns made to the Assessing Officer under see. 45 (1).

 

            Sec. 45 is not primarily directed to the disclosure of offences against the Ordinance, but the authority of the Assessing Officer to request returns, including one of capital, is to obtain full information about a person's income. The immediate purpose of the section is fiscal, to ascertain a person's true income so as to collect the tax due from him under the Ordinance. Were the citizen given the "privilege" to refuse to answer questions likely to incriminate him of an offence against the Ordinance (like the one dealt with here, omissions of income from the annual return), the privilege would prejudice not only the task of proving the criminal offence (which is the function of the privilege) but also the carrying out of the fiscal purposes of sec. 45. Two interpretations only are possible of this section - one which enables the Assessing Officer to obtain full information about a person's income and accordingly to determine and collect the tax due, and also, if the return discloses incriminatory matter, to pass such matter on to the Attorney-General for taking criminal proceedings; and one which permits a person receiving a notice under the section to refuse to answer incriminating questions and accordingly also to prevent the Assessing Officer from obtaining full information about his income, that is, to prevent the due tax to be fixed and collected. Of these two interpretations, the first is to be chosen, for the second frustrates the purpose of the law.

           

            A similar question was dealt with in England in connection with income tax law in Commissioners of Customs and Excise v Ingram (14). Under sec. 20 of the Finance Act, 1946, every registrable person must keep records and accounts, and preserve and produce them to the Commissioners as required. Every merchant, importer, etc. is also required to furnish the Commissioners information relating to the purchase or import of goods and to produce the books, accounts or other documents concerning the goods, as may be requested. The Act provides penalties for non-compliance with any request. Under Sec. 14 of the Crown Proceedings Act, 1947, the Crown may apply in a summary manner for the delivery of any accounts, the production of any books or the furnishing of any information under the enactments relating to purchase tax. The Commissioners applied for an order against the respondent. Lord Goddard stated (at p. 929) that

           

"counsel for the defendants has argued that the court would not order the production of documents which may incriminate the subject. In my opinion, one cannot make any such limitation here. The very object of the Finance Act, 1946, in the sections which relate to the matter, is to give to the Crown the power of investigating a person's accounts and so forth to see whether he is defrauding the Revenue by not paying that which he ought to pay... (It) is quite a common-place of legislation designed to protect the revenue of the Crown, as it is realised that all the information must generally be within the knowledge of the taxpayer or the subject,... to oblige him to do certain things which may have the effect of incriminating him... It is said that when a man is called on under sec. 20 to produce his documents, his books, invoices or accounts..., he is entitled to take objection and say: 'I will not produce this one or that one because it may incriminate me.' It seems to me that that would be stultifying the whole purpose of the section, and the claim for privilege, which, as between subject and subject in an action, may be made, has no application to this class of discovery or production."

 

These reasons are equally applicable in the present case.

 

Appeal dismissed

Judgment given on June 30. 1964.

CrimA 5121/98

Private (res.) Raphael Yissacharov

v.

1.            Chief Military Prosecutor

2.            Attorney-General

3.            National Public Defender’s Office

4.            Israel Bar Association

 

 

The Supreme Court sitting as the Court of Criminal Appeals

[4 May 2006]

Before President A. Barak, Vice-President Emeritus M. Cheshin and

Justices D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, A. Grunis,

M. Naor, S. Joubran

 

Appeal of the judgment of the Appeals Court Martial (General I. Schiff, Brigadier-General M. Finkelstein, Colonel (res.) Y. Kedmi) on 13 May 1998 in case no. 139/97/9.

 

Facts: While being admitted into prison for being absent from the army without leave, the appellant was found to have a dangerous drug in his possession. When he was interrogated about this, the interrogator failed to advise the appellant that he had a right to consult a lawyer. This omission, which was omitted by the prosecution, was held by the trial court to have been illegal and intentional. In the course of the interrogation, the appellant confessed that he had, on three occasions while he was a soldier, made use of dangerous drugs.

The appellant argued that the confession should not be admissible in evidence, because it was made in consequence of the interrogator failing to advise him of his right to consult a lawyer. Under Israeli law there was no statutory or case law precedent for the exclusion of evidence because of the illegal method of obtaining it, but the appellant argued that the court should adopt such a doctrine, in the spirit of the Basic Law: Human Dignity and Liberty, which was enacted in 1992.

 

Held: (Majority opinion — Justice Beinisch, President Barak, Vice-President Emeritus Cheshin and Justices Rivlin, Procaccia, Levy, Naor and Joubran) In view of the normative change in the Israeli legal system introduced by the Basic Law: Human Dignity and Liberty, and in the absence of legislation on this issue, the time has come to adopt a case law doctrine of inadmissibility for illegally obtained evidence. The appropriate doctrine for the Israeli legal system to adopt is not an absolute doctrine, but a relative doctrine of inadmissibility, which allows the court to exclude illegally obtained evidence at its discretion.

The criterion for excluding illegally obtained evidence is that the evidence should be excluded if admitting it would substantially violate the right of the accused to a fair trial, considering the circumstances of each case on its merits. This doctrine is therefore a ‘preventative’ one, rather than a ‘remedial’ one. Its aim is to prevent a violation of the right of the accused to a fair trial, rather than to educate and deter the police authorities from future violations of the law.

Factors that should be taken into account when the court exercises its discretion are the character and seriousness of the illegality that was involved in obtaining the evidence, the seriousness of the offence, the degree to which the improper investigation method affected the evidence that was obtained and the social damage and social benefit involved in excluding the evidence.

The case law doctrine of the inadmissibility of illegally obtained evidence is a general one and it applies to all types of evidence, including defendants’ confessions, notwithstanding the statutory arrangement regarding defendants’ confessions in s. 12 of the Evidence Ordinance [New Version].

In the specific case of the appellant, the failure to inform him of his right to consult a lawyer was intentional, and this was a significant factor in reaching the decision to exclude the confessions he made in the interrogation.

(Minority opinion — Justice A. Grunis) It is questionable whether a broad doctrine of the inadmissibility of illegally obtained evidence should be adopted in case law rather than in legislation.

In the specific case of the appellant, in view of the fact that the police interrogator did advise the appellant of his right to remain silent, the failure to advise him of his right to consult a lawyer should not be sufficient to justify an exclusion of the confessions. The significance of the intentional nature of the failure to advise the appellant of his right to consult a lawyer was questionable, both because the doctrine being adopted does not have an educational-deterrent purpose, and because it is hard to conceive of such an omission by a professional interrogator being unintentional.

 

Appeal allowed, by majority opinion (Justice Beinisch, President Barak, Vice-President Emeritus Cheshin and Justices Rivlin, Procaccia, Levy, Naor and Joubran), Justice Grunis dissenting.

 

 

 

Legislation cited:

Basic Law: Freedom of Occupation, s. 10.

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 4, 5, 9, 10, 11.

Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, ss. 28(a), 32, 32-36, 32(a) 34(a), 34(b), 34(c).

Criminal Procedure (Interrogation of Suspects) Law, 5762-2002, s. 16(b).

Criminal Procedure Law (Amendment no. 15), 5741-1981.

Criminal Procedure Law [Consolidated Version], 5742-1982, s. 29.

Dangerous Drugs Ordinance [New Version], 5733-1973, ss. 7(a), 7(c).

Eavesdropping Law, 5739-1979, s. 13.

Evidence Ordinance, s. 9.

Evidence Ordinance [New Version], 5731-1971, s. 12.

Military Jurisdiction Law, 5715-1955, ss. 227A, 227A(6) 227A1, 267, 316, 440I, 476, 477, 478.

Procedure (Attendance of Attorney-General) Ordinance [New Version], 5728-1968.

Protection of Privacy Law, 5741-1981, ss. 2, 32.

Public Defender’s Office Law, 5756-1995, ss. 18, 19, 19(a).

Rights of Victims of Crime, 5761-2001, s. 1.

 

Israeli Supreme Court cases cited:

[1]          CrimFH 9384/01 Al Nisasra v. Israel Bar Association (not yet reported).

[2]          CA 10425/03 State of Israel v. Sita Shasha (not yet reported).

[3]          HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel [2003] IsrSC 57(6) 285 (decision of 3 September 2003).

[4]          RT 7929/96 Kuzali v. State of Israel [1999] IsrSC 53(1) 529.

[5]          HCJ 249/82 Vaknin v. Appeals Court Martial [1983] IsrSC 37(2) 393.

[6]          CrimA 307/60 Yassin v. Attorney-General [1963] IsrSC 17(3) 1541.

[7]          CrimA 96/66 Tau v. Attorney-General [1966] IsrSC 20(2) 539.

[8]          CrimA 533/82 Zakkai v. State of Israel [1984] IsrSC 38(3) 57.

[9]          CrimA 334/86 Sabah v. State of Israel [1990] IsrSC 44(3) 857.

[10]        CrimA 747/86 Eisenman v. State of Israel [1988] IsrSC 42(3) 447.

[11]        HCJ 3412/91 Sufian v. IDF Commander in Gaza Strip [1993] IsrSC 47(2) 848.

[12]        HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [2004] IsrSC 58(2) 746.

[13]        LCA 5381/91 Hogla v. Ariel [1992] IsrSC 46(3) 378.

[14]        CrimA 1382/99 Balhanis v. State of Israel (unreported).

 

 

[15]        LCrimA 3445/01 Almaliah v. State of Israel [2002] IsrSC 56(2) 865.

[16]        LCrimA 8600/03 State of Israel v. Sharon [2004] IsrSC 58(1) 748.

[17]        CrimA 648/77 Kariv v. State of Israel [1978] IsrSC 32(2) 729.

[18]        CrimA 6613/99 Smirk v. State of Israel [1998] IsrSC 56(3) 529.

[19]        HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

[20]        CrimA 69/53 Sich v. Attorney-General [1953] IsrSC 7(2) 801.

[21]        CrimA 7335/05 Public Defender’s Office, Nazareth District v. State of Israel (not yet reported).

[22]        HCJ 453/94 Israel Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 425.

[23]        HCJ 6302/92 Rumhiya v. Israel Police [1993] IsrSC 47(1) 209.

[24]        CrimApp 5136/98 Manbar v. State of Israel (unreported).

[25]        CrimA 5614/92 State of Israel v. Mesika [1995] IsrSC 49(2) 669.

[26]        HCJ 5100/94 Public Committee Against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998 9] IsrLR 567.

[27]        CrimA 636/77 Levy v. State of Israel [1978] IsrSC 32(3) 768.

[28]        CrimA 4427/95 A v. State of Israel [1997] IsrSC 51(2) 557.

[29]        CrimFH 4342/97 El Abid v. State of Israel [1997] IsrSC 51(1) 736.

[30]        FH 3081/91 Kozali v. State of Israel [1991] IsrSC 45(4) 441.

[31]        CrimA 2/48 Al-Lodj v. Attorney-General [1948] IsrSC 1 92.

[32]        CrimA 242/63 Kariti v. Attorney-General [1964] IsrSC 18(3) 477; IsrSJ 5 203.

[33]        CrimA 270/65 Kasey v. Attorney-General [1965] IsrSC 19(3) 561.

[34]        CrimA 347/75 Hirsch v. State of Israel [1976] IsrSC 30(3) 197.

[35]        CrimA 369/78 Abu-Madijem v. State of Israel [1979] IsrSC 33(3) 376.

[36]        CrimA 115/82 Muadi v. State of Israel [1984] IsrSC 38(1) 197.

[37]        CrimA 183/78 Abu-Midjem v. State of Israel [1980] IsrSC 34(4) 533.

[38]        CrimA 154/85 Avroshami v. State of Israel [1987] IsrSC 41(1) 387.

[39]        LCrimA 3268/02 Kozali v. State of Israel (not yet reported).

[40]        CrimA 161/77 Zohar v. State of Israel [1978] IsrSC 32(1) 326.

[41]        CrimA 450/82 Abu-Ayin Tripi v. State of Israel [1983] IsrSC 37(2) 589.

[42]        CrimA 6021/95 Gomez-Cardozo v. State of Israel [1997] IsrSC 51(3) 769.

[43]        CrimA 277/78 State of Israel v. Tuvyahu [1979] IsrSC 33(1) 297.

[44]        CrimA 611/80 Matosian v. State of Israel [1981] IsrSC 35(4) 85.

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

[46]        CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

 

 

[47]        HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [1996] IsrSC 50(2) 769.

[48]        CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [1991] IsrSC 45(4) 529.

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

[50]        CrimA 3632/92 Gabbai v. State of Israel [1992] IsrSC 46(4) 487.

[51]        CA 5942/92 A v. B [1994] IsrSC 48(3) 837.

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

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

[54]        HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [2004] IsrSC 58(6) 481.

[55]        CrimApp 92/00 A v. State of Israel [2000] IsrSC 54(4) 240.

[56]        CrimA 5825/97 Shalom v. State of Israel [2001] IsrSC 55(2) 933.

[57]        CrimA 5203/98 Hasson v. State of Israel [2002] IsrSC 56(3) 274.

[58]        CrimA 480/85 Kurtam v. State of Israel [1986] IsrSC 40(3) 673.

[59]        HCJ 3815/90 Gilat v. Minister of Police [1991] IsrSC 45(3) 414.

[60]        CrimA 1302/92 State of Israel v. Nahmias [1995] IsrSC 49(3) 309.

[61]        CrimA 476/79 Boulos v. State of Israel [1981] IsrSC 35(1) 785.

[62]        CrimA 16/82 Malka v. State of Israel [1982] IsrSC 36(4) 309.

[63]        FH 9/83 Appeals Court Martial v. Vaknin [1988] IsrSC 42(3) 837.

[64]        CrimA 951/80 Kanir v. State of Israel [1981] IsrSC 35(3) 505.

[65]        CrimFH 4390/91 State of Israel v. Haj Yihya [1993] IsrSC 47(3) 661.

[66]        CrimA 6147/92 State of Israel v. Cohen [1994] IsrSC 48(1) 62.

[67]        FH 23/85 State of Israel v. Tubul [1988] IsrSC 42(4) 309.

[68]        CA 703/86 Bernstein v. Attorney-General [1989] IsrSC 43(4) 529.

[69]        CA 2515/94 Levy v. Haifa Municipality [1996] IsrSC 50(1) 723.

[70]        HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [1997] IsrSC 51(3) 750.

[71]        CrimA 260/78 Saliman v. Attorney-General [1979] IsrSC 33(2) 204.

[72]        CrimA 559/77 Meiri v. State of Israel [1978] IsrSC 32(2) 180.

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

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

[75]        CA 1354/92 Attorney-General v. A [1994] IsrSC 48(1) 711.

[76]        CA 61/84 Biazi v. Levy [1988] IsrSC 42(1) 446.

[77]        CrimA 2910/94 Yefet v. State of Israel [1996] IsrSC 50(2) 221.

 

 

[78]        CrimA 1668/98 Attorney-General v. President of Jerusalem District Court [2002] IsrSC 56(1) 625.

[79]        CrimA 2180/02 Kassem v. State of Israel [2003] IsrSC 57(1) 642.

[80]        CrimA 9970/03 Deri v. State of Israel (not yet reported).

[81]        CrimApp 6689/01 Migdalani v. State of Israel [2002] IsrSC 56(1) 173.

[82]        HCJ 266/05 Pilant v. Gen. Efroni (not yet reported).

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

[84]        MApp 298/86 Citrin v. Tel-Aviv District Disciplinary Tribunal of Bar Association [1987] IsrSC 41(2) 337.

[85]        HCJ 547/84 HaEmek Poultry Registered Agricultural Cooperative Society v. Ramat-Yishai Local Council [1986] IsrSC 40(1) 113.

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

[87]        HCJ 3992/04 Maimon-Cohen v. Minister of Foreign Affairs [2005] IsrSC 59(1) 49.

[88]        RT 3032/99 Baranes v. State of Israel [2002] IsrSC 56(3) 354.

[89]        RT 8483/00 Deri v. State of Israel [2003] IsrSC 57(4) 253.

[90]        CrimA 1741/99 Yosef v. State of Israel [1999] IsrSC 53(4) 750.

[91]        HCJ 6972/96 Association for Civil Rights in Israel v. Attorney-General [1997] IsrSC 51(2) 757.

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

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

[94]        CrimA 1/48 Silvester v. Attorney-General [1948] IsrSC 1 5.

[95]        CrimFH 4603/97 Meshulam v. State of Israel [1997] IsrSC 51(3) 160.

[96]        LCA 8925/04 Solel Boneh Building and Infrastructure Ltd v. Estate of Alhamid [2006] (1) IsrLR שגיאה! הסימניה אינה מוגדרת..

[97]        RT 8390/01 Axelrod v. State of Israel (not yet reported).

[98]        CrimA 242/85 Hazan v. State of Israel [1987] IsrSC 41(2) 512.

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

[100]      CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.

[101]      LCA 6339/97 Roker v. Salomon [2001] IsrSC 55(1) 199.

 

Israeli District Court cases cited:

[102]      CrimC (Naz) 511/97 State of Israel v. Odeh (unreported).

[103]      CrimC (TA) 4598/01 State of Israel v. Ben-Shushan (unreported).

 

 

 

American cases cited:

[104]      Miranda v. Arizona, 384 U.S. 436 (1966).

[105]      Dickerson v. United States, 530 U.S. 428 (2000).

 

Australian cases cited:

[106]      Bunning v. Cross (1978) 141 C.L.R. 54.

 

Canadian cases cited:

[107]      R. v. Oickle [2000] 2 S.C.R. 3.

[108]      R. v. Collins [1987] 1 S.C.R. 265.

 

English cases cited:

[109]      Ibrahim v. R. [1914] A.C. 599.

[110]      Kuruma v. R. [1955] A.C. 197.

 

Jewish law sources cited:

[111]      Genesis 19, 9.

[112]      Maimonides, Sefer HaMitzvot, Prohibitions, 290.

 

For the appellant — E. Zohar, R. Balchar, A. Crispin.

For the first respondent — E. Ron.

For the second respondent — Y. Resnick.

For the third respondent — K. Mann, A. Kobu.

For the fourth respondent — A. Feldman, M. Sefarad.

 

 

JUDGMENT

 

 

Justice D. Beinisch

Before us is an appeal on the judgment of the Appeals Court Martial after it gave leave to appeal to this court. At the heart of the appeal lies the question of the effect of not giving the statutory notice concerning the right to consult a lawyer on the admissibility of a confession made during interrogation. This question touches upon two fundamental issues that will be the focus of our deliberations: first, whether in the interpretive spirit of the Basic Law: Human Dignity and Liberty (hereafter: ‘the Basic Law’) it should be held that not giving the statutory notice concerning the right to consult a lawyer necessarily makes a confession of an accused under s. 12 of the Evidence Ordinance [New Version], 5731-1971 (hereafter: ‘the Evidence Ordinance’) inadmissible. This question concerns the interpretation of the provisions of the aforesaid s. 12, which makes the admissibility of a confession conditional upon its being made ‘freely and willingly.’ Second, is it possible to declare a confession as aforesaid inadmissible by virtue of a case law doctrine that illegally obtained evidence is inadmissible. This argument raises a fundamental question, which is, in essence, whether this court should adopt a general case law doctrine that illegally obtained evidence is inadmissible, and if so, what should be the nature and framework of the doctrine.

Before I turn to discuss the aforesaid questions, let us consider the main facts and proceedings that are relevant to this appeal and the arguments of the parties as presented in their written summations.

The main facts and the sequence of proceedings in the case

1.            On 17 December 1996, at around midnight, the appellant was admitted to military imprisonment camp 396 (hereafter: ‘Prison 6’) for being absent from the army without leave. As he was being admitted into the prison, the appellant was asked to undress, and when he removed his underpants, a small package wrapped in paper fell out of them. At first, the appellant tried to hide the package under his foot, but immediately thereafter he said: ‘It is grass, I can explain.’ An officer from the prison staff reported the incident to the investigative military police base in Haifa at 2:30 a.m.. The report was received by the interrogator on duty at that time, Corporal Yonatan Ophir (hereafter: ‘Corporal Ophir’ or ‘the interrogations officer’). The next day, on 18 December 1996, at 4:40 p.m., Corporal Ophir arrived at Prison 6 in order to interrogate the appellant. Before he met the appellant, Corporal Ophir received into his custody the package that had fallen from the appellant’s underpants, and also heard from the commanding officer of the prison wing where the appellant was imprisoned that the appellant confessed to him the previous use that he had made of the drug, even though it was not clear from the appellant’s statement at that time whether the aforesaid use had occurred before he was recruited into the IDF or after his recruitment.

At 4:45 p.m., Corporal Ophir began to interrogate the appellant, and after approximately twenty minutes, he began to write down his statement. Before taking the statement, Corporal Ophir told the appellant the following: ‘I am about to take your statement in circumstances where you are suspected of using and possessing dangerous drugs. Do you wish to say something with regard to the aforesaid offence? You are not obliged to say anything if you do not wish to do so, but anything that you will say will be written down and may be used as legal evidence.’ At the beginning of his statement, the appellant admitted that he smoked a drug of the cannabis type (‘grass’) when he was a soldier, during the period when he was absent without leave from the army. At 5:30 p.m., before he had finished taking the statement, Corporal Ophir left the interrogation room and spoke on the telephone with the military police commander in Haifa, Captain Nir Golan, who ordered him to arrest the appellant. At the end of the aforesaid telephone conversation, Corporal Ophir returned to the interrogation room and continued to take the appellant’s statement. The appellant gave details to the military interrogator of the instances when he made use of a cannabis-type drug while he was a soldier, and he also replied to the interrogator’s questions with regard to possession of the drug that was found in his possession when he was admitted to the prison. At 6:27 p.m. Corporal Ophir finished taking the appellant’s statement. At 6:35 p.m. Corporal Ophir ordered the appellant to provide a urine sample, and the appellant complied. Only at 6:45 p.m., approximately a quarter of hour after he finished taking the first statement, did Corporal Ophir tell the appellant that he was under arrest and that he had the right to consult a lawyer.

The next day, on 19 December 1996, the appellant spoke on the telephone with the defence attorney on duty. On the following day, Corporal Ophir interrogated the appellant a second time and took from him a second statement (prosecution exhibit 5). When Corporal Ophir began to take the statement, the appellant said: ‘I do not wish to add anything; I have nothing to add.’ Later in the statement, the appellant answered the interrogator’s questions with regard to possession of the drug that was found in his possession when he was admitted to Prison 6.

2.            On 6 January 1997, an indictment was filed against the appellant in the District Court Martial for the General Staff District (hereafter: ‘the court martial’). The first three paragraphs of the indictment charged the appellant with offences of using a dangerous drug under ss. 7(a) and (c) of the Dangerous Drugs Ordinance [New Version], 5733-1973 (hereafter: ‘the Dangerous Drugs Ordinance’). The fourth paragraph of the indictment charged the appellant with an offence of possessing a dangerous drug under the same sections of the Dangerous Drugs Ordinance.

Before the court martial, the appellant pleaded guilty to the fourth paragraph of the indictment which concerned the offence of possessing a dangerous drug, but he pleaded not guilty to the first three paragraphs of the indictment that concerned offences of using a dangerous drug. In order to prove the aforesaid three indictments, the prosecution sought to rely on the first statement that was taken from the appellant in his interrogation, in which he confessed that he had made use of a dangerous drug on several occasions when he was a soldier (hereafter: ‘the confession’). In so far as this confession was concerned, there was no dispute before the court martial with regard to the following matters: first, the prosecution confirmed to the court martial that in the circumstances of the case the military interrogator acted illegally when he took the appellant’s statement without first informing him that he was under arrest and that he had the right to consult a lawyer. We shall address this issue extensively later. Second, counsel for the appellant confirmed that his client’s confession before the military interrogator was given without any external pressure being exerted on the appellant in the interrogation in a manner that would detract from the free and willing nature of the confession that he made. Counsel for the defence also agreed that if it was determined that the confession made by the appellant was admissible and it was given full weight, it would be sufficient to prove his client’s guilt with regard to the offences with which he was charged. Counsel for the defence also did not dispute that the evidence contained something extra, i.e., additional evidence that supported the truth of the aforesaid confession. The main dispute between the parties concerned the question of the admissibility of the confession that was made when the duty to give notice of the right to consult a lawyer had been breached. Counsel for the defence argued in this respect that since the military interrogator did not warn his client of his right to consult a lawyer before the interrogation began, the appellant’s confession was made as a result of an illegal violation of the aforesaid right, and therefore it should be inadmissible as evidence.

3.            The District Court Martial accepted, by a majority, the argument of counsel for the defence that in the circumstances of the case the confession made by his client in the interrogation should be declared inadmissible, because it was made without him being advised according to law of his right to consult a lawyer. The appellant was therefore acquitted of the use of a dangerous drug with which he was charged in the first three paragraphs of the indictment, and he was convicted on his guilty plea of the offence of possessing a dangerous drug under the fourth paragraph of the indictment. It should be noted that for the appellant’s conviction on the offence of possession a dangerous drug, the court martial sentenced the appellant to 72 days imprisonment, concurrently with the period that he was under arrest, and also to two months imprisonment that was suspended over a period of three years, provided that he was not convicted of any offence under the Dangerous Drugs Ordinance.

In its reasons for the verdict, which were given separately, the District Court Martial began by discussing s. 12 of the Evidence Ordinance, which makes the admissibility of a defendant’s confession conditional upon it being given ‘freely and willingly.’ The court martial pointed out that according to the case law of the Supreme Court, the lack of a warning about the right to consult a lawyer was insufficient to make a confession under the aforesaid s. 12 inadmissible, as distinct from its possible effect on the weight of the confession as evidence. Therefore the court martial turned to consider the argument of counsel for the defence with regard to the inadmissibility of the confession for reasons not included within the framework of s. 12 of the Evidence Ordinance. The main argument of counsel for the defence in this respect was that in view of the provisions of the Basic Law: Human Dignity and Liberty, the court should rule that evidence obtained by means of an illegal violation of constitutional rights is inadmissible.

The majority opinion in the District Court Martial held that the aforesaid argument of counsel for the defence should be accepted. According to the majority’s approach, the clause requiring government authorities to comply with the law in s. 11 of the Basic Law: Human Dignity and Liberty meant that, in appropriate circumstances, evidence that was obtained by violating a constitutional right of the accused should be inadmissible, in order to protect the status and integrity of the justice system and in order to provide effective protection for rights of the individual. In this context, the majority said that: ‘The weight of the interests of a fair trial, and insistence on upholding rights of the individual, are greater than the weight that should be given to pursuing the “factual truth” for the purpose of the fight against crime’ (p. 36 of the reasons for the verdict). The majority further said that ‘… applying the rule of inadmissibility does not need to be done “strictly” but by virtue of discretion that will be exercised by the court’ (p. 38 of the reasons for the verdict; emphasis in the original). In the circumstances of the appellant’s case, the majority held that the military interrogator who took down the confession ‘acted — throughout all stages of the interrogation — knowingly and intentionally in violation of the defendant’s [the appellant’s] right to consult a lawyer, and there was no basis for holding him to have acted in good faith in this respect.’ In view of all this, the majority were of the opinion that the appellant’s confession should be inadmissible, and therefore the appellant should be acquitted of the offences of making use of a dangerous drug.

By contrast, the minority opinion held that great caution should be adopted before changing case law regarding the admissibility of illegally obtained evidence, and that in this regard the Supreme Court ought to have its say. With regard to the circumstances of the case before it, the minority justice disagreed with the position of the majority with regard to the seriousness of the violation of the appellant’s rights. Admittedly, no one disputed that the military interrogator acted improperly when he failed to advise the appellant of his right to consult a lawyer until his statement had been taken. Notwithstanding, unlike the majority justices, the minority justice in the District Court Martial was under the impression that the military interrogator did not act in this matter intentionally and deliberately, but as a result of an error resulting from a lack of familiarity with, and assimilation of, the new procedures at that time. The minority justice also saw fit to point out that after he finished taking the statement, the military interrogator helped the appellant make contact with the military defence attorney in order to realize his right to consult a lawyer. In view of this, the minority justice was of the opinion that the strength of the violation of the appellant’s rights was not so serious and extreme that it justified declaring the confession inadmissible.

4.            The military prosecutor appealed to the Appeals Court Martial against the exclusion of the confession under discussion, and against the acquittal of the appellant by a majority on the offences of making use of a dangerous drug.

The Appeals Court Martial (Justices I. Schiff, M. Finkelstein and Y. Kedmi) allowed the appeal unanimously. The court held that in the circumstances of the case, the confession of the appellant should not be excluded. Notwithstanding, the justices of the Appeals Court Martial differed in their reasons for this decision. Two of the justices were of the opinion that even after the enactment of the Basic Law: Human Dignity and Liberty, the public interests of discovering the truth and fighting crime should take precedence, and that there was no basis for finding a confession inadmissible merely because the notice about the right to consult a lawyer was not given. According to their approach, the Basic Law does not require a change in the interpretation of the provisions of s. 12 of the Evidence Ordinance, as argued by counsel for the defence, and the Basic Law did not even contain anything that required the adoption of the doctrine that evidence obtained by means of a violation of a protected right of the person under interrogation should be inadmissible. The justices emphasized in their judgment that, in principle, this court is competent to change its case law and order the exclusion of illegally obtained evidence, but in their opinion it is not desirable, since it was questionable whether the legislature has ‘expressed a desire to revolutionize the rules of evidence and change long-established case law’ (p. 35 of the judgment; emphasis in the original). With regard to the circumstances of the appellant’s case, the justices held that ‘failing to notify someone who is about to be arrested and even someone who has been arrested about his right to consult a lawyer, even if it is done in bad faith, is not in itself an extreme violation of a basic right to the extent that it will result in the inadmissibility of the confession that was made freely and willingly’ (p. 31 of the judgment; emphasis in the original).

The third justice on the panel held, in a minority opinion, that in this instance there was no need to consider the question whether to adopt a constitutional rule of inadmissibility in the Israeli legal system, since in any case the provisions of s. 12 of the Evidence Ordinance constituted a comprehensive arrangement with regard to the admissibility of a defendant’s confession. In the circumstances of the appellant’s case, the justice held that the fact that the interrogator intentionally did not give a warning, at the proper stage in the interrogation, that the appellant had the right to consult a lawyer was insufficient to undermine the free and willing manner in which the appellant made his confession.

In view of the aforesaid reasons, the Appeals Court Martial held unanimously that the appeal should be allowed and that the case should be returned to the trial court so that it could admit the appellant’s confession and make its decision accordingly. At the end of the judgment, the Appeals Court Martial decided that, pursuant to its authority under s. 440I of the Military Jurisdiction Law, 5715-1955 (hereafter: ‘the Military Jurisdiction Law’), ‘leave is hereby given to appeal to the Supreme Court.’

5.            According to the aforesaid judgment, the case was returned to the District Court Martial. Counsel for the defence did not dispute before the court martial that in view of the decision that his client’s confession was admissible, his guilt was proved for all the offences with which he was charged in the indictment. In view of this, the District Court Martial convicted the appellant of three offences of using a dangerous drug, in addition to his existing conviction for the offence of possession of a dangerous drug. With regard to the appellant’s sentence, in view of his discharge from military service on grounds of incompatibility and in view of the time that had passed since the offences were committed, the court martial refrained, with the consent of the parties, from imposing a custodial sentence on the appellant for his conviction of the three offences of making use of a dangerous drug. Therefore, for these offences the appellant was sentenced to two months imprisonment that was suspended over a period of eighteen months, provided that he did not commit any offence under the Dangerous Drugs Ordinance.

6.            In view of the leave to appeal given by the Appeals Court Martial on its judgment, counsel for the appellant filed their appeal in this court. Their main argument in the appeal was that, in view of the status and importance of the right to consult a lawyer, the confession made by the appellant as a result of an illegal violation of the aforesaid right should be declared inadmissible. On 13 September 1998, the attorney-general gave notice by virtue of his power under the Procedure (Attendance of Attorney-General) Ordinance [New Version], 5728-1968, that he would attend this proceeding, since it gives rise to a ‘question that is of great legal and public importance, in the sphere of the rules of evidence and the constitutional rights of a suspect.’

At the hearing that took place in this court on 13 June 1999 (before President A. Barak and Justices T. Or and E. Mazza) it was decided that the appeal would be heard by way of written summations before an extended panel of justices. At the appellant’s request, it was decided that the notice of appeal would serve as written summations on his behalf. In accordance with the aforesaid decision, the first respondent (the chief military prosecutor) and the second respondent (the attorney-general) filed written summations of their arguments in the appeal.

7.            On 25 October 1999, the National Public Defender’s Office filed in this court an application to file written pleadings as a ‘friend of the court.’ On 9 December 1999 the Israel Bar Association filed a similar application. For the reasons set out below, we saw fit to grant these two applications.

At the heart of the appeal before us lies the question of the effect of not giving the statutory notice concerning the right to consult a lawyer on the admissibility of a confession made by the accused in an interrogation. This question constitutes a part of a broader fundamental issue, which concerns the adoption of a doctrine that illegally obtained evidence should be inadmissible in our legal system. This is an issue of significant legal and public importance, which concerns a broad spectrum of defendants both in the military justice system and in the civilian justice system, and it is capable of raising a wide range of complex questions in the field of constitutional law and in the field of criminal evidence. In a deliberation of this kind, the Public Defender’s Office, which has a duty under the law to represent persons who have been arrested or indicted in the civilian justice system, and the Israel Bar Association which represents the active lawyers in Israel, have the ability to assist in clarifying the issues under discussion. In view of the roles of the aforesaid bodies, their expertise and experience in representing defendants, joining them to the proceeding is likely to contribute to a deeper understanding and clarification of the issue. For this reason, and in order that as broad and comprehensive a picture may be presented with regard to the questions that arise before us, we thought that there was a basis to allow the National Public Defender’s Office and the Israel Bar Association to put forward their position in this proceeding.

We therefore decided, without any objection from the parties, to join the National Public Defender’s Office and the Israel Bar Association to the proceeding before us, and we received their summary arguments (on the considerations supporting an order to join a body as a party to a proceeding in the capacity of a ‘friend of the court,’ see CrimFH 9384/01 Al Nisasra v. Israel Bar Association [1], at para. 16 of my opinion; CA 10425/03 State of Israel v. Sita Shasha [2]; HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel [3]; RT 7929/96 Kuzali v. State of Israel [4], at pp. 553-555, and the references cited there).

Arguments of the parties in the appeal

8.            In their written summations, the parties explained in depth their positions on the fundamental question that arises in this case, and they supported their reasoning with many references from Israeli law and comparative law. At this stage of our deliberations, let us discuss in brief the positions of the parties, without addressing all of the reasons and references that they address in their summations.

9.            The arguments on behalf of the appellant were presented before us by counsel from the Military Defender’s Office (Adv. E. Zohar, Adv. R. Balchar and Adv. A. Crispin). In a detailed notice of appeal, which serves also as summations of their arguments, counsel for the appellant discussed the reasons why they are contesting the decision of the Appeals Court Martial to hold their client’s confession admissible. According to counsel for the appellant, since their client’s confession was taken without him being warned according to law at the beginning of the interrogation of his right to consult with a lawyer, the confession should be inadmissible in evidence, because of two separate provisions of statute: one is s. 12 of the Evidence Ordinance and the other is the provisions of the Basic Law: Human Dignity and Liberty.

Regarding the provisions of s. 12 of the Evidence Ordinance, counsel for the appellant argued that in view of the status and importance of the right to consult a lawyer, this court should change the prevailing interpretation of the aforesaid s. 12, and determine that obtaining a confession without a statutory warning of the right to consult a lawyer necessarily violates the free and willing manner in which the accused makes his confession, and therefore it should be inadmissible. According to the approach of counsel for the appellant, the scope of the inadmissibility rule set out in s. 12 of the Evidence Ordinance should be extended so that a confession will be inadmissible whenever it is made without the person under interrogation being advised according to statute of his right to consult a lawyer. At the same time, counsel for the appellant emphasized that, in their opinion, the provisions of the aforesaid s. 12 do not constitute a comprehensive arrangement with regard to the admissibility of confessions made by defendants, and it cannot preclude the adoption of a case law doctrine regarding the inadmissibility of evidence, including a confession, that was obtained illegally. In this regard, counsel for the appellant argued that since the enactment of the Basic Law: Human Dignity and Liberty, the rights of suspects and defendants in criminal proceedings have a super-legislative constitutional status, since they are derived from the constitutional right to dignity and liberty. Consequently, they claim that not advising the appellant of the right to consult a lawyer constitutes an illegal violation of a constitutional right. According to counsel for the appellant, the proper remedy for this is that a confession made in violation of the aforesaid right should be inadmissible. This relief may be derived, according to counsel for the appellant, both from the constitutional right itself, and from the purpose, protection and government compliance clauses that are provided in the Basic Law. According to this approach, a relative doctrine of inadmissibility should be adopted that leaves the court discretion to exclude illegally obtained evidence.

In the appellant’s case, counsel argued that his confession should be excluded, inter alia in view of the serious nature of the violation of the right to consult a lawyer and in view of the fact that the court martial held that the military interrogator violated this right in bad faith and intentionally. Counsel for the appellant further argued that the failure to give the appellant the notice at the beginning of his interrogation with regard to his right to consult a lawyer was not an isolated incident, and that during the period when the appellant was being interrogated by the military police, these violations were a common occurrence. In view of all this, counsel for the appellant were of the opinion that the appeal should be allowed, the aforesaid confession should be declared inadmissible and the appellant should be acquitted of the offences of making use of a dangerous drug.

10. By contrast, the Chief Military Prosecutor, Colonel E. Ron, argued in her written summations that the appeal should be denied, for the reasons given by the majority opinion in the Appeals Court Martial. With regard to the provisions of s. 12 of the Evidence Ordinance, the chief military prosecutor argued that the court should not adopt an interpretation whereby not advising the accused of the right to consult a lawyer will necessarily lead to the inadmissibility of a confession made by him in his interrogation. According to the approach of the chief military prosecutor, for reasons that she discussed extensively, the prevailing interpretation in case law, according to which not giving a statutory notice with regard to the right to consult a lawyer does not in itself make a confession under s. 12 of the Evidence Ordinance inadmissible, should be left unchanged. With regard to the question of adopting a general doctrine that illegally obtained evidence should be inadmissible, the chief military prosecutor argued that the absence of express legislation in this regard should indicate the existence of a negative arrangement that precludes the adoption of such a judicial doctrine. According to her argument, this court ought to refrain from adopting, by means of judicial legislation, a doctrine that illegally obtained evidence is inadmissible, as requested by counsel for the appellant. In view of the variety of reasons that she listed, the chief military prosecutor argued that the appeal should be denied and the judgment of the Appeals Court Martial should be left unchanged.

11. As I said above, the attorney-general saw fit to give notice of his attendance in the proceeding before us. At the outset of his written arguments, Adv. Y. Resnick, the Deputy State Attorney, argued on behalf of the attorney-general that the attorney-general accepted the position of the chief military prosecutor and it reflected his position on the issues under consideration.

In so far as the provisions of s. 12 of the Evidence Ordinance are concerned, counsel for the attorney-general added that this is a comprehensive arrangement with regard to the question of the admissibility of defendants’ confessions. According to the case law of this court, a failure to give the statutory notice regarding the right to consult a lawyer does not, in itself, detract from the free and willing manner in which the accused makes his confession in an interrogation, and it should not be regarded as such an extreme example of an improper interrogation method that it necessarily leads to the inadmissibility of the confession. He argues that the aforesaid interpretation of the provisions of s. 12 of the Evidence Ordinance is a proper one and it should not be changed, in as much as it serves the public interest of discovering the factual truth in a criminal proceeding.

With regard to the question of the adoption of a case law doctrine that illegally obtained evidence should be inadmissible, the position of the attorney-general was that adopting such a doctrine would constitute a revolution in the rules of evidence. Therefore, he argues that if there is any basis for adoption this doctrine, it should be done in Knesset legislation and not by way of judicial legislation of the court. Counsel for the attorney-general raised a doubt as to whether all the procedural rights of suspects and defendants in criminal proceedings are in fact enshrined in the constitutional right to dignity and liberty. He further said in his arguments that the legislation that was adopted after the enactment of the Basic Laws, in the field of criminal enforcement, does not include an express provision concerning the inadmissibility of illegally obtained evidence. According to this argument, the absence of an express provision of statute in this regard is capable of indicating the existence of a negative statutory arrangement that should not be circumvented by means of a broad interpretation of the provisions of the Basic Law: Human Dignity and Liberty; this is the case especially with regard to rights that are not expressly listed within the framework of the aforesaid Basic Law. For these reasons, counsel for the attorney-general agreed with the position of the chief military prosecutor, according to which the appeal against the judgment of the Appeals Court Martial should be denied.

Adv. K. Mann and Adv. A. Kobu, counsel for the National Public Defender’s Office, which was joined to the proceeding as aforesaid, discussed in their written arguments the elevated status of the right to consult a lawyer in our legal system, the reciprocal relationship between it and the right to remain silent and the importance of the right to consult a lawyer in order to protect the propriety of the interrogation and in order to ensure the rights of the person being interrogated as a whole. Later in their arguments counsel for the National Public Defender’s Office discussed the findings of field research that they conducted at the end of 1999 and during 2003 in the Tel-Aviv district, with the aim of examining what was occurring at police stations with regard to advising persons being interrogated of the right to consult a lawyer and the right to remain silent. According to the Public Defender’s Office, the aforesaid research shows that there exists a phenomenon, which they allege constitutes a widespread practice, whereby policemen illegally refrain from notifying persons who are under interrogation of their right to consult a lawyer or they postpone the giving of the notice until after they have finished taking the statement of the person being interrogated, in a manner that undermines his ability to realize the right to consult a lawyer effectively. Against this background, the basic position of the Public Defender’s Office is that this court should adopt a case law doctrine of inadmissibility, within which framework the court may, at its discretion, exclude evidence that was obtained in violation of the basic rights of persons being interrogated in criminal proceedings. According to the approach of the National Defender’s Office, adopting such a doctrine is essential in order to protect the rights of suspects and defendants and in order to protect the fairness of criminal proceedings and the integrity and trustworthiness of the judicial system.

The Israel Bar Association (hereafter also: ‘the Bar Association’) argued also that this court should adopt a case law doctrine that illegally obtained evidence should be inadmissible. According to counsel for the Bar Association, Adv. A. Feldman and Adv. M. Sefarad, the Basic Law requires the development of constitutional remedies in order to protect the rights enshrined therein against illegal violations by executive authorities. According to this argument, the right to consult a lawyer and to be represented by him is a basic right of great importance, which constitutes an integral part of the right to a fair trial and a complementary right to the right to remain silent and the right not to incriminate oneself. According to the Bar Association, the right to consult a lawyer today constitutes a constitutional right that is derived from the right to human dignity and liberty. A failure to give notice of the right to consult a lawyer before taking the statement of a defendant in an interrogation deals a mortal blow to the aforesaid right. For the reasons set out extensively in its written arguments, the Bar Association is of the opinion that our legal system is ready to adopt a case law doctrine that will exclude evidence obtained by means of a violation of the constitutional rights of persons who are under interrogation. It argues that adopting such a doctrine will be capable of educating and deterring interrogators from using illegal interrogation methods, and of protecting human rights and the credibility of the judicial system in an effective manner.

12. It is possible, therefore, to summarize that we have seen various positions with regard to the variety of issues that arise in the case before us — including arguments concerning the interpretation of the provisions of s. 12 of the Evidence Ordinance in view of the Basic Law and arguments concerning the question of adopting a case law doctrine that illegally obtained evidence should be inadmissible. It should be noted that even according to those who believe that such a doctrine should be adopted, the court has been asked, in view of the provisions of the Basic Law, to develop a relative doctrine that will allow discretion in excluding illegally obtained evidence.

The protracted nature of the proceeding

13. Before we turn to examine the positions that have been presented to us and to determine the weighty issue brought before us, we should point out that the writing of our judgment was delayed until now for various reasons. As can be seen from the arguments of the parties, among the issues that arose in the appeal before us was the fundamental question of whether to adopt a case law doctrine according to which illegally obtained evidence should be inadmissible, and what should be the nature and framework of this doctrine. It has been said in the case law of this court that ‘… “a rule of inadmissibility” affects the heart and soul of the criminal trial… the whole issue is of great legal and public importance, and it should not be decided without regard to the complete social picture’ (per Justice Barak in HCJ 249/82 Vaknin v. Appeals Court Martial [5], at p. 422). This is an issue on which much literature has been written both in Israel and elsewhere. In other countries various arrangements have been adopted on the question of the admissibility of illegally obtained evidence. In some countries a change has occurred in the arrangements practiced in this regard as a result of legal and social developments. In Vaknin v. Appeals Court Martial [5], Justice Barak refrained from considering the question of adopting a doctrine as aforesaid in our legal system, for the reason that all of the relevant material on the subject was not brought before the court (ibid.). Notwithstanding, in that case he discussed some of the questions that arise in this context, without deciding them: ‘Should we declare evidence, which was obtained by improper methods, completely inadmissible? Should we distinguish between various kinds of evidence and between various improper methods? Does the court have discretion? What are the parameters?’ (ibid., at p. 422). These questions come before us now and they are difficult and complex. Their solution required us to assemble material from various legal systems, which we have studied and considered in depth.

Moreover, during the time that passed since the appeal was filed, several proposals have been considered for amending legislation on the issues that arose before us (see the draft Evidence Ordinance [New Version] Amendment (Statement of Accused Outside the Court) Law, 5760-1999, the draft Evidence Ordinance Amendment (no. 15) (Confession of Accused regarding Serious Offences) Law, 5761-2000, the draft Evidence Ordinance Amendment (Inadmissibility of Confession Obtained by Violence) Law, 5764-2004, and the draft Evidence Ordinance Amendment (Admissibility and Weight of Accused’s Confession) Law, 5764-2004, which concerned proposals to amend the provisions of s. 12 of the Evidence Ordinance; see also the draft Evidence Ordinance Amendment (Inadmissibility of Evidence) Law, 5765-2005, which concerns giving general discretion to the court to exclude illegally obtained evidence in accordance with criteria that we shall discuss later). In view of the legal, public and social importance of the issues brought before us and taking into account the variety of arrangements practised in this matter in other countries, we saw fit to wait before making our decision, in case a solution would be found to these questions in legislation of the Knesset. Since the aforesaid draft laws were not passed by the Knesset from the time the appeal was filed until today, there is no alternative to examining the arguments of the parties and making a decision with regard thereto. Notwithstanding, as will be clarified below, our judgment does not provide a complete solution to all the questions involved in the issue of the admissibility of illegally obtained evidence. It can be assumed that, if a need arises, these questions will be addressed in legislation that is consistent with the provisions of the Basic Law.

It should be emphasized that the appellant did not suffer any real harm from the time that passed before we gave our judgment. As will be explained below, the appellant’s conviction on the offences of making use of a dangerous drug was based on a confession whose admissibility is the question that lies at the heart of the appeal that was filed in this court. For the appellant’s conviction on the offences of making use of a dangerous drug, he was sentenced to imprisonment that was suspended for a period of eighteen months. The aforesaid suspension period has passed and, in so far as we are aware, the suspended sentence was not activated. In these circumstances, the delay in making our decision on the fundamental questions that arise in this appeal did not significantly harm the appellant.

Against this background, let us turn to examine the fundamental issues that are before us.

The right to consult a lawyer and the duty to give notice of this right

The importance of the right to consult a lawyer

14. The right of someone under arrest to be represented by a lawyer and to consult him was recognized as a fundamental right in our legal system in the earliest days of this court (see CrimA 307/60 Yassin v. Attorney-General [6], at p. 1570; CrimA 96/66 Tau v. Attorney-General [7], at pp. 545-546; see also CrimA 533/82 Zakkai v. State of Israel [8], at p. 65; CrimA 334/86 Sabah v. State of Israel [9], at p. 865; CrimA 747/86 Eisenman v. State of Israel [10], at p. 453).

When the Criminal Procedure Law (Amendment no. 15), 5741-1981, was adopted, the right of a person under arrest to meet with and consult a lawyer was expressly enshrined in statute, and it was originally provided in s. 29 of the Criminal Procedure Law [Consolidated Version], 5742-1982. This provision of statute was replaced by s. 34(a) of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996 (hereafter: ‘the Arrests Law’), with an identical wording to the wording of the aforesaid s. 29. The following is the language of the section:

‘Right of person under arrest to meet with lawyer       34. (a) A person under arrest is entitled to meet with a lawyer and consult him.’

The importance of the right to meet with and consult a defence lawyer at the interrogation stage derives from the fact that, as a rule, an interrogation by persons in authority is a complex and stressful situation for anyone who is interrogated under conditions of arrest when he is confronted by his interrogators on his own. The accepted opinion is that the right to be represented by and to consult a lawyer assists in protecting the rights of persons under arrest, ensures the fairness of the interrogation proceedings and prevents abuse of the inherent disparity of forces between the arrested person and the persons in authority who are interrogating him. In this context, it is possible to indicate several reasons that support the right of the person under arrest to legal representation at the interrogation stage: first, a consultation by the person under arrest with his lawyer assists in ensuring that the person under arrest is aware of all of his rights, including the right to a fair interrogation without any improper interrogation methods being used against him, the right not to incriminate himself and the right to remain silent. The assumption is that the lawyer will take care to give an explanation to the person under arrest with regard to his rights in the interrogation in simple and clear language, and that he will explain to him the significance of not presenting his version of events in the police interrogation. It has been said in the case law of this court that: ‘the right to defence counsel includes the legitimate possibility that a lawyer will advise the suspect or accused to remain silent and not make any statement to the police’ (per Justice Goldberg in Eisenman v. State of Israel [10], at p. 452). For this reason, it is customary to regard the right to consult a lawyer as another aspect of the right to remain silent (see Yassin v. Attorney-General [6], at p. 1570; Tau v. Attorney-General [7], at p. 546; Eisenman v. State of Israel [10], at p. 452; HCJ 3412/91 Sufian v. IDF Commander in Gaza Strip [11], at p. 847, per Vice-President Elon; HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [12], at p. 764, per Justice Rivlin).

In addition to the aforesaid, we should point out that in the past this court has adopted the position that not only does an accused in a trial have the right to remain silent but so too does a suspect in an interrogation (see, for example, LCA 5381/91 Hogla v. Ariel [13], at p. 381, per Justice Mazza; CrimA 1382/99 Balhanis v. State of Israel [14], per Justice Ilan; LCrimA 3445/01 Almaliah v. State of Israel [15], at p. 869, per Justice Dorner). We should mention that recently this court saw fit to leave undecided the question of the scope of the right to remain silent in the interrogation of a suspect (see LCrimA 8600/03 State of Israel v. Sharon [16], at pp. 756-757 and 759, per Vice-President Or and the references cited there). This question does not arise in the case before us, and therefore we too shall leave it undecided.

The right to consult a lawyer therefore helps to ensure that the person under arrest is aware of all of his rights in an interrogation. In addition to this, the defence lawyer of the arrested person may make a contribution towards ensuring the propriety of the interrogation and the lawfulness of the measures adopted during it, and he may also assist in ensuring the reliability of the evidence obtained in the interrogation proceedings (see, for example, CrimA 648/77 Kariv v. State of Israel [17], at p. 743, where President Shamgar discussed the reasons supporting the presence of a defence lawyer when an identity parade is conducted with the suspect; see also D. Bein, ‘The Right of a Suspect Under Arrest to a Defence Lawyer in Interrogation Proceedings — “Compromise” Solutions,’ 39 HaPraklit 108 (1990), at pp. 109-112). Moreover, there are some opinions that the representation of a person under arrest by a lawyer contributes to the effectiveness of the interrogation, in the sense that the lawyer may help the interrogation authorities in finding evidence that supports the innocence of the person under arrest, and even help in preventing the making of false confessions by persons under arrest (see Y. Tirosh, ‘ “The Right to Legal Representation in an Interrogation” — Rules of Entrapment in the light of Comparative Law,’ 14 Mishpat veTzava (Military Law) 91 (2000), at pp. 94-95). In view of all of the aforesaid reasons, no one disputes the elevated position and centrality of the right to consult a lawyer in our legal system.

15. In view of the importance of the right to consult a lawyer, the Arrests Law now provides that if a person under arrest asks to meet with a lawyer or if a lawyer appointed by someone close to the person under arrest asks to meet with him, ‘the person in charge of the investigation shall allow this, without delay’ (s. 34(b) of the law; emphasis supplied). It is further provided in the law that even though supervision of the movements of the person under arrest should be allowed, the meeting of the person under arrest with his lawyer should take place in private and in conditions that guarantee the confidentiality of the conversation (s. 34(c) of the law). It should be noted that, alongside these provisions of the law there are exceptions that, in appropriate circumstances, allow the meeting of the person under arrest with a lawyer to be deferred in accordance with the grounds and conditions prescribed by the law. The law also provides a special arrangement with regard to the meeting of a person under arrest with his lawyer when he is suspected of security offences. These exceptions show that, like other basic rights, even the right to consult a lawyer is not absolute and there are occasions when it has to give way to competing rights and interests (see Sufian v. IDF Commander in Gaza Strip [11], at p. 848, per Vice-President Elon; CrimA 6613/99 Smirk v. State of Israel [18], at p. 554; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [19], at pp. 380-381 {212-213}, per President Barak).

In order to complete the picture, we should point out that when the Public Defender’s Office Law, 5756-1995 (hereafter: ‘the Public Defender’s Office Law’) was enacted, statute recognized the right of suspects and persons under arrest to representation by a public defender, in the circumstances listed in the provisions of s. 18 of the aforesaid law. The restrictions on the right to representation by the Public Defender’s Office on the grounds listed in s. 18 of the law are also based on the perception that the right to legal representation in general, and the right to legal representation at the public expense in particular, are not absolute rights and they should be balanced against competing rights and interests in accordance with the grounds and conditions set out in the law.

Duty to give notice of the right to consult a lawyer

16. The right of the person under arrest to be represented by a lawyer and to consult him gives rise to the right to be given notice of the aforesaid right by the interrogation authorities. The reason for this is that without giving notice of the aforesaid right, the person under arrest will not be aware of his right to ask to consult his lawyer, and this may not only prejudice the actual right to consult a lawyer but also in certain circumstances undermine the fairness of the interrogation. The remarks of Vice-President Elon in Sufian v. IDF Commander in Gaza Strip [11] are illuminating in this regard:

‘The basic right of the defendant to meet with a lawyer gives rise to and implies the right to receive a notice of the existence of this right and the duty imposed on the authorities to give notice of this to the person under arrest. Someone who does not know of the existence of a right cannot try to realize it. This is especially the case when we are speaking of someone who is under arrest, and his mind is troubled, and he will probably not know how he should act and what he should do. For this reason the person under arrest has a right to be notified of his right to meet with a lawyer, and the authorities have a duty to notify him accordingly’ (ibid. [11], at p. 850).

This is the place to point out that the duty of the investigation authorities to give notice of the rights of the person under interrogation has undergone development over the years. Notwithstanding, it would appear that our legal system has no comprehensive and uniform statutory arrangement in this regard. With regard to the right not to incriminate oneself and the right to remain silent, the duty to give notice of these is intended to ascertain that the accused is aware of these rights at the time of his interrogation, and that he knowingly waived them when giving his statement. In its early years, this court derived the duty to give notice of the aforesaid rights from the English Judges’ Rules, which were regarded merely as guidelines (see CrimA 69/53 Sich v. Attorney-General [20], at p. 805, and the references cited there). Now s. 28(a) of the Arrests Law prescribes a duty to give a warning, even though the aforesaid section does not refer directly to warning a suspect that he has a right to remain silent in an interrogation, but it concerns giving a person an opportunity to respond before a decision to arrest him, when the officer in charge has the duty to warn him beforehand that he is not liable to say anything that may incriminate him, but that refraining from answering questions may strengthen the evidence against him (see Smirk v. State of Israel [18], at p. 545). In the case before us, no one disputes that the appellant was warned before taking his statement with regard to the right to remain silent in accordance with the wording of the warning prescribed in s. 267 of the Military Jurisdiction Law. In view of this, no questions arise in the appellant’s case with regard to the duty to give notice of the aforesaid right, and with regard to the scope of the application of the right to remain silent in the interrogation of a suspect, as distinct from an accused.

With regard to the duty to give notice of the right to consult a lawyer, this is now expressly enshrined in the provisions of the Arrests Law and the Public Defender’s Office Law, which were enacted after the Basic Law: Human Dignity and Liberty was enacted. Section 32 of the Arrests Law provides as follows:

‘Explaining rights to a person under arrest        32. If the officer in charge decides to arrest the suspect, he shall immediately make the fact of the arrest and the reason for the arrest clear to him in language that he can understand, in so far as possible, and also —

                (1)          His right that notice of his arrest should be given to a person close to him and to a lawyer, and his right to meet with a lawyer, all of which subject to the provisions of sections 34 to 36; and also his right to be represented by a defence lawyer as stated in section 15 of the Criminal Procedure Law or under the Public Defender’s Office Law.

(2) …’

(Emphasis supplied).

The provisions of s. 19 of the Public Defender’s Office Law, which deals with giving notice of the possibility of a public defence attorney being appointed, states as follows:

‘Notice to the person under arrest of a possibility of appointing a public defence lawyer            19. (a) If a person is arrested and brought to a police station or to a facility of an investigative authority under the law, or if he is suspected of committing an offence, the person in charge of the station or of the investigation shall notify him, as soon as possible, that he has the possibility of asking that a public defence lawyer is appointed, if he is entitled to one under this law.

                                (b) …’

(Emphases supplied).

A study of the two aforesaid provisions of statute shows that, prima facie, there are differences between the two with regard to the time when the duty arises to give a notice with regard to the right to consult a lawyer and the right to be represented by a public defence lawyer: according to the provisions of s. 32(a) of the Arrests Law, the duty to give notice of the right to consult a lawyer arises when the decision to arrest a person is made by the officer in charge and when notice is given that the person is under arrest. By contrast, under the provisions of s. 19(a) of the Public Defender’s Office Law, the duty to give notice of the right to ask for the appointment of a public defence lawyer applies to a person under arrest who has been brought to the police station or to a person suspected of committing an offence.

17. In their arguments before the court martial and also before us, counsel for the appellant addressed extensively the question of the proper interpretation of the term ‘person under arrest’ in the title of section 32 of the Arrests Law. According to them, this question should be decided in order to determine when under s. 32(1) the duty arises to notify a person under interrogation of his right to consult a lawyer, and whether this duty has been breached in the case of the appellant.

In their arguments, counsel for the appellant discussed two interpretive possibilities for the term ‘person under arrest’ in s. 32 of the Arrests Law: according to the narrow interpretation, which counsel for the defence asks us to reject, the duty to give notice of the right to consult a lawyer arises when a decision is made by the officer in charge to make the arrest and notice of this is given to the suspect. According to counsel for the appellant, this interpretation is not desirable since it can lead to a situation in which the interrogation authorities delay giving the notice that the suspect is under arrest until after they have taken his statement, with the result that the meeting with the lawyer loses its effectiveness. It should be said at once that the answer to the aforesaid concern lies in the determination that even according to the narrow interpretation of the term ‘person under arrest,’ it cannot be said that an illegal delay in giving notice of the decision to make an arrest will lead to a postponement of the time when the duty arises to give notice of the right to consult a lawyer. Moreover, a delay in giving the notice of arrest, which is artificial and done in bad faith, with the purpose of tendentiously postponing the time of the duty to give notice of the right to consult a defence lawyer, is likely in itself to constitute a violation of the suspect’s procedural rights, with all that this implies. Notwithstanding, it is clear that according to the narrow interpretation, the duty to give notice of the right to consult a lawyer involves the officer in charge making an objective decision to arrest the suspect, and this is capable of restricting the scope of the duty to give notice of the right to consult a lawyer.

According to the outlook of counsel for the appellant, the spirit of the Basic Law: Human Dignity and Liberty and the arrangement set out in the provisions of s. 19(a) of the Public Defender’s Office Law today require a broad interpretation of the term ‘person under arrest’ in s. 32 of the Arrests Law. According to the interpretation proposed by them, the duty to notify a ‘person under arrest’ of his right to consult a lawyer does not necessarily involve the making of a decision to arrest him, but it arises whenever a person is suspected of committing an offence and is detained in police custody for the purposes of interrogation, in such a way that his liberty and freedom of movement are restricted; this is the case even if no decision has been made by the officer in charge to arrest the suspect. The National Public Defender’s Office also supports this interpretation, in view of its argument that the duty to give notice of the right to consult a lawyer arises at the beginning of the interrogation of a person suspected of committing an offence (regarding the difficulty in determining the borderline on the question of when a person turns from a ‘witness’ into a ‘suspect,’ see Almaliah v. State of Israel [15]). Indeed, in Canada, South Africa and the United States the duty to give notice of the right to consult a lawyer applies not only with regard to persons under arrest but also with regard to suspects who are detained for the purposes of interrogation. With regard to English law, the duty to give notice of the right to consult a lawyer applies, as a rule, to a ‘person under arrest’ when he arrives at the police station (see s. 58(a) of the Police and Criminal Evidence Act 1984 (hereafter: ‘PACE’); see also Police and Criminal Evidence Act 1984 Code of Practice C, para. 3.1) Notwithstanding, there are circumstances in which the duty to give notice of the right to consult a lawyer applies even before the suspect is arrested (see PACE Code of Practice C, para. 3.21).

Prima facie, the question of the interpretation of the term ‘person under arrest’ in s. 32 of the Arrests Law should have arisen in the circumstances of the case before us, since the confession of the appellant was taken from him when he was suspected of offences under the Dangerous Drugs Ordinance and was being detained for the purposes of interrogation, but before he received a notice that he was under arrest for these offences. In the aforesaid circumstances, the question whether, according to the aforesaid s. 32, the interrogator should have warned the appellant before taking his statement of his right to consult a lawyer would appear to arise. But in practice, for the reasons that will be made clear below, I agree with the position of the Appeals Court Martial that a decision with regard to the interpretation of the term ‘person under arrest’ in the aforesaid s. 32 is not required in the appellant’s case. Therefore, even though I am inclined to adopt the broad interpretation of the term ‘person under arrest’ in s. 32 as argued by counsel for the defence, I do not see any need to decide this question in the present case, and I leave it undecided.

The breach of the duty to give the notice in the case of the appellant

18. As has been clarified above, the interrogation of the appellant was conducted by the military police because he was a soldier. Under the provisions of s. 227A of the Military Jurisdiction Law, an interrogation as aforesaid is subject to the provisions of ss. 32 to 36 of the Arrests Law, mutatis mutandis. Therefore, the provisions of the Arrests Law concerning the right to meet with a lawyer and to receive notice of this apply also to soldiers being interrogated by the military police. Notwithstanding, s. 227A1 of the Military Jurisdiction Law further provides the following:

‘Soldier who is interrogated    227A1. Without derogating from the provisions of section 227, the provisions of section 34 and 35 of the Criminal Procedure (Enforcement Powers — Arrests) Law shall apply with regard to a soldier who is interrogated and under the law there is an almost certain possibility that he will be arrested, all of which according to the case and mutatis mutandis as stated in section 227A; for the purpose of this section, ‘under the law’ — including under case law.’

Thus we see that with regard to the interrogation of soldiers by the military police, the legislature expressly provided that the right to consult a lawyer and the duty to give notice of this right shall apply to every soldier who is interrogated and with regard to whom, under the law, ‘there is an almost certain possibility that he will be arrested.’ Thus, taking into account the special characteristics of soldiers and the interrogation thereof, the legislature saw fit to provide expressly that the existence of an almost certain possibility that the soldier will be arrested is sufficient to give rise to his right to consult a lawyer and the duty to give notice thereof. Moreover, with regard to soldiers there is also an arrangement in the Military Jurisdiction Law according to which any person being interrogated who is soldier and who is likely to be arrested, and any accused who is a soldier, are entitled to representation by the military defender’s office (see s. 227A(6) and s. 316 of the aforesaid law).

19. Section 227A1 of the Military Jurisdiction Law was adopted in 1998 within the framework of the thirty-fourth amendment of the law. Therefore, when the appellant was interrogated in 1996, the aforesaid provision had not yet been enacted. Notwithstanding, the guidelines of the military police that were in forced at that time determined a similar arrangement to the one enshrined in the aforesaid s. 227A1, according to which: ‘should it be known in advance that a soldier is going to be arrested, he should be given notice of the suspicions and his rights before he is interrogated, including the right to consult with a lawyer’ (Public Defender’s Office exhibit 8). In view of this, there is no dispute between the parties before us that under the law that prevailed at the time the appellant was interrogated, there arose a duty to give notice of the right to consult a lawyer when it was known in advance that the soldier under interrogation was likely to be placed under arrest, even before a decision was made to arrest him. There is also no dispute that the military interrogator who interrogated the appellant acted contrary to what was required by the aforesaid guideline: at the beginning of the interrogation of the appellant on 18 December 1996, it was clear that he was likely to be arrested, in view of the fact that when he was admitted to Prison 6 a dangerous drug of the cannabis type was found in his possession. Notwithstanding, the military interrogator began to take the appellant’s statement without first warning him of his right to consult a lawyer. Moreover, even after the military interrogator’s superior officer ordered him in a telephone conversation during the interrogation to place the appellant under arrest, the interrogator continued to take the statement and only approximately a quarter of an hour after he had finished taking it, he notified the appellant that he was under arrest and that he had the right to consult a lawyer. There is therefore no dispute that the military interrogator acted illegally when he refrained from warning the appellant with regard to his right to consult a lawyer when he began to take his statement, or at least after his superior officer told him, while he was taking the statement, to place the appellant under arrest. In view of the aforesaid omission of the military interrogator, the appellant was not aware of the right to consult a lawyer before the first statement was taken from him. Therefore the appellant did not ask to consult a lawyer before he confessed that he had made use of a dangerous drug when he was a soldier. In these circumstances, it is agreed by the parties before us that the failure to notify the appellant of his right to consult a lawyer amounted to a violation of the actual right to consult a lawyer.

20. In their written summations, the parties extensively addressed the question whether the failure to warn the appellant at the beginning of his interrogation with regard to his right to consult a defence attorney amounted to a violation of a constitutional right. This question has no simple solution, in view of the fact that the right to consult a lawyer is not expressly mentioned in the Basic Law: Human Dignity and Liberty. Admittedly, the constitutional right to dignity and liberty contains a variety of values, and it would appear that it has a strong connection with the rights of a suspect, a person under arrest and a defendant in criminal proceedings. Notwithstanding, various approaches are possible with regard to the question of which of the procedural rights in the criminal proceeding are indeed included within the framework of the constitutional right to dignity and liberty, and what is the scope of the constitutional protection given to rights that are not expressly mentioned in the Basic Law (see, in this regard, my remarks in CrimA 7335/05 Public Defender’s Office, Nazareth District v. State of Israel [21], at para. 9 of my opinion; for an approach that calls for care in extending the scope of the rights included in human dignity and liberty without them being expressly mentioned in the Basic Law, see HCJ 453/94 Israel Women’s Network v. Government of Israel [22], at pp. 535-536 {467-468}, per Justice Zamir; A. Bendor, ‘Criticism of the Relativity of Basic Rights,’ 4 Mishpat uMimshal (1997) 343, at p. 344; H. Sommer, ‘Unmentioned Rights — On the Scope of the Constitutional Revolution,’ 28 Hebrew Univ. L. Rev. (Mishpatim) (1997) 257, at pp. 267, 331, 337; for an approach that supports the inclusion of procedural rights of suspects, persons under arrest and defendants in criminal proceedings in the constitutional right to dignity and liberty, see A. Barak, Interpretation in Law — Constitutional Interpretation (vol. 3, 1994) at pp. 431-433; M. Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 27, at p. 34; E. Gross, ‘The Procedural Rights of the Suspect or the Accused under the Basic Law: Human Dignity and Liberty,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) 155 (1996), at pp. 156, 179; Y. Karp, ‘The Criminal Law — A Janus of Human Rights: Constitutionalization in the light of the Basic Law: Human Dignity and Liberty,’ 42 HaPraklit 64 (1995), at pp. 80-82; for statements in the case law of this court according to which the right to consult a lawyer constitutes a constitutional right by virtue of its being derived from the dignity and liberty of the person under arrest, see Sufian v. IDF Commander in Gaza Strip [11], at pp. 847-848, and 850 per Vice-President Elon; HCJ 6302/92 Rumhiya v. Israel Police [23], at p. 212, per President Barak; CrimApp 5136/98 Manbar v. State of Israel [24]; Marab v. IDF Commander in Judaea and Samaria [19], at p. 380 {212}, per President Barak; Association for Civil Rights in Israel v. Minister of Public Security [12], at p. 764, per Justice Rivlin).

It should be noted that in Canada and South Africa the right to consult a lawyer is given an express constitutional status. In Canada the right to consult a lawyer is enshrined in s. 10(b) of the Charter of Rights and Freedoms, whereas in South Africa the aforesaid right is enshrined in the provisions of s. 35(2)(b) of the Constitution of 1996. In the United States, the Supreme Court has recognized the right to consult a lawyer as a constitutional right, since it is derived from the right to representation under the Sixth Amendment of the Constitution and also from the right not to incriminate oneself and the right to due process that are protected within the framework of the Fifth Amendment of the Constitution (see Miranda v. Arizona [104]; see also W.R. LaFave and J.H. Israel, Criminal Procedure (second edition, 1992), at pp. 529-530). In addition, we should point out that the draft Basic Law: Trial Rights (Draft Laws 1994, 335), which was prepared by the Minister of Justice and was tabled in the Knesset in 1994, proposed to give an express constitutional status to the right of a person under arrest to meet with a lawyer and the right to receive a notice of this (see s. 6 of the draft law). As is well known, this proposal did not become law.

After considering the various aspects involved in the matter, I have come to the conclusion that in the case before us we do not need to decide the comprehensive and complex issue concerning the constitutional status of the procedural rights of suspects, persons under arrest and defendants in criminal proceedings, even though it seems that in our case law there is a trend towards the approach that the right to consult a lawyer is a constitutional right. Nonetheless, even if we say that the right of a person under arrest to consult a lawyer does not have a super-legislative constitutional status — and on this subject I see no need to express an opinion — no one doubts its importance and centrality in our legal system. Moreover, even if the right to consult a lawyer is not included within the narrow inner circle of the constitutional right to human dignity and liberty, it is possible to say that under the influence of the Basic Laws the status of the aforesaid right and the duty to take account of it has been strengthened; this is because of its possible connection with the dignity and liberty of the person under interrogation and in view of its being a part of the right to a fair trial in criminal proceedings which we shall discuss extensively later. Consequently, a failure to give the statutory notice with regard to the right to consult a lawyer may, in appropriate circumstances, lead to the inadmissibility of a confession made by the accused in an interrogation. What the normative basis for this should be and in what circumstances such inadmissibility will be required are the questions that will lie at the heart of our further deliberations.

Section 12 of the Evidence Ordinance — a ‘free and willing’ confession

21. For decades, the provisions of s. 12 of the Evidence Ordinance have governed the question of the admissibility of a confession made during an interrogation of a defendant. The following is the wording of the section:

‘Confession    12. (a) Testimony concerning a confession of the accused that he committed an offence shall be admissible only if the prosecutor brings testimony concerning the circumstances in which the confession was made and the court sees that the confession was made freely and willingly.’

                (Emphasis supplied).

A similar arrangement is provided in s. 477 of the Military Jurisdiction Law, which states:

‘Confession of accused as evidence    477. A court martial shall not admit a confession of an accused in evidence unless it is persuaded that it was made by the accused of his own free will.’

                (Emphasis supplied).

There is no dispute between the parties before us that the ‘free will’ test provided in s. 477 of the Military Jurisdiction Law is substantially the same as the ‘free and willing’ test provided in s. 12 of the Evidence Ordinance. Therefore, even though our deliberations below will focus on the interpretation of the provisions of s. 12 of the Evidence Ordinance, our interpretive conclusions will also be valid with regard to s. 477 of the Military Jurisdiction Law.

22. In the notice of appeal that they filed, counsel for the appellant argued that since the Basic Law: Human Dignity and Liberty was enacted, the prevailing interpretation of the rule of inadmissibility provided in s. 12 of the Evidence Ordinance, as determined in the case law of this court, ought to be changed. According to the argument, in the spirit of the Basic Law it should be held that since the appellant was not warned according to law at the beginning of his interrogation with regard to his right to consult a lawyer, the confession that was taken from him is not made ‘freely and willingly’ and therefore it should be declared inadmissible in accordance with the provisions of the aforesaid law. In order to make a decision with regard to this argument, let us first discuss the interpretation given to the aforesaid s. 12 in the case law of this court before the enactment of the Basic Law: Human Dignity and Liberty. Then let us turn to examine the question whether after the enactment of the Basic Law our prevailing case law interpretation of the aforesaid s. 12 ought to be changed, and whether we should decide that a failure to give the statutory warning with regard to the right to consult a lawyer necessarily makes a defendant’s confession inadmissible, as argued by defence counsel.

The interpretation of section 12 of the Evidence Ordinance before the Basic Law

23. The rule of inadmissibility provided in s. 12 of the Evidence Ordinance has its origins in English common law (see Ibrahim v. R. [109]). Initially, the aforesaid rule was intended to examine the circumstances concerning the manner of taking a confession within the framework of an interrogation by a person in authority (see the remarks of Justice Or in CrimA 5614/92 State of Israel v. Mesika [25], at pp. 677-678 and the references cited there; for the opinion that the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance applies also to confessions made before persons who are not in authority, see Y. Kedmi, On Evidence (vol. 1, 2004), at p. 12).

In accordance with the rule provided in s. 12 of the Evidence Ordinance, the court should declare a confession of an accused inadmissible, if it was not made freely and willingly. The definition of when a confession is made ‘freely and willingly’ is not simple, and the case law of this court has had to contend with this question from the outset. A person who is under interrogation for offences of which he is suspected experiences psychological pressure and physical discomfort that are inherent to the situation in which he finds himself. ‘An interrogation by its very nature places the person under interrogation in a difficult position… any interrogation, no matter how fair and reasonable, places the person under interrogation in embarrassing and trying situations, intrudes into his private concerns, invades the innermost parts of his soul and places him under serious emotional pressure’ (see HCJ 5100/94 Public Committee Against Torture v. Government of Israel [26], at pp. 834-835 {589-590}, per President Barak, and the references cited there). In view of this, it is clear that the expression ‘freely and willingly’ should not be given a literal interpretation. Indeed, the meaning given to this term over the years in the case law of this court was a technical-legal one, according to which a confession of an accused will be inadmissible under the aforesaid s. 12 only if improper ‘external pressure’ was exerted on him at the time of the interrogation to such an extent that it was capable of undermining his ability to choose freely between making a confession and not making one (see Sich v. Attorney-General [20], at p. 808; CrimA 636/77 Levy v. State of Israel [27], at p. 774; CrimA 4427/95 A v. State of Israel [28], at p. 564; Smirk v. State of Israel [18], at p. 541; CrimFH 4342/97 El Abid v. State of Israel [29], at pp. 837, 865).

The question of what is improper ‘external pressure’ that is capable of undermining the ability of the accused in his interrogation to choose freely between making a confession and not making one will be considered later. At this stage of our deliberations, we should emphasize that even if it is not proved that a confession made by an accused in his interrogation is admissible as evidence because it is made ‘freely and willingly,’ the court should also examine the weight and credibility of the confession. This is because ‘… even the use of interrogation methods that are permitted may lead to a person being interrogated confessing an offence that he did not commit,’ because of internal pressures in the human soul (see the remarks of President Shamgar in FH 3081/91 Kozali v. State of Israel [30], at p. 448).

The conditions for determining the admissibility and weight of a confession of an accused indicate that even though a confession that was obtained by a person in authority constitutes admissible evidence to prove guilt in criminal cases, statute and case law provide barriers whose purpose is to address the concerns involved in admitting it as evidence (for the reasons for the aforesaid concerns and for the possible factors leading to the making of false confessions in interrogations before persons in authority, see the Report of the Commission chaired by Justice Goldberg concerning Convictions based solely on a Confession and concerning the Grounds for a Retrial (1995), at pp. 8-10 (hereafter: the Report of the Commission concerning Convictions based solely on a Confession); B. Sanjero, ‘The Confession as a Basis for a Conviction — “Queen of Evidence” or Empress of False Convictions,’ 4 Alei Mishpat (2005) 245, at p. 249 et seq.; for the dominant approach in our case law, whereby a confession of an accused constitutes evidence for proving guilt in criminal trials, whose admissibility and weight will be examined in accordance with the circumstances of each individual case, see El Abid v. State of Israel [29], at pp. 819-820 per Justice Or, at pp. 833-834 per Justice M. Cheshin, at p. 855 per Justice Strasberg-Cohen, at p. 857 per Justice Mazza and at p. 865 per President Barak; for the approach that regards the confession of an accused as ‘suspect evidence’ whose credibility should be examined ab initio from a sceptical perspective, see El Abid v. State of Israel [29], at pp. 836-839, per Justice Dorner). In this context it should be noted that in 2002 the Criminal Procedure (Interrogation of Suspects) Law, 5762-2002, was passed. This provides that, as a rule, the interrogation of a suspect at a police station for serious offences shall be documented visually subject to the exceptions listed in the law. This arrangement is supposed to be implemented gradually by means of orders made by the Minister of Public Security as stated in s. 16(b) of the law. The statutory duty to document interrogations of suspects visually or audibly is intended to allow the court to obtain an impression, as closely and objectively as possible, of the manner in which the interrogation was conducted and the circumstances in which the confession was made during it. The purpose of this is to help the court decide the admissibility and weight of confessions made in an interrogation, and to allow better protection of the rights of persons under interrogation (see the explanatory notes to the draft Evidence Ordinance Amendment (no. 15) (Confession of an Accused to Serious Offences) Law, 5761-2000).

24. The question of what is the purpose of the rule of inadmissibility provided in s. 12 of the Evidence Ordinance has undergone development over the years. Initially, the ‘free will’ test was used to render inadmissible confessions that were obtained by employing interrogation methods that mainly involved force and violence, or the threat thereof, and to render inadmissible confessions that were obtained by employing unfair entrapments or inducements. At that time, the prevailing approach in case law was that the ‘free will’ test was intended to safeguard the credibility of confessions made in the presence of persons in authority. According to that approach, improper interrogation methods, such as violence, force and threats or inducements and promises by a person in authority, were likely to lead to the making of false confessions and therefore these confessions should be regarded as inadmissible ab initio (with regard to the fact that the ‘free will’ test was originally intended to safeguard the credibility of confessions in English common law, see C. Tapper, Cross and Tapper on Evidence (eighth edition, 1995), at p. 664; M.A. Godsey, ‘Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-Incrimination,’ 93 Cal. L. Rev. (2005) 465, at pp. 481-482; with regard to the fact that this court, in its early years, adopted from the common law the approach that the rule of inadmissibility was intended to safeguard the credibility of confessions, see CrimA 2/48 Al-Lodj v. Attorney-General [31], at pp. 96-97, per Justice S.Z. Cheshin; Yassin v. Attorney-General [6], at p. 1554; CrimA 242/63 Kariti v. Attorney-General [32], at pp. 497-498, per Justice HaLevy; CrimA 270/65 Kasey v. Attorney-General [33], at p. 566, per Justice Sussman).

Over the years, the emphasis was changed to include not only forcible measures and physical violence that were regarded as a ground for inadmissibility, but also claims with regard to exerting unfair emotional or psychological pressure on defendants in their interrogation. At the same time, there was a change in thinking with regard to the reasons underlying the inadmissibility rule provided in the aforesaid section 12. Alongside the purpose of safeguarding the credibility of confessions, some authorities were of the opinion that the ‘free will’ test was intended to protect the rights of defendants in an interrogation and the propriety of the criminal proceeding. According to this approach, declaring a confession inadmissible is intended to provide relief for the violation of the human dignity of the person under interrogation, and in order to prevent the court being a party to the illegality perpetrated by the interrogation authorities when admitting the evidence in a trial. In addition, an opinion was expressed that the purpose of the inadmissibility rule provided in the aforesaid s. 12 is to educate and deter the interrogation authorities against the use of improper interrogation methods. (For the development in thinking with regard to the reasons underlying the inadmissibility rule enshrined in s. 12, see E. Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ 30 Hebrew Univ. L. Rev. (Mishpatim) (1999) 145, at pp. 156-157; E. Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ Landau Book (A. Barak, E. Mazuz, eds., 1995, vol. 2) 983, at p. 1018; also see and cf. A. Stein, ‘Coincidence and Theory in Dispensing Justice,’ 29 Hebrew Univ. L. Rev. (Mishpatim) (1998) 5, at pp. 6-8; on the development in understanding the reasons for the ‘free will’ test in English common law before the enactment of the Police and Criminal Evidence Act 1984, see: Cross and Tapper on Evidence (1995), supra, at pp. 666-668).

25. Since the end of the 1970s, three interpretive approaches can be seen with regard to the reasons for the rule of inadmissibility in s. 12 of the Evidence Ordinance. As we shall clarify below, the three interpretive approaches are based, to a greater or lesser degree, on the reason concerning the safeguarding of the credibility of confessions; the difference between the approaches is reflected in the weight given to the purpose concerning protection of the rights of a person under interrogation.

According to one interpretive approach, whose main proponent in case law was President Landau, improper interrogation methods such as physical violence, threats, unfair inducements and promises or exerting prohibited psychological pressure on the accused in his interrogation automatically make his confession inadmissible in view of the serious violation of his dignity as a human being and of his physical and emotional integrity. In order to protect the rights of the person under interrogation, the provisions of s. 12 of the Evidence Ordinance establish an irrebuttable presumption according to which a confession that was obtained by improper methods as aforesaid is not a true confession; therefore it should be declared inadmissible in limine, without any need to consider the degree to which the improper interrogation methods influenced the free will of the person under interrogation de facto and the truth of the content of the confession. According to this approach, the question whether we should be concerned with regard to the truth of a confession that was obtained by improper methods is, therefore, a question of law or at least a mixed question of law and fact (see the remarks of President Landau in CrimA 347/75 Hirsch v. State of Israel [34], at p. 200).

Alongside the aforesaid approach, another interpretive approach has been expressed in the case law of this court. The chief proponent of this approach was Justice H.H. Cohn. According to this approach, even when there are interrogation methods that are improper in the extreme, the court should examine, from a factual point of view, the circumstances of each case on its merits, in order to determine whether the improper methods were sufficient to undermine the free will of the accused de facto when making his confession, in which case it will be declared inadmissible because of the concern that it may be a false confession, or whether, notwithstanding the adoption of the aforesaid interrogation methods, the accused retained the ability to make a free choice with regard to making his confession, in which case the evidence will be admissible, and the trial will focus on the question of its weight as evidence. According to this interpretive approach, the illegality in obtaining the confession does not in itself make it inadmissible, as long as the accused was not deprived of his free will in making his confession and there is no concern with regard to the truth of its content. In the words of Justice H.H. Cohn: ‘… the accused’s confession is one thing, and the abuse by his interrogators another’ (CrimA 369/78 Abu-Madijem v. State of Israel [35], at p. 381). This interpretive approach regards the main purpose of the inadmissibility rule provided in s. 12 of the Evidence Ordinance as safeguarding the credibility of the confessions made in an interrogation (see also the remarks of President Y. Kahan in CrimA 115/82 Muadi v. State of Israel [36], at p. 249; see also the opinion of Justice H.H. Cohn in CrimA 183/78 Abu-Midjem v. State of Israel [37]).

The essence of the difference between the two interpretive approaches was discussed by Justice H.H. Cohn as follows:

‘… In practice we are deliberating upon the various facets of the question of the proper judicial policy that this court should adopt. On the one hand, it is our duty to protect human dignity so that it is not harmed by those who abuse it, and to do everything in out power to restrain the police interrogators from obtaining the goal of their interrogation by improper and despicable methods; on the other hand, it is our duty to fight crime, which is ever on the increase and is destroying everything good in this country, and to prevent public safety being abandoned to the villainies of violent criminals merely because they were hit by police interrogators. It seems to me that the difference between us is merely one of priorities: according to my esteemed colleague [President M. Landau] the protection of human dignity and basic rights takes precedence, whereas according to me the protection of public safety takes precedence’ (Abu-Midjem v. State of Israel [37], at pp. 546-547) (square parentheses supplied).

A third interpretive approach with regard to the provisions of s. 12 of the Evidence Ordinance was adopted in Muadi v. State of Israel [36], in the opinion of Justice Goldberg (at pp. 222-224). This interpretive approach constitutes a middle path between the other two interpretive approaches that we discussed above. According to this approach, in general, the illegality in itself does not render a confession inadmissible under s. 12 of the Evidence Ordinance. Therefore, the court should examine each case, from a factual perspective, on its merits in order to discover whether the improper interrogation method deprived the accused of his free will in making his confession; if it did, the confession will be inadmissible because of concerns with regard to the truth of its content. Notwithstanding, in cases where the level of impropriety amounted to a violation of the accused’s ‘humanity’ and reached ‘… a brutal and inhuman level of interrogation,’ then the confession should be declared inadmissible under s. 12 automatically, without considering the de facto effect of the improper interrogation method on the free will of the accused. This approach combines the various possible reasons for the inadmissibility rule in s. 12 of the Evidence Ordinance. It gives considerable weight to the purpose concerning the protection of the credibility of defendants’ confessions in order to protect public safety and fight crime. Nonetheless, in cases where use was made of interrogation methods that are so extremely wrong that they ‘violate the humanity’ of the person under interrogation, then this approach sees fit to attribute great weight to the right to human dignity and the integrity of body and mind, without examining whether in the circumstances of the case the accused was de facto deprived of his free will when making his confession. It would appear that this interpretive approach is the one accepted by the case law of this court since the judgment given in Muadi v. State of Israel [36] (see, for example, the opinion of Justice Halima in CrimA 154/85 Avroshami v. State of Israel [38]; the remarks of President Shamgar in Kozali v. State of Israel [30], at pp. 446-448; and the remarks of Vice-President Mazza in LCrimA 3268/02 Kozali v. State of Israel [39], at para. 28).

26. For the purposes of the case before us, it should be emphasized that according to the three interpretive approaches that we have discussed, a failure to give the statutory notice concerning the right to remain silent or the right to consult a lawyer does not in itself make a confession inadmissible under section 12 of the Evidence Ordinance. It should be noted that even according to the interpretive approach of President Landau, which emphasizes the protection of the defendant’s rights in his interrogation, a failure to give the statutory notice concerning the right to remain silent and the right to consult a lawyer does not amount to an improper interrogation method of the kind that necessarily leads to the inadmissibility of the confession. The position adopted in our case law is that the effect of the violation of the aforesaid rights on the free will of the person under interrogation and on the weight of the confession that he made should be examined in each case on its merits (for cases in which it was held that the absence of a statutory warning concerning the right to remain silent does not necessarily lead to the inadmissibility of a confession made in the interrogation, even though punctiliousness with regard to the warning of a suspect before taking his statement makes it easier for the court to determine the admissibility and weight of the confession, see Yassin v. Attorney-General [6], at p. 1556; CrimA 161/77 Zohar v. State of Israel [40], at p. 329; CrimA 450/82 Abu-Ayin Tripi v. State of Israel [41], at p. 603; Balhanis v. State of Israel [14], in the opinion of Justice Elon and the opinion of Justice Kedmi; for judgments in which it was held that an illegal violation of the right to consult a lawyer does not necessarily lead to the inadmissibility of a confession made in an interrogation, and that the effect of the violation of the aforesaid right on the free will of the person under interrogation and the weight of the confession that he made should be examined in each case on the merits, see Zakkai v. State of Israel [8], at pp. 64-65 and 68, per President Shamgar; Eisenman v. State of Israel [10], at p. 454, per Justice Goldberg; CrimA 6021/95 Gomez-Cardozo v. State of Israel [42], at pp. 784-785, per Justice M. Cheshin; Smirk v. State of Israel [18], at pp. 545-555; it should be noted that the cases in which a confession of a defendant was held to be inadmissible under the aforesaid s. 12 because a statutory notice was not given with regard to the right to remain silent or the right to consult a lawyer have been very few, and they were based on the special circumstances of each case. See, for example, CrimA 277/78 State of Israel v. Tuvyahu [43], at pp. 300-301, per Vice-President Landau; CrimA 611/80 Matosian v. State of Israel [44], at pp. 105-107, per President Shamgar).

In addition to the aforesaid, we should point out that s. 478 of the Military Jurisdiction Law provides a similar arrangement to the one determined in case law. It states as follows:

‘Confession of accused of his own free will      478. The fact that a statement of an accused that contains a confession was obtained other than in accordance with the rules stipulated in sections 266 to 272 [which include the duty to warn an accused about his right to remain silent in an interrogation] does not prevent the court martial from determining that the accused made the confession of his own free will.’

                (Square parentheses supplied).

It follows that the arrangement provided in s. 478 of the Military Jurisdiction Law is consistent with the interpretation given in case law to the provisions of s. 12 of the Evidence Ordinance, according to which a failure to give the statutory notice concerning the right to remain silent or the right to consult a lawyer does not, in itself, make a confession of an accused inadmissible; this depends on the circumstances of each case on its merits.

27. In the notice of appeal that they filed, counsel for the appellant argued that in view of the provisions of the Basic Law: Human Dignity and Liberty, the interpretation accepted by this court should be changed and it should be held that a failure to give the statutory warning with regard to the right to consult a lawyer should necessarily lead to a confession being inadmissible under s. 12 of the Evidence Ordinance.

Before we turn to examine the aforesaid argument, we should point out that over the years considerable criticism has been levelled at the ‘free will’ test both in Israel and in other countries that have adopted the aforesaid test from English common law. The main arguments made against it were that it is too artificial and vague a test for the purpose of deciding the question of the admissibility of confessions; that the reasons underlying it are not sufficiently clear; and that it is very difficult to examine the effect of improper interrogation methods on the free will of the person under interrogation in accordance with the circumstances of each case (see, for example, M. Landau, ‘Notes on the amended draft Evidence Law,’ 16 Hebrew Univ. L. Rev. (Mishpatim) (1986) 17, at p. 26; the Report of the Commission concerning Convictions based solely on a Confession, supra, at p. 12; see also LaFave and Israel, Criminal Procedure, supra, at pp. 298-299; Godsey, ‘Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-Incrimination,’ supra, at pp. 469-471; M. Zander, The Police and Criminal Evidence Act 1984 (London, fourth edition, 2003), at pp. 312-313). And indeed, in England, the birthplace of the ‘free will’ test, as well as in Australia, where this test was adopted in case law from English common law, the legislature has seen fit to abandon the ‘free will’ test and replace it with other criteria for examining the admissibility of defendants’ confessions (see s. 76 of the Police and Criminal Evidence Act 1984 in England and ss. 84, 85 and 90 of the Uniform Evidence Acts 1995 in Australia).

In addition to the aforesaid, it should be noted that the federal courts in the United States adopted in their case law the ‘free will’ test from English common law, and in 1936 this test was applied to the states by means of the Fourteenth Amendment of the Constitution, which concerns the right to a fair trial (see Lafave and Israel, Criminal Procedure, supra, at p. 294). After the decision was made in Miranda v. Arizona [104], and its rules became the main test for declaring defendants’ confessions inadmissible, the ‘free will’ test continued to be used to examine the admissibility of confessions, even though the rules established in Miranda v. Arizona [104] were added to this test, according to which a failure to give a warning and notice with regard to the right to consult a lawyer became a ground for declaring a confession inadmissible. Recently the status of the ‘free will’ test has been significantly diminished as a satisfactory criterion for admissibility, in view of the decision of the Supreme Court of the United States in Dickerson v. United States [105]. That case considered the provision of federal law that stated that a confession of an accused is admissible as evidence if it is proved that it was made freely and willingly (18 U.S.C. 3501). The Supreme Court of the United States declared the aforesaid provision of statute void. It can be understood from the judgment of the court that the ‘free and willing’ test does not provide sufficient protection for the right not to incriminate oneself that is enshrined in the Fifth Amendment of the Constitution, and therefore it is incapable of replacing the rules set out in Miranda v. Arizona [104] with regard to the admissibility of defendants’ confessions. In view of the rule in Dickerson v. United States [105], it would appear that in the American legal system the status of the ‘free and willing’ test has been weakened even further as a sole test.

On the other hand, we should point out that in the Canadian legal system, which also adopted the ‘free and willing’ test in case law from the English common law, this test continues to be used even today in order to examine the admissibility of confessions made by defendants (see R. v. Oickle [107], which we shall discuss further below).

28. Unlike the common law countries where the ‘free and willing’ test was adopted in case law, in our legal system this test was enshrined ab initio in statute (see s. 9 of the Evidence Ordinance from the period of the British Mandate, which was replaced in 1971 by s. 12 of the Evidence Ordinance [New Version]). Over the years, several attempts were made to propose comprehensive legislative amendments to the Evidence Ordinance, within which framework it was suggested that the ‘free and willing’ test should be replaced by other criteria for examining the admissibility of defendants’ confessions. But these proposals did not become law (see s. 36 of the draft Evidence Law, 5741-1981, of Prof. U. Yadin, which was published in 34 HaPraklit (1981) 137, at p. 147; the two versions of s. 37 of the draft Evidence Law, 5745-1985, which were drafted by a commission chaired by President M. Landau and published in 16 Hebrew Univ. L. Rev. (Mishpatim) (1986) 3; the Report of the Commission concerning Convictions based solely on a Confession, at pp. 11-19, and the minority opinion of Prof. Kremnitzer, ibid., at pp. 58-64; see also various private draft laws for amending s. 12 of the Evidence Ordinance, in para. 13 supra).

In the case before us, we see no need to discuss the criticisms that have been levelled at the ‘free and willing’ test and the other tests that have been proposed over the years as replacements for this test. The premise for the continuation of our deliberations is that the provisions of s. 12 of the Evidence Ordinance remains on the statute books and its validity is undisputed. In view of this, the question before us is whether, after the enactment of the Basic Law: Human Dignity and Liberty, the interpretation given in case law to the aforesaid provision of law should be changed. Let us now turn to consider this question.

Interpretation of s. 12 of the Evidence Ordinance after the Basic Law

29. The question of the effect of the Basic Law: Human Dignity and Liberty on the interpretation of provisions of law enacted before the Basic Law came into force was considered extensively in the judgment of this court in CrimApp 537/95 Ganimat v. State of Israel [45] and in CrimFH 2316/95 Ganimat v. State of Israel [46]. The Basic Law: Human Dignity and Liberty expressly states that the previous law would remain valid, and therefore the provisions of s. 12 of the Evidence Ordinance remained in force even after the Basic Law was enacted (see s. 10 of the Basic Law). There is also no dispute that the old legislation should be interpreted in the spirit of the Basic Laws. An express statement to this effect was made in s. 10 of the Basic Law: Freedom of Occupation. It is also the interpretation required within the framework of the Basic Law: Human Dignity and Liberty. This was discussed by Justice M. Cheshin, who stated that ‘… the Basic Law ought to serve as an inspiration in interpretation. The legislature planted a bed of roses in the garden of law, and we smell its sweet aroma. We shall interpret laws of the past and the perfume of the Basic Law will inspire us’ (CrimFH 2316/95 Ganimat v. State of Israel [46], at p. 643; emphasis in the original).

In Ganimat v. State of Israel [46] there were admittedly different approaches with regard to the nature and scope of the interpretive effect of the Basic Law on the law that predated it (see the fundamental approach of President Barak in Ganimat v. State of Israel [46], at pp. 652-655, as compared with the position of Justice M. Cheshin, ibid. [46] at pp. 639-643; see also HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [47], at pp. 780-781, per Justice M. Cheshin, and at pp. 786-787, per President Barak). But these differences in approach have no practical significance in the case before us, since even according to the law that prevailed before the Basic Law was enacted, it was possible to reach different interpretive conclusions than the ones that were accepted previously.

30. As stated, the rule of inadmissibility prescribed in s. 12 of the Evidence Ordinance was originally intended to safeguard the credibility of confessions made before persons in authority. Over the years, an interpretive development occurred with regard to the possible reasons underlying this rule. As I have made clear above, the purpose of protecting the rights of persons under interrogation was recognized in our case law before the Basic Laws concerning human rights were enacted (see the interpretive approach of President Landau and Justice Goldberg in para. 25 supra). The recognition of this purpose is consistent with the general interpretive premise in our legal system that every piece of legislation is intended to uphold and protect human rights. Notwithstanding, before the Basic Laws there was no unanimity in the case law of this court with regard to the question whether and in what circumstances the purpose concerning the protection of the rights of the person under interrogation should take precedence over the other purpose of safeguarding the credibility of defendants’ confessions. Even according to the interpretive approach that saw fit to attribute significant weight to the protection of the rights of a person under interrogation, the inadmissibility of the confession was based, inter alia, on an irrebuttable assumption that a confession obtained by improper methods is not a true confession (see the remarks of President Landau in Hirsch v. State of Israel [34], at p. 200; see also Muadi v. State of Israel [36], at pp. 223-224, per Justice Goldberg).

It would appear, therefore, that before the enactment of the Basic Laws, this court recognized the protection of the rights of the person under interrogation as a possible purpose of the rule of inadmissibility provided in s. 12 of the Evidence Ordinance; notwithstanding, the aforesaid purpose was not regarded as a main and independent purpose of the aforesaid s. 12, and the conceptual centre of gravity of the rule of inadmissibility under discussion was the concern that false confessions might be admitted in evidence (see in this regard, Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra, at p. 157; M. Mountner, ‘The Decline of Formalism and the Rise of Values in Israeli Law,’ 17 Tel-Aviv University Law Review (Iyyunei Mishpat) (1993) 503, at p. 549).

31. When the Basic Law: Human Dignity and Liberty was enacted, the status of human rights enshrined therein was elevated to a constitutional super-legislative status. This created a change in our normative status. This change is reflected first and foremost in the possibility of judicial review of the constitutionality of laws that have been passed since the enactment of the Basic Laws. Notwithstanding, this in itself does not exhaust the whole scope of the effect of the aforesaid Basic Laws. The spirit and principles of the Basic Laws cast their light on all branches of law and influence basic concepts and basic outlooks that exist within their framework. Inter alia, as aforesaid, they influence the interpretation of legislation that was enacted before the Basic Laws concerning human rights.

In this context, it should be emphasized that from its earliest days this court recognized rights of the individual and took them into account within the framework of its interpretation of existing legislation. Even before the enactment of the Basic Laws concerning human rights this court held that ‘… the purpose of every piece of legislation is to uphold and safeguard basic rights and not to violate them’ (per Justice Barak in CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [48], at p. 561). Notwithstanding, it appears that after the enactment of the Basic Laws, emphasis has been placed on the duty to take into account the rights enshrined in them within the framework of the interpretation of existing legislation, and in appropriate circumstances the weight that should be attributed to these rights even increased relative to competing values and public interests. This is the case in general, and it is particularly so in criminal law, which is closely bound to human dignity and liberty.

32. The Basic Law created an opportunity for a new interpretive perspective also with regard to the purpose of the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance. According to the spirit and principles of the Basic Law, the status of the purpose concerning the protection of the rights of the person under interrogation should be strengthened today, so that it becomes a main purpose that stands independently in order to render inadmissible a confession under s. 12 of the Evidence Ordinance. The significance of this is that in appropriate circumstances, of which details will be given below, a confession under the aforesaid s. 12 will be declared inadmissible because of the illegal violation of the rights of the person under interrogation, even when there is no concern with regard to the truth of the confession.

It should be noted that these remarks of mine do not negate the traditional purpose of the rule of inadmissibility under discussion, which concerns safeguarding the credibility of confessions. This purpose remains valid, as a part of the general purpose of the laws of evidence in criminal cases to discover the truth and prevent unsound convictions. Moreover, protecting the rights of the person under interrogation may lead to identifying interrogation methods that are likely to result in false confessions and miscarriages of justice. Notwithstanding, in view of the spirit and principles of the Basic Law, it is possible to determine that the interpretive centre of gravity has changed, and that today the protection of the rights of the person under interrogation is a main and independent purpose — not merely a secondary and ancillary one — for the inadmissibility of confessions under s. 12 of the Evidence Ordinance.

This background gives rise to the question of the rights of the person under interrogation that the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance is intended to protect. This question should be answered with regard to the language and wording of the aforesaid s. 12, with regard to the interpretation of the aforesaid section in case law as it has developed over the years, and in accordance with the spirit and principles of the Basic Law. Taking all of this into account, it appears that the rule of inadmissibility provided in s. 12 of the Evidence Ordinance was originally intended to protect two basic rights that have been recognized in our legal system for a long time, but the Basic Law: Human Dignity and Liberty has made an additional contribution to strengthening their status. The two rights are the right of the person under interrogation to be protected against physical and emotional harm, and the right to the autonomy of free will.

33. The right of an accused to be protected against physical and emotional harm and his right not to be degraded or humiliated more than is necessary as a result of the actual conducting of the interrogation were recognized in the case law of this court already before the enactment of the Basic Law as fundamental basic rights that were included in the ‘judicial charter of rights’ (see the remarks of Justice Barak in HCJ 355/79 Katlan v. Prisons Service [49], at p. 298, and the references cited there). As was noted above, the recognition of these rights affected the interpretation of s. 12 of the Evidence Ordinance before the Basic Law was enacted (see, for example, the interpretive approach of President Landau and Justice Goldberg in para. 25 supra). When the Basic Law: Human Dignity and Liberty was enacted, it was expressly provided therein that ‘There shall be no violation of the life, body and dignity of a human being, in as much as he is a human being’ and that ‘Every human being is entitled to protection for his life, his body and his dignity’ (ss. 2 and 4 of the Basic Law). In view of this, it would appear that there is ample support for the opinion that the right to be protected against physical and emotional harm and the right to be protected against acts of degradation and humiliation that significantly violate a person’s emotional wellbeing have risen to a constitutional super-legislative level as a result of the enactment of the Basic Law (see the remarks of Vice-President Elon in CrimA 3632/92 Gabbai v. State of Israel [50], at p. 490; see also Barak, Constitutional Interpretation, supra, at p. 420).

In view of the purpose concerning the protection of defendants’ rights in interrogations and the spirit of the Basic Law, the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance should be interpreted in such a way that improper interrogation methods that illegally violate the right of the person under interrogation to physical integrity or that humiliate and degrade him beyond what is required as a result of conducting the interrogation, will automatically lead to the inadmissibility of the confession, without it being necessary to examine the effect of the aforesaid interrogation methods on the truth of the confession made in the interrogation. This interpretation is closest in essence to the approach of Justice Goldberg in Muadi v. State of Israel [36], which it would appear is the approach that has been adopted in our case law. Notwithstanding, the nature and scope of the improper interrogation methods that will today be included within the scope of ‘a violation of the humanity of the person under interrogation’ is likely to be wider than in the past. This is because of the interpretive influence of the Basic Law and because of the conventional international law to which Israel is a party (see and cf. the opinion of President Barak in Public Committee Against Torture v. Government of Israel [26]; also see and cf. the minority opinion of Prof. Kremnitzer in the Report of the Commission concerning Convictions based solely on a Confession, at pp. 58-64).

In the circumstances of the appellant’s case, no claim was made that he was subjected to improper interrogation methods of the kind that are capable of humiliating and degrading the person under interrogation or of harming his physical or emotional wellbeing, and therefore this issue does not arise in the case before us.

34. In addition to the protection of the physical and emotional wellbeing of the person under interrogation, s. 12 of the Evidence Ordinance is intended, according to its express language, to protect the autonomy of the accused’s freedom of choice when making his confession in an interrogation (a ‘free and willing’ confession).

The right to the autonomy of free will was recognized in the case law of this court as a basic right of great importance before the Basic Laws of 1992 were enacted. Notwithstanding, it would appear that after the enactment of the Basic Law: Human Dignity and Liberty, the status of the aforesaid right has been strengthened, since it is derived directly from the conception of man as an end and not merely a means, and in view of the possible inclusion of the aforesaid right in the inner circle of the constitutional right to dignity and liberty. This was discussed by Vice-President Or in the following terms:

‘The recognition of the human right to autonomy is a basic element of our legal system, as a legal system of a democratic country… it constitutes one of the main reflections of the constitutional right of every person in Israel to dignity, which is enshrined in the Basic Law: Human Dignity and Liberty. Indeed, it has already been held that one of the expressions of the right to dignity is “… the freedom of choice of every person as a free being,” and that this reflects the approach that “every person… is a world in himself and an end in himself” (per President Barak in Barki Feta Humphries (Israel) Ltd v. State of Israel [47], in para. 3 of his opinion) … The significance of human dignity, in this context, was discussed by President Shamgar in CA 5942/92 A v. B [51], at p. 842, where he said that “Human dignity reflects, inter alia, the ability of a human being as such to formulate his personality freely, as he wishes, to reflect his ambitions and to choose the means of achieving them, to make his voluntary choices, not to be enslaved to arbitrary dictates, to be treated fairly by every authority and by every other individual, to enjoy equality between human beings…”.’ (CA 2781/93 Daaka v. Carmel Hospital [52], at p. 571 {462}).

(On the constitutional status of the right to autonomy of free will, see also the remarks of Justice Goldberg in CFH 2401/95 Nahmani v. Nahmani [53], at pp. 723-724 {389-390}; the remarks of Justice Rivlin in HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [54], at pp. 595-597; the remarks of Justice M. Cheshin in CrimApp 92/00 A v. State of Israel [55], at p. 250; A. Barak, ‘Human Dignity as a Constitutional Right,’ 41 HaPraklit (1993) 271, at pp. 277-279; H.H. Cohn, ‘The Values of a Jewish and Democratic State: Studies in the Basic Law: Human Dignity and Liberty,’ HaPraklit Jubilee Book 9 (1994), at p. 38; it should be noted that according to the approach of Y. Karp, the essence of the right to autonomy of free will — as opposed to the rights derived from it — is included within the framework of the inner circle of the constitutional right to dignity and liberty. See Y. Karp, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty,’ 25 Hebrew Univ. L. Rev. (Mishpatim) 129 (1995), at p. 142).

In view of the aforesaid, a significant and serious violation of the autonomy of will and the freedom of choice of the defendant in making his confession in an interrogation will lead to the inadmissibility of the confession under the aforesaid s. 12. It should be emphasized that in these remarks of mine I am not saying that every violation of a protected right of the person under interrogation will necessarily lead to the inadmissibility of his confession under s. 12 of the Evidence Ordinance. Such an interpretation would excessively harm the competing values concerning the discovery of the truth, fighting crime and protecting public safety, and it cannot therefore be adopted. The wording and language of s. 12 of the Evidence Ordinance testify that the rule of inadmissibility enshrined therein is intended to protect against a significant violation of the autonomy of will of the accused when making his confession. Therefore a violation of the aforesaid kind will lead to the inadmissibility of a confession under the aforesaid s. 12, provided that this is required by the circumstances of each case on its merits. This interpretive conclusion is consistent with the case law of this court prior to the Basic Law, according to which in every case, according to its circumstances, the court should examine whether the use of the improper interrogation method led to the accused being deprived of free will and the ability to choose whether to make his confession (see the remarks of Justice Goldberg in Muadi v. State of Israel [36], at pp. 224-225; the remarks of President Y. Kahan, ibid. [36], at pp. 251-252; the remarks of Justice Elon, ibid. [36], at pp. 263-268). Notwithstanding, whereas in the past the justification given for the inadmissibility of a confession under s. 12 relied on the assumption that denying the freedom of choice of the person under interrogation necessarily led to a concern as to the truth of his confession, in accordance with the spirit of the Basic Law, it should be held that the protection of the freedom of will of the person under interrogation today constitutes a purpose in its own right and a weighty and independent reason for declaring the confession inadmissible under s. 12 of the Evidence Ordinance.

35. Furthermore it should be noted that the right to autonomy of free will is one of the main reasons for protecting the right not to incriminate oneself and the right to remain silent. Therefore there are those who think that the rule of inadmissibility provided in s. 12 of the Evidence Ordinance was intended to protect these rights and the right to consult a law that is ancillary thereto (see, for example, Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra, at pp. 156 and 179; Y. Kedmi, On Evidence (2004, vol. 1), at p. 22). Admittedly, an illegal violation of the aforesaid rights within the framework of the interrogation process will constitute a weighty consideration when examining the admissibility of a confession under s. 12 of the Evidence Ordinance. This is because a violation of these rights may significantly violate the freedom of will and choice of the person under interrogation when making his confession. Thus, for example, there will be grounds to declare a confession inadmissible under s. 12 in circumstances where the accused was not warned of his right to remain silent and not to incriminate himself in the interrogation and of his right to consult a lawyer and he was not de facto aware of these rights, in such a way that he was deprived of the ability to chose whether to cooperate with his interrogators.

Nothing in the aforesaid derogates from the fact that the protection of the right to remain silent and the right to consult a lawyer are based on additional reasons to the protection of the autonomy of will of the person under interrogation. The balance between the various reasons underlying these rights assists in determining their boundaries and deciding the extent to which they are protected (for the various reasons for protecting a suspect’s right to remain silent and his right not to incriminate himself in his interrogation, see State of Israel v. Sharon [16], at p. 759, per Vice-President Or; see also B. Steinberg, ‘What Remains of the Warning about the Right to Remain Silent?’ 48 HaPraklit (2005) 163, at pp. 165-169; E. Gross, ‘The Right not to Incriminate Oneself — Is it really a Landmark in the Struggle of the Enlightened Man for Progress?’ 7 Mehkarei Mishpat (1989) 67, at pp. 172-181; Lafave and Israel, Criminal Procedure, supra, at p. 43; A.R. Amar and R.B. Lettow, ‘Fifth Amendment First Principles: The Self Incrimination Clause,’ 93 Mich. L. Rev. (1995) 857; for the various reasons underlying the protection of the right of a person under arrest to consult a lawyer, see para. 14 supra and the references cited there).

In view of the aforesaid, I am unable to accept the argument of counsel for the appellant that s. 12 of the Evidence Ordinance was intended to protect the full scope of the right to remain silent and the right to consult a lawyer, so that a violation thereof will necessarily lead to the inadmissibility of a confession under the aforesaid s. 12. As stated, according to the language and purpose of s. 12, it is intended to protect against a significant violation of the autonomy of free will of the person under interrogation. Consequently an illegal violation of the right to remain silent or the right to consult a lawyer will lead to the inadmissibility of a confession of an accused within the framework of the aforesaid s. 12 only when that violation is of such a nature and strength in the circumstances of the case that it seriously violates the freedom of choice and the autonomy of will of the person under interrogation in making his confession. Thus, for example, an illegal failure of the interrogators to give a warning about the right to remain silent in circumstances where it is proved that the accused was aware de facto of his right to remain silent will not lead to the inadmissibility of his confession under s. 12 of the Evidence Ordinance, since in these circumstances the ability of the accused to choose whether to cooperate with his interrogators is not significantly impaired (see the opinion of Justice Strasberg-Cohen in CrimA 5825/97 Shalom v. State of Israel [56], at pp. 944-945; also see and cf. the position of Prof. Bendor who is of the opinion that a confession should be inadmissible under s. 12 of the Evidence Ordinance only when there is a causal link between not giving the warning about the right to remain silent and the making of the confession in the interrogation; A. Bendor, ‘Inducing a Confession of an Accused and its Admissibility — Ends, Means and What Lies Between Them,’ 5 Pelilim (1996) 245, at pp. 265, 269).

36. In summary, even though I accept the position of counsel for the appellant that the provisions of s. 12 of the Evidence Ordinance should be interpreted in the spirit of the Basic Law, we should reject their argument that not giving a statutory warning with regard to the right to remain silent or the right to consult a lawyer necessarily leads to the inadmissibility of a confession under the aforesaid s. 12. Even though a violation of the aforesaid rights will constitute a weighty consideration within the framework of considering the admissibility of the confession, it is not a sole or decisive criterion. According to the language and purpose of the aforesaid s. 12, a confession should be declared inadmissible thereunder only when the illegal violation of the right to remain silent or the right to consult a lawyer created a significant and serious violation of the autonomy of will and freedom of choice of the accused when making his confession. The existence of such a violation will be examined in accordance with the circumstances of each case on its merits. In any case, it should be emphasized that a violation of the right to remain silent or the right to consult a lawyer in an interrogation, even in circumstances where it does not lead to the inadmissibility of the confession, is likely to detract from its weight as evidence.

37. With regard to the circumstances of the appellant’s case, there is no dispute between the parties before us that the military interrogator illegally refrained from giving notice of the right to consult a lawyer, and that in the circumstances of the case the aforesaid omission amounted to a violation of the actual right to consult a lawyer (see para. 19 supra). As I shall explain later, in the circumstances of this case a significant violation of the appellant’s right to consult a lawyer has been proved, inter alia in view of the determination of the court martial that the interrogator deliberately refrained from giving the statutory notice of the aforesaid right. Notwithstanding, for the purpose of examining the admissibility of the confession under discussion in accordance with s. 12 of the Evidence Ordinance, the question that should be addressed is whether the free choice of the appellant was impaired when he made his confession. In this matter, we must take into account that before his statement was taken, the appellant was warned that he had the right to remain silent in his interrogation, according to the wording of the warning set out in s. 267 of the Military Jurisdiction Law. The appellant was aware, therefore, of the right to remain silent when his statement was taken. It should also be noted that after the appellant consulted the military defence lawyer, he chose to respond to the questions of the interrogator when he made his second statement (prosecution exhibit 5). In the circumstances, it cannot be said that the failure to give the statutory notice of the right to consult a lawyer led to a significant violation of the appellant’s autonomy of will and freedom of choice when making his first confession, such that it requires the inadmissibility of the confession under the aforesaid s. 12 (see and cf. CrimA 5203/98 Hasson v. State of Israel [57], at p. 283, where Justice Naor held that in view of the fact that the accused in that case was warned before the interrogation of his right to remain silent and in view of the other circumstances of the case, the fact that his right to consult with a lawyer was violated did not render his confession inadmissible under s. 12 of the Evidence Ordinance).

It follows that even though in the case of the appellant it has been proved that there was an illegal violation of the right to consult a lawyer because of the failure to warn him of the aforesaid right before taking his statement, it should not be said that in the circumstances of the case there was a significant violation of the right to autonomy of will and freedom of choice within the framework of the rule of inadmissibility provided in the aforesaid s. 12. For this reason, we should not intervene in the decision of both instances of the court martial not to declare the appellant’s confession inadmissible under s. 12 of the Evidence Ordinance.

Notwithstanding, our deliberations do not end here. A separate question that should be considered is whether the failure to give the statutory notice with regard to the appellant’s right to consult a lawyer should lead to the inadmissibility of his confession on the basis of a case law doctrine that illegally obtained evidence should be inadmissible, outside the framework of the aforesaid s. 12, as argued by counsel for the appellant. Let us now turn to examine this issue.

A case law doctrine that illegally obtained evidence should be inadmissible in criminal proceedings

38. As I stated at the outset, one of the main arguments raised within the framework of the notice of appeal filed before us was that even if s. 12 of the Evidence Ordinance does not render the confession of the appellant inadmissible, it should be declared inadmissible by virtue of a case law doctrine that illegally obtained evidence is inadmissible. According to this argument, this court should adopt a judicial doctrine of inadmissibility to this effect in view of the Basic Law: Human Dignity and Liberty. It should immediately be stated that this doctrine is not restricted to the confessions of an accused, and its application is a general one, to all types of evidence in the criminal proceeding that were obtained illegally by the law enforcement authorities. Later we shall address at length the question of what is evidence that has been obtained ‘illegally.’ At this stage of the deliberation and without exhausting the issue, we will point out that we are speaking of evidence that was obtained by investigation methods that are contrary to a provision of statute, regulation or binding procedure, or by means of an illegal violation of a protected basic right.

The argument concerning the need to adopt a case law doctrine of inadmissibility raises several complex questions that should be addressed. The order of addressing these questions will be as follows: first we will discuss the legal position with regard to the admissibility of illegally obtained evidence before the Basic Laws were enacted. Against this background, we will turn to examine the question whether in the new normative reality that was created by the enactment of the Basic Law: Human Dignity and Liberty, there is a basis for adopting a case law doctrine that evidence should be inadmissible because of the way in which it was obtained. For the reasons that will be set out below, our answer to this question is yes. In view of this, we will turn to examine the nature, scope and framework of this doctrine, and to determine the proper criteria for declaring evidence inadmissible thereunder. We will end our deliberations by applying the conditions of this doctrine to the circumstances of the appellant’s case.

The admissibility of illegally obtained evidence before the Basic Laws

39. The starting point for our discussion of the question of the admissibility of illegally obtained evidence lies in the fact that the Israeli legislature has refrained from making any general and express legislative arrangement on this issue. Notwithstanding, in three special provisions of law the legislature has provided concrete rules of inadmissibility with regard to evidence that was obtained in an improper manner: the first is s. 12 of the Evidence Ordinance that we have discussed extensively above. The second is s. 13 of the Eavesdropping Law, 5739-1979. Originally this provision of statute provided an absolute rule of inadmissibility for statements that were recorded by means of eavesdropping carried out contrary to the provisions of the law. In 1995 s. 13 was amended in a manner that gave the court discretion not to declare such evidence inadmissible, on the conditions and in the circumstances set out in the section. Section 13(a) in its amended wording provides as follows:

‘Evidence        13. (a) Statements recorded by means of an eavesdropping contrary to the provisions of this law… shall not be admissible as evidence in court, except in one of the two following cases:

                (1) In a criminal proceeding concerning an offence under this law;

                (2) In a criminal proceeding concerning a serious felony, if the court declared it admissible after it was persuaded, for special reasons of which it shall give details, that in the circumstances of the case the need to discover the truth outweighs the need to protect privacy. An eavesdropping made illegally by someone who is entitled to receive a permit for eavesdropping shall not be admissible as evidence under this paragraph unless it was made by mistake in good faith, in an apparent use of lawful permission.’

A third statutory rule of inadmissibility is provided in s. 32 of the Protection of Privacy Law, 5741-1981, according to which: ‘Material obtained by means of a violation of privacy shall be inadmissible as evidence in court, without the consent of the injured party, unless the court permits the use of the material, for reasons that shall be recorded, or if the person who committed the violation, who is a party to the proceeding, has a defence or exemption under this law.’ The aforesaid s. 32 therefore provides that, as a rule, evidence that was obtained by means of an illegal violation of privacy shall be inadmissible. Notwithstanding, the rule of inadmissibility is a relative one in the sense that it allows such evidence to be admitted, if the injured party gave his consent thereto, if the court, at its discretion, allowed the evidence to be admitted for reasons that shall be recorded, or when the person who committed the violation has a defence or exemption under the law.

Case law has accepted the opinion that the rules of inadmissibility enshrined in the aforesaid provisions of statute are rare exceptions in our legal system. In the words of Justice Elon: ‘… these provisions are exceptions that are incapable of changing the rule…’ (Muadi v. State of Israel [36], at p. 262; see also CrimA 480/85 Kurtam v. State of Israel [58], at p. 691, per Justice Bach; HCJ 3815/90 Gilat v. Minister of Police [59], at p. 420, per Justice S. Levin; and CrimA 1302/92 State of Israel v. Nahmias [60], at p. 321, per Justice Bach, and at p. 341, per Justice Mazza).

The outlook that was accepted in the case law of this court before the Basic Laws was that as long as statute does not provide otherwise, relevant evidence should not be declared inadmissible because of the illegality of the means used to obtain it. The case law in this regard was summarized by Justice Elon in the following terms: ‘In the Israeli legal system, it is accepted and undisputed case law that evidence that is valid and credible in itself but that was obtained by improper and illegal methods, is admissible…’ (Muadi v. State of Israel [36], at p. 262; for similar remarks, see also CrimA 476/79 Boulos v. State of Israel [61], at pp. 801-802; per Justice Shamgar; CrimA 16/82 Malka v. State of Israel [62], at pp. 317-320. per Justice M. Bejski; FH 9/83 Appeals Court Martial v. Vaknin [63], at p. 855, per Vice-President Elon). According to this approach, illegality is a consideration with regard to determining the weight of the evidence, and in exceptional cases it may reduce its weight to nil; but it is incapable of affecting the admissibility of the evidence.

The aforesaid case law rule of this court was consistent in the main with the traditional approach adopted by English common law, according to which illegality in obtaining evidence does not make the evidence inadmissible but merely affects its weight. Admittedly, in the 1950s English law adopted a case law rule that authorized the courts to declare evidence inadmissible at their discretion, in circumstances where admitting it would be unfair to the accused (see Kuruma v. R. [110], at p. 204). But the aforesaid ruling was almost never applied in English case law, and the discretion to declare evidence inadmissible within this framework was exercised in rare and exceptional cases only (see in this regard C. Tapper, Cross and Tapper on Evidence (ninth edition, 1999), at p. 498; see also Boulos v. State of Israel [61], at pp. 800-802, per President Shamgar; Vaknin v. Appeals Court Martial [5], at pp. 401-402, per Justice Bach; and Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ supra, at pp. 988-990).

40. The case law rule whereby the manner of obtaining the evidence does not affect its admissibility is based mainly on two reasons. First, our case law is governed by the outlook that the main purpose of the rules of evidence in criminal proceedings is to discover the factual truth in order to convict the guilty and acquit the innocent (see, for example, the remarks of Justice Barak in CrimA 951/80 Kanir v. State of Israel [64], at pp. 516-517; the remarks of Justice Or in State of Israel v. Mesika [25], at p. 681). It should be emphasized that discovering the factual truth was not always regarded as the sole or absolute purpose of the rules of evidence in criminal proceedings, since there exist competing interests and values that we shall discuss later. Nonetheless, according to the approach that was accepted by us before the enactment of the Basic Laws, the weight of the purpose concerning the discovery of the factual truth was considerable, such that any departure from it in order to protect competing values and interests was regarded as an exception, which some authorities thought required express legislation (see the remarks of Justice Elon in Muadi v. State of Israel [36], at pp. 259-262). Consequently, the approach adopted in case law was that, as a rule, information that was relevant to determining innocence or guilt should not be withheld from the court, and therefore the manner of obtaining evidence does not affect its admissibility, but only its weight.

Second, until the 1980s our rules of evidence were characterized by formal rules of admissibility that were intended to safeguard the credibility of the content of evidence presented to the court. The hearsay evidence rule was one of the main rules of inadmissibility in this context, and it was originally introduced into our legal system from English common law. From the 1980s onward, a new trend began to develop in our legal system, in parallel to changes that also took place in the Anglo-American legal systems, systems whose tradition is similar to ours. The essence of this trend was a reduction in the formal exceptions to the admissibility of evidence, in order to give the court the power to determine their credibility and weight. According to this approach, the curtailing of the rules of admissibility was needed in order to discover the truth and do justice, since it could allow the flow of relevant information to the court that would consider the credibility of the information in the circumstances of each case on its merits. The aforesaid trend was given expression in legislation with the enactment of s. 10A of the Evidence Ordinance, which provides a statutory exception to the rule against hearsay evidence; it was also expressed in case law that restricted, by means of interpretation, the scope of the various rules of inadmissibility in our legal system. This was discussed by President Shamgar, who said that:

‘The trend that is expressed in the development of law as reflected in Israeli statute and case law, like that in other countries where the Anglo-American outlook prevails, is to restrict the exceptions to the admissibility of evidence in order to give the court the power to decide the weight of the evidence. In other words, instead of a barrier of inadmissibility, whose scope is gradually being reduced, the Anglo-American legal world has developed an approach that prefers an objective examination of every relevant piece of evidence by the court. Formalistic exceptions are replaced by an examination of trustworthiness. In this way the Anglo-American and continental legal systems have drawn closer together’ (CrimFH 4390/91 State of Israel v. Haj Yihya [65], at p. 671).

This approach has particular strength in the Israeli legal system, which is based on professional verdicts rather than decisions made by juries. Instead of admissibility barriers, preference has therefore been given to an approach that favours a substantive examination of every relevant piece of evidence by the court. This approach is consistent with the trend in all branches of our legal system and it reflects a transition from strict formal rules to giving weight to basic principles in the law, by exercising judicial discretion. This trend has been described in case law and professional literature as a changeover ‘from formalism and strict rules to flexibility and judicial discretion’ (see the remarks of Justice Cheshin in CrimA 6147/92 State of Israel v. Cohen [66], at p. 80; and see also FH 23/85 State of Israel v. Tubul [67], at pp. 331-340, per President Shamgar, and at p. 354, per Justice Barak; the remarks of Justice Kedmi in CA 703/86 Bernstein v. Attorney-General [68], at pp. 532-533; the remarks of Justice Or in State of Israel v. Mesika [25], at pp. 680-681 and the references cited there; my remarks in CA 2515/94 Levy v. Haifa Municipality [69], at pp. 730-733; the remarks of Justice Strasberg-Cohen in HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [70], at pp. 760-761). The trend of abandoning rules of admissibility in favour of a substantive assessment of evidence also in some degree affected the fact that this court adopted its fundamental position that the way in which evidence is obtained is unrelated to the question of its admissibility.

41. In addition, we should point out than the central status of the value of discovering the truth and the trend of abandoning rules of admissibility in favour of an examination of the evidence according to its nature and weight have also had an effect on the interpretive trend for the rules of inadmissibility provided in statute. With regard to the interpretation of s. 12 of the Evidence Ordinance, before the Basic Laws this court gave significant interpretive weight to the purpose concerning the safeguarding of the credibility of defendants’ confessions as a part of its outlook that discovering the truth is a central value in our legal system (see para. 30 supra). With regard to the Eavesdropping Law and the Protection of Privacy Law, the interpretation given to the provisions of the laws that introduced rules of inadmissibility limited the scope of these rules in a way that was consistent with the trend of restricting admissibility barriers for evidence in our legal system (see, for example, Appeals Court Martial v. Vaknin [63], and Kurtam v. State of Israel [58], with regard to the interpretation of the expression ‘other harassment’ in s. 2 of the Protection of Privacy Law; see also: Gilat v. Minister of Police [59], with regard to the interpretation of the provisions of the Eavesdropping Law).

42. In summary, the Israeli legislature refrained from providing a complete and express arrangement with regard to the question of the admissibility of illegally obtained evidence. Before the Basic Laws, the position that was adopted in case law was that in general, as long as there was no contrary provision in statute, illegality in the obtaining of a relevant piece of evidence did not affect the question of its admissibility but only its weight. This position was based on the legal tradition that we inherited from English common law, and also on reasons of reducing admissibility barriers in our legal system and giving significant weight to the purpose of discovering the truth in criminal proceedings.

In summary of this part of my opinion, it should be noted that the interpretive position of this court, before the Basic Laws, with regard to the admissibility of evidence that was obtained illegally was based on reasons of judicial policy and not on reasons of jurisdiction. There are a considerable number of judgments in which the court warned that if the illegality in obtaining evidence continued, them ‘… it is possible that we ought to consider a change in case law and decide that an illegally obtained confession should be inadmissible…’ (per Justice Etzioni in Zohar v. State of Israel [40], at p. 329). Justice Barak also addressed this matter in CrimA 260/78 Saliman v. Attorney-General [71], when he said that:

‘We are aware of the many difficulties facing the police in their war against crime, but every care must be taken that in this war the police do not cross the line, with the result that those who are acting in the name of the law are breaking it. It should be emphasized that the system practised in Israel is not the only possible system that can be adopted, and we have the power to change it’ (ibid. [71], at p. 207; emphasis supplied; see also in this context the remarks of Justice H.H. Cohn in Abu-Madijem v. State of Israel [35], at pp. 381-383).

These remarks are capable of showing that this court has always regarded itself as having the power to determine that illegality in obtaining evidence may make it inadmissible; notwithstanding, in view of the reasons that we elucidated above, the court chose to refrain from making such a ruling, and in appropriate cases it thought it sufficient to reduce the weight of the evidence to nil as a result of the illegality that was involved in obtaining it (see, for example, CrimA 559/77 Meiri v. State of Israel [72], where the court attributed negligible weight to the results of a photograph identity parade that was conducted in the absence of defence counsel).

We should also point out that in a series of judgments it has been held that in our legal system we should not adopt the rules of inadmissibility of evidence practised in the American legal system, known as ‘the doctrine of the fruit of the poisonous tree’ (see, for example, Abu-Midjem v. State of Israel [37], at pp. 537-538, per President Landau; Boulos v. State of Israel [61], at p. 801, per President Shamgar; Muadi v. State of Israel [36], at pp. 261-262, per Justice Elon; Appeals Court Martial v. Vaknin [63], at p. 852, per President Shamgar; CrimA 2286/91 State of Israel v. Eiloz [73], at p. 304, per President Shamgar; see also Smirk v. State of Israel [18], at p. 555). Later in our deliberations we will address the aforesaid American doctrine. But at this stage of our deliberations I see fit to point out that even though this court rejected in its case law the American rules of inadmissibility which are regarded in our legal system as a departure from the proper balance between the relevant interests and rights in the criminal proceeding, our case law has not ruled out the possibility of adopting other doctrines that render evidence that was obtained illegally inadmissible, which are of a different nature or have a different scope or framework from those of the American doctrine.

The conflicting interests in the issue of the admissibility of illegally obtained evidence, and the effect of the Basic Law on determining the proper point of balance between them

43. We must decide the question whether in view of the Basic Law: Human Dignity and Liberty, a change is required in the fundamental case law rule that the manner of obtaining a piece of evidence does not affect its admissibility. This issue is a part of a wider question that concerns the interpretive effect of the Basic Law: Human Dignity and Liberty on the rules of evidence that apply in criminal proceedings.

There is no dispute that the main purpose of the criminal proceeding is to determine innocence or guilt. In the words of Justice Barak: ‘The criminal proceeding is a harmonized and balanced set of norms that is intended to give effect to the substantive criminal law. The purpose of the criminal proceeding is to bring about the acquittal of the innocent and the conviction of the guilty’ (CrimA 639/79 Aflalo v. State of Israel [74], at p. 575; see also Barki Feta Humphries (Israel) Ltd v. State of Israel [47], at p. 784, per President Barak). This purpose does not constitute a special interest of the individual who is facing trial but an interest of society as a whole. An erroneous acquittal, and certainly a false conviction, harm both the doing of justice and the appearance that justice is being done, and it may undermine public confidence in the ability of the judicial authority to do justice to the individual and to society.

44. Discovering the factual truth is a main method of doing substantive justice in criminal cases. Discovering the truth assists the court in determining innocence or guilt, and it thereby contributes to realizing the goals of the criminal proceeding, namely the fight against crime, protecting public safety and protecting the rights of actual or potential victims of crime. The need to further these values became stronger as a result of the increase in the level of crime and the degree of sophistication of the methods used by criminals in order to carry out criminal acts and hide them from the law enforcement authorities. In view of all this, discovery of the factual truth has always been the dominant purpose of the rules of evidence in the criminal proceeding (see and cf. A. Barak, ‘On Law, the Administration of Justice and Truth,’ 27 Hebrew Univ. L. Rev. (Mishpatim) (1996) 11).

Notwithstanding, discovery of the truth was never the absolute or sole purpose of the rules of evidence, since there exist competing interests and values that are also worthy of protection. Therefore the rules of evidence recognize the importance of the value of discovering the truth, but also the relative nature of this value. In the words of the English scholar, Prof. Ashworth, ‘No system of criminal justice values truth above all other considerations’ (A.J. Ashworth, ‘Excluding Evidence as Protecting Rights’ [1977] Crim. L. Rev. 723, at pp. 732-733). Admittedly, the values and interests that affect the formulation of our rules of evidence are varied. Without purporting to exhaust them, we can mention that some of the rules of evidence practised in our legal system are based on reasons of legal policy, such as the rules of privilege whose purpose is to protect moral or professional undertakings or essential public interests, such as state security or public safety. There are rules of evidence that are based on grounds of convenience, speed and efficiency in legal procedure, such as presumptions in evidence. Many characteristics of our rules of evidence are founded on our legal tradition and the adversarial legal system practised in Israel, in which the task of bringing evidence is usually the duty of the litigants.

All of the values and interests that affect the formulation of our rules of evidence require a balancing act that is likely to lead to the creation of a disparity between reality as it is determined by the court (‘legal truth’) and reality as it truly is (‘factual truth’). The aforesaid disparity was addressed by Vice-President Elon in the following terms:

‘The legal system tries to adapt its principles, in so far as possible, to the truth of reality and the judicial authority implements its methods of investigation in order to reach, in so far as possible, the factual truth… but the factual truth is not always necessary the same as legal truth. These two truths are relative and not always identical, and, what is more, they are also not opposed to one another. For the legal system knows, and the judge is aware, that the point of origin, the methods of clarification, the nature of the norms and the rules of decision in the legal world and the work of administering justice are different from those in the research of historical fact, and from this they know and are aware that there are cases where different conclusions and “truths” are obtained by each of them’ (CA 1354/92 Attorney-General v. A [75], at pp. 744-745, and the references cited there; see also CA 61/84 Biazi v. Levy [76], at para. 1, per Justice Elon).

45. The values that affect the formulation of the rules of evidence also include protected human rights. The protection of human rights constitutes a purpose in itself in our legal system, and it affects the shaping of all branches of law, each according to its nature, purposes and characteristics. The rules of evidence in criminal proceedings are not an exception in this regard. Even before the Basic Laws, the rules of evidence in criminal proceedings were shaped by the purpose of protecting the rights of the accused.

The purpose of protecting the rights of the accused and the purpose of discovering the factual truth both serve the supreme purpose of the law that concerns the doing of justice and preventing miscarriages of justice in their broadest sense. Often the purpose of properly ascertaining the facts and discovering the truth is consistent with the purpose of protecting the rights of the accused. Thus, for example, the rule of evidence that the prosecution must prove guilt in criminal cases beyond all reasonable doubt and the rules that require, in certain circumstances, additional evidence in order to obtain a conviction in criminal cases serve both the purpose of discovering the truth and the protection of the right of the accused to dignity and liberty. In these contexts, the two aforesaid purposes supplement one another.

Notwithstanding the aforesaid, there are cases where the purpose of protecting the rights of the accused is directly in conflict with the purpose of discovering the truth. The clearest examples of this are the rules that prevent the court from admitting evidence that can indicate guilt, in order to protect the rights of the accused. In this context, we should point out that rules that make evidence inadmissible may be based on one of several possible reasons. There are rules of inadmissibility whose purpose is to prevent information being brought before the court because there is a concern with regard to its reliability. An example of this is the rule that hearsay evidence is inadmissible or the rule that the results of a lie-detector test are inadmissible for the purpose of a conviction in criminal cases. The purpose of these rules of inadmissibility is closely associated with the purpose of discovering the truth. On the other hand, it is possible to point to rules of inadmissibility that are based on reasons that are unassociated with the discovery of the truth but are based on competing social values and interests. In these cases, it is necessary to find the proper balance between the conflicting purposes in accordance with the relative weight of the different values underlying them (see N. Zaltzman, ‘ “Factual Truth” and “Legal Truth” — Withholding Information from the Court to Protect Social Values,’ 24 Tel-Aviv University Law Review (Iyyunei Mishpat) (2001) 263, at pp. 264-265).

As we have said, the question of the admissibility of illegally obtained evidence creates a need to find a proper balance. The dilemma that arises in this context is to choose between all of the rights and interests that concern the public, in its widest sense. On the one hand, the interests of law enforcement, fighting crime and protecting public safety support the view that the admissibility of evidence should not be considered in accordance with the way it was obtained. Thereby, all of the relevant information will be presented to the court, which will be able to clarify the factual truth. The protection of the rights of the victims of the offence also supports a position where all the relevant evidence is brought before the court in order to ascertain the innocence or guilt of the accused. In view of all of the aforesaid interests, it may be argued that acquitting the accused merely because the investigation authorities obtained the evidence against him by improper methods amounts to a ‘windfall’ for the offender that he does not deserve. It may also be argued that such an acquittal comes at a high social price and it may lead to the undermining of public confidence in the criminal process, especially in circumstances where the defect that occurred in the investigation proceedings was technical and negligible. According to this approach, the criminal proceeding should focus on the question whether the charge attributed to the accused has been proved or not. Dealing with investigators who acted illegally in the manner that they obtained the evidence ought to be done in other ways — disciplinary, criminal or civil — and not by declaring illegally obtained evidence to be inadmissible.

On the other hand, no one disputes that the law enforcement authorities should act lawfully in carrying out their duties, while upholding the rights of persons under interrogation and the accused. Moreover, no one disputes that the end of law enforcement does not justify the means of obtaining incriminating evidence. ‘A freedom-seeking democracy is not prepared to allow investigators to use every method in order to disclose the truth’ (per President Barak in Public Committee Against Torture v. Government of Israel [26], at p. 835 {590}). In the words of Justice D. Levin: ‘The authority must not violate the rights to which the accused is entitled in order to bring about his conviction at any price, since the integrity of the judicial process is a essential precondition for the existence of a proper legal system’ (CrimA 2910/94 Yefet v. State of Israel [77], at p. 368). Admitting evidence that was obtained illegally by the law enforcement authorities may in certain cases harm crucial values in our legal system, including the administration of justice, safeguarding the fairness and integrity of the criminal proceeding and protecting the dignity and liberty of the accused. According to a broad conception of the work of dispensing justice, it is not restricted to discovering the truth and a correct application of the law to the facts of a specific case; the administration of justice is also based on the way in which the court reaches its decision in the circumstances of the case before it. Basing a conviction on evidence that was obtained in an illegal manner or by means of a substantial violation of a protected human right allows the investigation authorities to enjoy the fruits of their misdeed and it may create an incentive for improper acts of interrogation in the future. Admitting such evidence may be seen as the court giving approval to the aforesaid illegality and being an accessory, albeit after the event, to the improper conduct of the investigation authorities. Consequently, in certain circumstances admitting the evidence in court may prejudice the fairness and integrity of the judicial process. It is also likely to harm public confidence in the judicial system whose role is to protect the rights of the individual against illegal executive acts. It has been said in our case law, in another context, that: ‘The result of the proceeding is not a judicial decision suspended in mid-air. It also involves a decision with regard to the proper method of conducting the proceeding and protecting the rights of the litigants before the court… a serious procedural defect is to a large extent a serious substantive defect’ (per President Barak in Kuzali v. State of Israel [4], at p. 564). Therefore, the administration of justice in its broad sense and maintaining public confidence in the judicial system, protecting the rights of the accused and the fairness and integrity of the criminal proceeding, and the common interest of both the public and the individual in invalidating illegal investigation methods and deterring the investigative authority from employing similar methods in the future — all of these support the conclusion that, in appropriate circumstances, a significant breach of the law in obtaining the evidence will lead to it being inadmissible, even if there is no concern with regard to the truth of its content.

46. Striking a proper balance between all of the conflicting values involved in the question of the admissibility of illegally obtained evidence is not a simple task. As I shall explain below, before the Basic Laws case law balanced the competing interests by holding that in general, as long as statute did not provide otherwise, the manner of obtaining the evidence did not affect the admissibility of the evidence but only its weight. This gave decisive preference to the value of discovering the truth and the related interest of protecting the public.

The status given to basic human rights since the Basic Laws were enacted in 1992 has given greater weight to the duty to take protected human rights into account, and in appropriate circumstances the weight that should be attributed to them has also grown in comparison to competing values and interests. This is definitely the case in the field of criminal law that directly concerns the right of a person, whether he is accused of an offence or a victim of one, to dignity, liberty and the protection of his person and property. The remarks of President Barak in CrimApp 537/95 Ganimat v. State of Israel [45] in this regard are illuminating:

‘The innovation made by the enactment of the Basic Laws is not… the mere recognition of human rights and the need to maintain a balance between them and the needs of the public as a whole. The innovation made by the Basic Laws lies in the elevation of the normative level of human rights to a constitutional super-legislative status and in determining the elements of the proper balance… It follows that the innovation in the Basic Laws is not the mere existence of a balance. The innovation is in the location of the balancing point. Elevating the status of human rights on the one hand, and reducing the scope of the considerations that may violate them on the other, inherently create a new reciprocal relationship and new balancing points between human rights and violations thereof’ (ibid. [45], at p. 414; emphases supplied).

The spirit of the Basic Laws that affects the interpretive approach with regard to the proper balance between the various purposes of the rules of evidence in criminal cases also has a bearing on the question of the admissibility of illegally obtained evidence. It has already been said in our case law that ‘the Basic Law: Human Dignity and Liberty creates… a new margin for a fair trial within the existing system…’ (per Justice D. Levin in Yefet v. State of Israel [77], at p. 368). Within the framework of this new margin, there is a basis for the claim that in the enforcement of criminal law there are circumstances in which admitting evidence that was obtained by improper methods may undermine the fairness of the proceeding vis-à-vis the accused and the administration of justice in its broad meaning (see and cf. B. Okon and O. Shaham, ‘Due Process and a Judicial Stay of Proceedings,’ 3 HaMishpat (1996) 265, at p. 279). The question of the admissibility of illegally obtained evidence cannot be decided in accordance with the purpose of discovering the truth and fighting crime only. Even though this purpose is the main purpose of the criminal proceeding, today we need a more flexible balancing point that also takes into account the protected rights of the accused and the need to protect the fairness and integrity of the process. Adopting a flexible balancing point for this issue will befit the new normative reality that was created when the Basic Law was enacted, and it will give expression to our commitment to protect the rights of the individual against a violation thereof by the executive authorities. Admittedly, withholding relevant information from the court may lead in these circumstances to a distancing of the ‘legal truth’ from the ‘factual truth.’ But this result is a consequence of the fact that the administration of justice process does not stand alone but is a part of a complex social system of values, interests and rights that need to be balanced (see Zaltzman, ‘ “Factual Truth” and “Legal Truth” — Withholding Information from the Court to Protect Social Values,’ supra, at p. 273).

Against this there will be those who argue that one can point to other legal measures — disciplinary, criminal or civil — in order to address any illegality that is involved in obtaining evidence by the law enforcement authorities. According to that argument, in view of the existence of alternative legal measures, there is no basis for declaring evidence inadmissible on account of the manner of obtaining it, thereby departing from the main value of discovering the factual truth. The response to this argument lies in the fact that the alternative measures are intended to provide relief for the violation that has already been inflicted on the rights of the accused when the evidence was obtained. But those measures do not prevent a disproportionate violation of the fairness and integrity of the criminal process when illegally obtained evidence is admitted in a trial. We will return to this at greater length below.

47. The conclusion that follows from our deliberations hitherto is that in the spirit of the Basic Laws we need to reconsider the question of the admissibility of illegally obtained evidence and adapt it to the new normative reality that created. A more flexible balancing point is required, which, in addition to seeking to realize the purpose of discovering the truth and fighting crime, will give weight to the protection of the accused’s rights as a factor in safeguarding the fairness of the criminal process and as a part of doing justice in the broad sense.

It should be emphasized that this approach does not include a determination that the protection of the rights of the accused has become the main purpose of the rules of evidence or that the purpose of discovering the truth has become less important. The latter purpose remains, as it was, the chief purpose of the rules of evidence in criminal law, for ascertaining innocence or guilt and for protecting public safety against ever increasing crime that has become more sophisticated and organized than in the past. Moreover, as we said above, the criminal proceeding does not focus only on the protection of the rights of suspects and defendants, but also on the protection of human dignity and the rights of the actual and potential victims of the offence. It has already been held in our case law that —

‘The Basic Law: Human Dignity and Liberty brings with it a written constitutional message for every individual in society, but this message is intended for all of society and not merely for the offenders in it. The actual and potential victim of the offence and every innocent citizen are entitled to protection of their dignity and liberty from fear, terror and injury, no less than the accused…’ (per President Shamgar in CrimFH Ganimat v. State of Israel [46], at p. 621; see also the remarks of President Barak, ibid., at pp. 651-652; see also s. 1 of the Rights of Victims of Crime, 5761-2001, which gives statutory expression to the purpose of protecting the human dignity of victims of offences).

Therefore, a more flexible balancing point between all of the competing values relevant to the question of the admissibility of illegally obtained evidence does not mean a blanket exclusion of every piece of evidence obtained in that manner. Moreover, even the Basic Laws did not give an absolute status to the human rights protected by them. The existence of a limitations clause that provides the balancing formula for a violation of constitutional rights shows that the rights protected in the Basic Law are relative and that there are cases where they must give way to competing values and interests. In this spirit, it should be determined that only in appropriate cases, which we shall address later, should the balance between the competing values lead to the exclusion of illegally obtained evidence. I have already said on another occasion that:

‘There is a question whether the right to consult a lawyer as complementary to the right to remain silent has acquired a constitutional status as a result of the Basic Law: Human Dignity and Liberty; an associated question is whether we should today adopt a rule that a confession that was obtained as a result of a breach of the aforesaid rights is inadmissible, and what should be the nature of that rule… these questions are not simple. Their complexity derives, inter alia, from the fact that the aforesaid rights, whether they have acquired a constitutional status or not, are not absolute; the right of the suspect and accused to remain silent, the right to consult a lawyer and the right to a fair trial are countered by important public interests, such as the fight against crime, the protection of state security and public safety, discovering the truth, and even the need to protect the rights of the victim of the offence who was harmed as a result of the criminal act. Therefore, a delicate and complex act of balancing is required between the variety of competing rights, values and interests, in accordance with the values of our legal system and in accordance with the framework of the limitations clause’ (Smirk v. State of Israel [18], at para. 14; emphasis supplied; see also in this regard: Hasson v. State of Israel [57], at p. 283, per Justice Naor; with regard to the need to find a proper balance between the protection of the rights of the suspect and the accused, on the one hand, and the public interest in the elimination of crime and the protection of the victims of crime, on the other, see also the remarks of Justice Strasberg-Cohen, in Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [70], at pp. 755-756).

As we shall explain at length below, the balance between the rights of the accused and the fairness of the criminal process, on the one hand, and the competing values including the value of discovering the truth, the fight against crime and the protection of public safety and the rights of the victims of crime, on the other, leads to the adoption of a doctrine of relative inadmissibility. This will give the court discretion to decide the question of the admissibility of illegally obtained evidence according to the circumstances of each case on its merits and according to criteria that we will discuss below.

48. Adopting such a rule of inadmissibility may prima facie lead to the undermining, to some extent, of the trend that has been seen in our legal system since the 1980s, which mainly involved a transition from rules of inadmissibility to a substantive evaluation of evidence. Notwithstanding, we are speaking of a development that is rooted in the normative infrastructure introduced by the Basic Law to strengthen the trend of having consideration for human rights. We are not speaking of a step that returns our case law back to the period of admissibility barriers that we knew in the past, but of an additional development that is based on the dynamic processes that have been taking place in recent decades. Whereas in the past the strict admissibility barriers were intended to withhold from the court ab initio any evidence whose credibility was in doubt, over the years a trend has developed of restricting the formal rules of admissibility and giving preference to a substantial examination of evidence according to its weight and credibility. As we said above, this recent trend was based, inter alia, on the outlook according to which, as a rule, bringing the relevant information before the court will allow it to form an independent impression of its credibility and probative value, and aid it in realizing the purpose of discovering the truth. This trend was enshrined in the approach that the discovery of the factual truth constitutes a central value in doing justice, and that we ought to aspire to as much consistency as possible between reality as determined by the court and reality as it truly is (see Barak, ‘On Law, the Administration of Justice and Truth,’ supra, at p. 13). The aforesaid aspiration remains unchanged, but in view of the normative reality that was created as a result of the Basic Laws, an additional development is now required in the direction of adopting a doctrine that allows evidence to be declared inadmissible; but this time we are not speaking of formal and strict rules of inadmissibility, of the kind that were practised in the past; according to our approach, the new doctrine of inadmissibility that we must introduce is flexible and based on the need to balance the value of discovering the truth against conflicting values that mainly concern the protection of the rights of the accused and protecting the fairness and integrity of the criminal process. A similar trend has been seen in other common law countries, including England, Canada and Australia. As we shall explain below, formal barriers of admissibility have also been restricted in these countries, and at the same time doctrines have been introduced that allow illegally obtained evidence to be declared inadmissible at the discretion of the court.

49. The current development in our legal system, which leads to the adoption of a doctrine that illegally obtained evidence is inadmissible, does not constitute an unforeseen revolution in the rules of evidence but is an additional step in a gradual process. Before the Basic Laws were adopted, the legislature saw fit to provide rules of inadmissibility in the Eavesdropping Law and in the Protection of Privacy Law with regard to evidence that was obtained by means of an illegal violation of the right to privacy. Moreover, over the years the court has discussed, on several occasions, the possibility that in the future the case law rule will be changed so that illegality involved in obtaining the evidence will make it inadmissible (see para. 42 supra and the references cited there). In view of all this, it is clear that even before the enactment of the Basic Laws concerning human rights, it was possible to change the case law rule according to which the manner in which evidence was obtained did not affect the question of its admissibility, although in practice this court refrained from making such a change. The enactment of the Basic Law: Human Dignity and Liberty has made it more urgent to reconsider the matter, and even provided ‘… an indication of the proper direction of the new development’ (CrimApp 537/95 Ganimat v. State of Israel [45], at p. 415, per President Barak).

Indeed, when the Basic Laws were enacted, trends could be seen in our case law that made the balancing point on the question of illegally obtained evidence more flexible, so that after the Basic Law: Human Dignity and Liberty was passed, there was a change in the interpretive approach of this court with regard to the rule of inadmissibility in s. 13 of the Eavesdropping Law. In the spirit of the Basic Law: Human Dignity and Liberty, this court saw fit to attribute greater weight than in the past to the protection of the constitutional right to privacy, even though this interpretive approach led to broadening of the scope of the rule of inadmissibility provided in the aforesaid s. 13 (see, for example, State of Israel v. Nahmias [60], at p. 331, per Justice Bach, and at pp. 352-353, per Vice-President Barak; see also in this regard the remarks of President Barak in CrimA 1668/98 Attorney-General v. President of Jerusalem District Court [2002] IsrSC 56(1) 625, at pp. 631-632). It should be noted that the aforesaid trend, which attributes greater weight than in the past to the duty to take the rights of the individual into account within the framework of the interpretation of the statutory rules of inadmissibility, is very much in accord with the interpretation that we proposed above with regard to the rule of inadmissibility provided in s. 12 of the Evidence Ordinance. It may be assumed that the aforesaid interpretive trend will also, in the future, influence the interpretation of the rule of inadmissibility provided in s. 32 of the Protection of Privacy Law, but we can leave the consideration of this matter until it is required (see, in this regard, Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ supra, at p. 1024, footnote 150; see also Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ supra, at pp. 79-83).

Moreover, in a series of cases decided after the enactment of the Basic Law, this court spoke positively of the possibility of adopting a relative doctrine of the inadmissibility that would allow illegally obtained evidence to be declared inadmissible in appropriate circumstances (see my remarks in Smirk v. State of Israel [18], at pp. 546 and 555; Hasson v. State of Israel [57], at p. 283, per Justice Naor; my remarks in CrimA 2180/02 Kassem v. State of Israel [79], at p. 654; and see the comments on these remarks in CrimA 9970/03 Deri v. State of Israel [80], at para. 6 of the opinion of President Barak; CrimApp 6689/01 Migdalani v. State of Israel [81], at pp. 176-177, per Justice Rivlin; HCJ 266/05 Pilant v. Gen. Efroni [82], at para. 3C of the opinion of Justice Rubinstein; for judgments of lower courts that support the adoption of such a doctrine of inadmissibility, see, for example, CrimC (Naz) 511/97 State of Israel v. Odeh [102]; CrimC (TA) 4598/01 State of Israel v. Ben-Shushan [103]). Support for adopting in our legal system a doctrine of inadmissibility of illegally obtained evidence has also been expressed in the academic literature of many scholars (see, in this regard, Gross, ‘The Procedural Rights of the Suspect or the Accused under the Basic Law: Human Dignity and Liberty,’ supra, at p. 180; Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra; A. Barak, ‘The Constitutionalization of the Legal System following the Basic Laws and its Ramifications on (Substantive and Procedural) Criminal Law,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 5, at pp. 23-24); E. Harnon, ‘Illegally Obtained Evidence — Has the Legal Position Changed following the Basic Law: Human Dignity and Liberty,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 139; Zaltzman, ‘ “Factual Truth” and “Legal Truth” — Withholding Information from the Court to Protect Social Values,’ supra; Y. Shahar, ‘Criminal Procedure,’ Israel Law Yearbook 1992, 3; Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ supra, at pp. 79-83).

Thus we see that the adoption of a doctrine of inadmissibility for illegally obtained evidence does not constitute a revolution that is foreign to our legal system; rather it is a desirable and expected development. There is no doubt that the Basic Law paved the way for the required change in thinking that made it possible to adopt such a doctrine. Moreover, the provisions of the Basic Law may serve as a possible basis for enshrining this doctrine normatively, which I shall explain later.

Adopting a judicial doctrine of inadmissibility

50. The Chief Military Prosecutor and the attorney-general argued in their written summations that even if there is a basis for adopting a doctrine in our legal system that makes illegally obtained evidence inadmissible, it is not the role of this court to order this by means of judicial legislation. According to them, the case law that the manner of obtaining evidence does not affect the question of its admissibility is well-established case law of many years’ standing, and therefore any change to it ought to be made only by the legislature. It should be emphasized that the prosecution does not dispute the fact that case law does not constitute a ‘law’ within the meaning of this term in the retaining of laws provision set out in s. 10 of the Basic Law. There is therefore no dispute between the parties before us that the case law with regard to the admissibility of illegally obtained evidence may be changed in the spirit of the Basic Law. The main argument of the prosecution in this context is that even though this court is competent in principle to order a change of the aforesaid case law, it ought to refrain from doing so until the legislature has stated its express position on the subject.

It is possible that the doctrine of inadmissibility of illegally obtained evidence should have been introduced by the legislature. For this reason, we even waited before giving our judgment, in the hope that the matter would be regulated in legislation of the Knesset (see para. 13 supra). But since the draft laws on this matter have not matured into legislation from the time the appeal was filed until today, there is no alternative to making a judicial decision on the question whether the case law rule that has prevailed hitherto in our legal system until now, according to which the manner of obtaining evidence does not affect the question of its admissibility, should be changed.

In this context it should be emphasized that in view of the fact that the Evidence Ordinance does not constitute a complete and exhaustive codex of law, our rules of evidence are to a large extent the result of development by this court. As such, they constitute a part of the ‘Israeli version of common law’ (see LCA 1412/94 Hadassah Medical Organization v. Gilad [83], at p. 524, per President Barak; see also the remarks of President Shamgar in State of Israel v. Tubul [67], at pp. 318-319, and his remarks in MApp 298/86 Citrin v. Tel-Aviv District Disciplinary Tribunal of Bar Association [84], at p. 354). The approach that prevailed in our legal system until now, according to which the manner of obtaining evidence did not affect the question of its admissibility is also not the creation of the legislature but the product of the case law of this court. In view of this, this court has always had the power to change it.

Admittedly, as has been stated above, even before the enactment of the Basic Laws this court assumed that it had the power to change the case law rule under discussion, but it refrained from doing so for reasons of judicial policy. In view of the effect of the Basic Laws, a reconsideration is now required of the question of the admissibility of illegally obtained evidence, in order to make the case law rule in this matter consistent with the change that has occurred in our normative reality. Indeed, a change in case law, especially when it may affect the way in which the criminal trial is conducted and the rules of evidence that apply to it, is not made as a matter of course. ‘This approach derives from the respect that we feel towards our colleagues, whose learning can be seen from legal literature, from the need to ensure security and stability and from the recognition that the reasonable expectations of members of the public, which are based on the case law of the court, should be realized’ (per Justice Barak in HCJ 547/84 HaEmek Poultry Registered Agricultural Cooperative Society v. Ramat-Yishai Local Council [85], at p. 145). Great care is therefore required before this court changes its case law on the fundamental issue of the admissibility of illegally obtained evidence. Indeed, as we shall explain below, the case law adoption of the doctrine under discussion will be carried out with moderation and care, while giving discretion to the court to examine the question of the admissibility of illegally obtained evidence in each case according to its circumstances and in accordance with criteria that we shall address below. Moreover, our judgment does not provide a solution to all of the questions involved in the adoption of such a case law doctrine, and in any event these questions will be resolved in future case law, by moving forward carefully from case to case. Certainly the legislature will be able to have its say on the subject under discussion even after we have given our judgment, and it may determine the arrangement that it thinks fit, provided that this legislative arrangement ‘befits the values of the State of Israel, is intended for a proper purpose and is not excessive’ (s. 8 of the Basic Law: Human Dignity and Liberty). So we see that the adoption of a case law doctrine that excludes illegally obtained evidence should be made with the sensitivity and care that are required by the change in the case law rule that prevailed until now.

Notwithstanding, it should be emphasized that the need to preserve legal stability and certainty does not mean that case law should remain stagnant without any ability to change and adapt itself to the needs of the changing reality. This is especially the case when the change in case law is required in order to protect human rights and in order to safeguard the fairness of the criminal process and the administration of justice in their broad sense. This court has been committed, since its founding, to the protection of human rights. It is bound by the duty to uphold the rights protected in the Basic Laws and whatever is implied by this with regard to conducting the judicial process (see s. 11 of the Basic Law: Human Dignity and Liberty). In view of all this, the fact that after the Basic Laws the legislature has not seen fit to introduce an express statutory doctrine that allows illegally obtained evidence to be declared inadmissible in appropriate cases does not exempt the court from its duty to make its case law on the aforesaid issue consistent with the spirit of the Basic Laws, in order to create ‘normative coherence’ (A. Barak, A Judge in a Democracy (2004), at p. 63). This is especially the case in view of the fact that the court is responsible for the process of discovering the truth and dispensing justice in the criminal proceeding, and in view of its duty to achieve these purposes without any disproportionate violation of the accused’s rights.

In addition, we should point out that a comparative perspective of the position in other countries with a similar legal system to our own shows that some of them have adopted judicial doctrines according to which illegally obtained evidence is inadmissible. Thus, for example, in the United States the Supreme Court has developed rules that evidence obtained by means of a breach of constitutional rights is inadmissible. In England, the common law recognized, as long ago as 1955, the discretion of the court to declare evidence inadmissible if admitting it would be unfair to the accused. As I said in para. 39 above, this authority has hardly ever been used in practice, and the aforesaid doctrine was replaced in 1984 statutory inadmissibility provisions in the Police and Criminal Evidence Act, which we shall discuss later. In Australia the High Court adopted a case law doctrine that allowed illegally obtained evidence to be declared inadmissible at the discretion of the court (Bunning v. Cross [106]). Later the Uniform Evidence Acts 1995 were enacted, and these contain inadmissibility provisions that apply in the federal courts. We cannot rule out the possibility that a similar process will also occur in the future in Israel, such that the judicial recognition of a doctrine that illegally obtained evidence is inadmissible will lead to the assimilation of the aforesaid doctrine in a statute that is consistent with the provisions of the Basic Law.

51. The Chief Military Prosecutor and the attorney-general further argued in their written summations that in view of the absence of an express statutory arrangement that illegally obtained evidence is inadmissible, the existing statutory position in our legal system should be interpreted as indicating an intention on the part of the legislature to create a ‘negative arrangement’ on this issue. This argument was comprised of several secondary arguments that we will consider below.

It was argued before us that the three rules of inadmissibility set out in s. 12 of the Evidence Ordinance, s. 13 of the Eavesdropping Law and s. 32 of the Protection of Privacy Law should be interpreted as evidence of the existence of a negative legislative arrangement with regard to the adoption of a case law doctrine that illegally obtained evidence should be inadmissible; this argument cannot be accepted for several reasons. First, this court has always refrained from basing its case law on the question of the admissibility of illegally obtained evidence on this interpretation. In Vaknin v. Appeals Court Martial [5] it was expressly held that ‘from the provisions of s. 32 of the Protection of Privacy Law, which makes material that was obtained by means of a violation of privacy inadmissible as evidence in certain circumstances, nothing can be implied — either positively or negatively — with regard to the policy of the legislature with regard to the rule of inadmissibility in general’ (per Justice Barak, ibid., at p. 423; emphasis supplied). Second, from a purposive viewpoint, the aforesaid inadmissibility provisions should not be interpreted as evidence of an intention on the part of the legislature that a general doctrine that excludes illegally obtained evidence should not be adopted. Thus, for example, there is no logic in saying that eavesdropping without a lawful permit is more serious than obtaining other evidence by improper means (see, in this regard, Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ supra, at p. 1026). According to my approach, the statutory rules of inadmissibility may imply a fundamental position that is different from the one argued by the chief military prosecutor and the attorney-general, according to which in certain circumstances declaring evidence inadmissible because of illegality that was involved in obtaining it is a possible relief.

It should be stated that there is a separate question as to whether the concrete rules of inadmissibility provided in legislation create an exhaustive arrangement with regard to the admissibility of the evidence addressed therein. In other words, do the aforesaid rules prevent the application of a case law doctrine of inadmissibility of confessions of defendants and evidence obtained contrary to the provisions of the Eavesdropping Law and the Protection of Privacy Law? We shall address this question, which concerns the scope of the application of the case law doctrine, below.

52. The Chief Military Prosecutor and the attorney-general further stated before us that the Basic Law: Human Dignity and Liberty does not contain an express provision with regard to the inadmissibility of evidence that was obtained by means of an illegal breach of the rights protected within its framework. According to their argument, the silence of the Basic Law on this issue is very significant, and it indicates a negative arrangement that prevents the judicial adoption of a doctrine that illegally obtained evidence should be inadmissible.

This argument should be rejected. The Basic Laws that address human rights do not contain any provision concerning remedies or reliefs for a violation of the rights protected by them. The silence of the Basic Law on this issue should not be interpreted as a negative arrangement. It is well known that s. 1A of the Basic Law: Human Dignity and Liberty provides that the purpose of the Basic Law is ‘to protect human dignity and liberty, in order to enshrine in a Basic Law the values of the State of Israel as a Jewish and democratic state.’ Without reliefs for a breach of the rights protected within the framework of the Basic Law, the purpose of protecting these rights would be bereft of all significance. Admittedly, the role of formulating the reliefs for a breach of constitutional rights is first and foremost the duty of the Knesset. It has the proper tools for creating a comprehensive arrangement that will lead to a proper correlation between the violation of the constitutional right and the relief for it. Notwithstanding, in the absence of a statutory provision in this regard, the court is competent to formulate appropriate reliefs for a breach of the rights protected in the Basic Laws, by virtue of its positive duty to protect these rights and in accordance with the general outlook of our legal system that where there is a right, there is also a remedy (ubi ius ibi remedium) (see Barak, A Judge in a Democracy, supra, at pp. 237-238; Barak, Constitutional Interpretation, supra, at pp. 365 and 703; D. Barak-Erez, Constitutional Torts — The Pecuniary Protection of the Constitutional Right (1993), at p. 151; E. Gross, ‘Constitutional Remedies,’ 4 Mishpat uMimshal (1998) 433, at pp. 436-439).

Indeed, in several judgments this court has adopted the interpretive outlook that the aforesaid silence of the Basic Law does not constitute a negative arrangement with regard to the recognition of reliefs whose purpose is to protect the rights protected therein. Thus, for example, in CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [86], at pp. 276, 415-419. it was held that the court is competent to declare an ordinary law void if it conflicts with the Basic Law, as a part of the outlook that legislation of the Knesset should be consistent with the general constitutional framework. The court held this even though the Basic Laws that address human rights do not contain an express provision — as opposed to an implied inference — with regard to the existence of a power to declare a statute void if it is inconsistent with their provisions. We should also point out that in Daaka v. Carmel Hospital [52] this court held, by a majority, that an illegal violation of a protected constitutional right (the right of the individual to autonomy of will) may constitute an independent compensatable head of damage within the framework of the tort of negligence. It may be assumed that in the future we will be called upon to determine the question of the recognition of additional relief for the breach of constitutional rights and the question of the manner in which such reliefs should be formulated: whether they should be derived directly from the Basic Law or whether they should find their place in areas of law that are external to them (with regard to the possible methods of formulating relief for the breach of constitutional rights, see Barak, Constitutional Interpretation, supra, at pp. 780-781; see also Barak-Erez, Constitutional Torts — The Pecuniary Protection of the Constitutional Right, supra, at pp. 149 et seq.; Gross, ‘Constitutional Remedies,’ supra, at pp. 439-440). In any case, for the purpose of the matter before us it is sufficient for us to determine that the Basic Law: Human Dignity and Liberty does not contain a negative arrangement with regard to the inadmissibility of illegally obtained evidence, and that, in the spirit of the provisions of the Basic Law, the adoption of such a doctrine is now required.

53. The Chief Military Prosecutor and the attorney-general, in their written summations, also addressed the Criminal Procedure (Enforcement Powers — Arrests) Law and the Criminal Procedure (Enforcement Powers — Search of Body of Suspect), 5756-1996, which were enacted after the Basic Laws came into force. According to their argument, the absence of an express provision of statute that allows evidence that was obtained in violation of the provisions of the aforesaid laws to be declared inadmissible indicates the existence of a negative arrangement with regard to the adoption of the doctrine under discussion.

This argument should also be rejected. The two aforesaid laws were intended to bring the arrest, detention and search powers into line with what is required by the provisions of the Basic Law: Human Dignity and Liberty. These laws indicate the change in outlook introduced by the Basic Law, with a greater emphasis than in the past on the protection of the rights of persons under interrogation and under arrest vis-à-vis the needs of the investigation in the sphere of criminal procedure. The aforesaid laws do not address at all the questions of evidence that arise from exercising the powers of arrest, detention and search, and in any case they do not imply anything, either positively or negatively, with regard to the position of the legislature on the adoption of a doctrine that illegally obtained evidence should be inadmissible.

Interim summary

54. The Basic Law: Human Dignity and Liberty elevated the human rights that are protected in it to a constitutional super-legislative status. A change was therefore made to our normative reality. This change is reflected first and foremost in the possibility of judicial review of the constitutionality of laws that were enacted after the Basic Laws concerning human rights came into force. Notwithstanding, this does not exhaust the whole scope of the effect of the aforesaid Basic Laws. The Basic Laws affect the manner in which executive discretion is exercised. The spirit and principles of the Basic Laws shed light with varying degrees of intensity on all branches of law and these affect the basic concepts and basic outlooks in them. Inter alia, they affect the interpretation of legislation that preceded the Basic Laws and ‘the Israeli version of common law’ that is developed in the case law of this court.

These normative changes require a reconsideration of the question of the admissibility of illegally obtained evidence. If in the past our legal system was guided by the case law ruling that the question of the admissibility of evidence is not considered in accordance with the manner in which it was obtained, since the interpretive centre of gravity in this respect was focused on the purpose of discovering the truth and fighting crime, today a more flexible balancing point is required, which takes into account the duty to protect the rights of the accused and the fairness and integrity of the criminal process. The proper balance between all of the competing values and interests on this question leads to the adoption of a relative doctrine of inadmissibility, within the framework of which the court will have discretion to decide the admissibility of illegally obtained evidence in the circumstances of each case on its merits, and in accordance with criteria that we shall discuss below.

The adoption of a doctrine that illegally obtained evidence is inadmissible and determining the strength and scope of such a doctrine is a matter worthy of legislation. Nonetheless, as aforesaid, our rules of evidence are largely the creation of case law, and in the absence of a negative legislative arrangement on this issue, the court has the duty to adapt the case law norm that it originally determined to the changing normative reality. For the reasons that we have discussed extensively above, the necessary conclusion is that the time has come to adopt a case law doctrine that, in appropriate circumstances, allows illegally obtained evidence to be declared inadmissible in our legal system.

Models of doctrines that exclude illegally obtained evidence — a comparative perspective

55. In order to determine the nature and framework of the doctrine under discussion, we should address three main questions that are interrelated, even though for the convenience of our deliberations we shall present them as separate questions: the first question concerns the main purpose of a doctrine that renders evidence inadmissible because of the manner in which it was obtained. In the case law of this court and also in other legal systems that are closely related to our legal system, different approaches have been expressed on this question. We shall focus our perspective on the three main approaches to the issue. According to one approach, the main purpose of excluding evidence because it was obtained illegally is an educational-deterrent purpose. According to this approach, the inadmissibility of evidence that was obtained in an improper way is intended mainly to educate the investigation authorities and deter them from adopting similar methods in the future, by making it impossible for the prosecution to benefit from the fruits of the illegality that was involved in obtaining the evidence. According to this approach, alternative methods of deterring the police from using improper investigative methods have been found to be ineffective, and it is therefore necessary to declare evidence that was obtained by such methods inadmissible.

According to a second approach, the exclusion of illegally obtained evidence is mainly intended to protect the rights of defendants in their interrogation. According to this approach, the violation of the protected rights of the person under interrogation by the law enforcement authorities gives rise to a justification for the evidence that was obtained as a result of that violation not being admissible, as a part of the protection of those rights. This approach has also been called the ‘protective approach.’

According to a third approach, the main emphasis in excluding illegally obtained evidence is placed on the moral aspect of the criminal proceeding. According to this approach, a judicial decision with regard to a conviction and sentencing of a person does not merely impose on him a legal sanction — imprisonment or a fine — but also a moral sanction that is reflected in the stigma that accompanies a criminal conviction. Making use of evidence that was obtained improperly by the law enforcement authorities may, in certain circumstances, taint the criminal conviction and undermine its legitimacy. Inter alia, the court may be regarded as sanctioning the defect and being a party, after the event, to the illegality in the behaviour of the investigators. Moreover, since the police investigation stage is a part of the complete system of administering justice, the admissibility of evidence in a trial when it was obtained by means of illegal interrogation methods may undermine the integrity of the judicial process and public confidence therein. According to this approach, the inadmissibility of the evidence is intended to protect values that mainly concern the integrity and fairness of the criminal process, and it is required as a part of the work of administering justice in its broad sense, and as a prerequisite for public confidence in the judicial system. At this point we should emphasize that there is a close relationship between the three aforesaid purposes, and that the formulation of the nature and framework of a doctrine concerning the inadmissibility of illegally obtained evidence will necessarily be affected by all of the purposes that we have discussed. Notwithstanding, the question before us is what is the primary or dominant purpose that ought to serve as the basis for such a doctrine.

 The second question that affects the formulation of the doctrine under discussion concerns the theoretical model on which the inadmissibility of the evidence should be based. In this regard, two main models can be identified. According to one model, the inadmissibility of the evidence is a remedy for an illegal violation of a protected right of the accused, which took place when the evidence was obtained. As we shall clarify later on, this theoretical model is consistent with the educational-deterrent approach, and it may also be consistent with the protective approach (hereafter: ‘the remedial model’). Another possible model is that the inadmissibility of the evidence is intended to prevent a future violation of a protected value, which is separate from the original right that was violated when the evidenced was obtained. Within the framework of this model, the inadmissibility of the evidence constitutes a prospective relief and its purpose is to prevent a violation of the protected social value when the evidence is admitted in the trial. As we shall explain below, this theoretical model is consistent with the approach that regards the protection of the criminal process, its integrity and fairness as the main purpose for declaring evidence inadmissible if it was obtained illegally. This theoretical model may also be consistent with the protective approach, especially in legal systems where the protected right that lies at the heart of the doctrine of inadmissibility is the right of the accused to a fair criminal trial (hereafter: ‘the preventative model’).

The third question that affects the formulation of a doctrine that excludes illegally obtained evidence concerns the degree of flexibility and the scope of discretion that the court has within the framework thereof. In this matter there are also two main possibilities: one possibility is an absolute doctrine of inadmissibility that holds that illegally obtained evidence may not be admitted in evidence. The second possibility is a relative doctrine of inadmissibility that leaves the court with discretion to decide the question of the admissibility of the evidence in view of the circumstances of the case that is before it.

A comparative look at other legal systems that are similar to our legal system shows that the aforesaid three questions led to the development of two main models of doctrines for the exclusion of illegally obtained evidence. One model is expressed in the exclusionary rules practised in the United States. The second model is the one practised in the other common law countries, including Canada, England, South Africa and Australia. Let us therefore turn to examine closely the inadmissibility doctrines practised in these countries, in order to obtain inspiration from the arrangements adopted by them on the matter under discussion. Obviously the comparative perspective does not bind us in formulating a doctrine that is appropriate for our legal system, and reference to legal systems that are fundamentally similar to our legal system is merely intended to broaden our horizons and benefit from the experience of those countries, in so far as this experience is relevant for the purposes of the legal position in Israel.

(a) The exclusionary rules practised in the United States

56. The rules of inadmissibility or the exclusionary rules as practised in the United States are based mainly on the exclusion of evidence that was obtained in contravention of the Fourth Amendment of the Constitution, which concerns the principles of searches and seizures, the Fifth Amendment of the Constitution, which concerns the protection of the right not to incriminate oneself and the right to due process, and the Sixth Amendment of the Constitution, which concerns the right to representation by counsel. The case law of the Supreme Court of the United States has adopted the approach that the aforesaid exclusionary rules were intended mainly for an educational-deterrent purposes, so that the police do not again in the future make use of investigation methods that are capable of violating the constitutional rights of the suspect or accused (see, in this regard, J. Stribopoulos, ‘Lessons from the Pupil: A Canadian Solution to the American Exclusionary Rule Debate,’ 22 B. C. Int. & Comp. L. Rev. (1999) 77, at p. 101; R.H. Fallon and D. J. Meltzer, ‘New Law, Non-Retroactivity and Constitutional Remedies,’ 104 Harv. L. Rev. (1991) 1731, at p. 1810). The educational-deterrent purpose has had a dominant effect on the formulation of the American exclusionary rules. Inter alia, the aforesaid approach has led in the United States to the development of the ‘fruit of the poisonous tree’ theory. According to this theory, the court should declare inadmissible not only evidence that was obtained as a direct result of a violation of the constitutional right of the accused, but also any other evidence that was found directly or indirectly as a result of the information that was disclosed by that initial evidence; and this applies even when the credibility of the aforesaid items of evidence is not in doubt. This theory was mainly intended to deter investigators from making future use of improper investigation methods, by excluding all the evidence that was found as a result of the aforesaid illegality.

The theoretical model on which the exclusionary rules in the United States are based is the ‘remedial model.’ The exclusion of the evidence is a remedy for the violation of the constitutional right of the accused that took place when the evidence was obtained. The exclusion of the evidence is therefore intended to provide relief for a violation that was completed in the past, and it is not intended to prevent a future violation of a protected right or value. We should also point out that ab initio the American exclusionary rules were formulated as sweeping rules that did not leave the courts any discretion on the question of the admissibility of evidence that was obtained as a result of a violation of the Constitution. Notwithstanding, following major criticism that has been heard over the years with regard to the rigidity of the aforesaid exclusionary rules, the Supreme Court of the United States has recognized exceptions to these rules, which have relaxed, to some extent, the sweeping obligation mandated by them to exclude evidence. It should also be emphasized that the rigidity of the American exclusionary rules has had far-reaching consequences from the viewpoint of undermining the purpose of law enforcement, fighting crime and discovering the truth, and as a result of these social consequences, criticism has been levelled at these rules in the United States and elsewhere.

In concluding these remarks, we should point out that over the years there has been disagreement on the question whether the aforesaid exclusionary rules are enshrined in the United States Constitution or not. In Dickerson v. United States [105], which we discussed in para. 27 supra, the Supreme Court of the United States held, by a majority, that the exclusionary rule held in Miranda v. Arizona [104] had a constitutional basis and it could therefore not be nullified by an ordinary statute of Congress.

(b) The doctrines of inadmissibility practised in Canada, England, South Africa and Australia

57. Other common law countries, including Canada, England, Australia and South Africa, have adopted doctrines of inadmissibility that are more flexible and moderate, based on a different theoretical model from the one practised in the United States.

Section 24(2) of the Canadian Charter of Rights and Freedoms of 1982 provides as follows:

‘24. Enforcement of guaranteed rights and freedoms

(1)…

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.’

Section 24(2) of the Charter provides two conditions for the inadmissibility of evidence: first, it must be proved that the evidence was obtained in violation of a protected constitutional right under the Charter. Second, the court should exclude evidence as aforesaid if, taking into account all of the circumstances, it is proved that admitting the evidence in the court proceedings would lead to substantial harm to the administration of justice system.

Thus we see that, unlike the rigid exclusionary rules practised in the United States, under s. 24(2) of the Canadian Charter the obtaining of evidence in violation of a constitutional right does not in itself necessitate its inadmissibility; the evidence will be excluded only if admitting it in the trial will harm the process of administering justice. It should be emphasized in this context that the test enshrined in s. 24(2) of the Charter is not whether the illegal behaviour of the investigation authorities has resulted in harm to the administration of justice process, but whether admitting the evidence in a trial would create such harm. It follows that the inadmissibility is not a remedial relief for the improper conduct of the investigators when they obtained the evidence, but a relief that is intended to prevent substantial harm to the integrity and propriety of the administration of justice system if the evidence is admitted in the trial (‘the preventative model’). It should also be emphasized that s. 24(2) refrains from establishing a presumption with regard to the inadmissibility of illegally obtained evidence, and the matter is left to the discretion of the courts according to criteria that have been determined in the case law of the Supreme Court of Canada. At this stage we should point out that one of the main considerations in this context is whether admitting the evidence in the trial will prejudice the fairness of the criminal trial (see R.J. Sharpe and K.E. Swinton, The Charter of Rights and Freedoms (1998), at pp. 178-179).

Taking all of the aforesaid into account, the accepted view in case law and academic literature in Canada is that the main purpose of the doctrine of inadmissibility that is enshrined in s. 24(2) of the Charter is not to deter or educate the police, but to protect the fairness of the proceedings and to uphold the integrity and status of the administration of justice system. Deterring the investigation authorities from using illegal investigation methods in the future constitutes a desirable side-effect of excluding the evidence, but it is not one of its main purposes (see, in this regard, R. v. Collins [108], at p. 281; P.W. Hogg, Constitutional Law of Canada (student edition, 2005), at p. 911).

58. With regard to England, the doctrine practised there for the inadmissibility of illegally obtained evidence is set out in the provisions of s. 78(1) of the Police and Criminal Evidence Act 1984 (PACE), which is an ordinary statue of Parliament. Section 78(1) provides:

‘78. Exclusion of unfair evidence

(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’

The premise on which s. 78(1) of PACE is based is that all relevant evidence is admissible in a trial. Nonetheless, according to the aforesaid s. 78(1), the court is competent to refuse to allow evidence that was presented to it by the prosecution, after considering the following issues: first, the court should consider all the circumstances of the case, including the circumstances of obtaining the evidence. Second, the court needs to be persuaded that in the circumstances of the case admitting the evidence would have such a detrimental effect on the fairness of the proceedings that it should not be allowed.

Thus we see that the English legislature saw fit to adopt a relative doctrine of inadmissibility, which leaves the court discretion on the question of the inadmissibility of evidence that was obtained improperly. The main test in this regard is whether, in the circumstances of the case, admitting the evidence in the trial will seriously prejudice the fairness of the proceedings. Like s. 24(2) of the Canadian Charter, the inadmissibility of the evidence under s. 78(1) of the PACE is not intended to offer a remedial relief for the harm to the accused that was completed when the evidence was obtained, but its purpose is to prevent future harm to a protected value — the fairness of the criminal proceeding — when the evidence is admitted in the trial. Like in Canada, English case law has also determined that the main purpose of the inadmissibility of the evidence under the aforesaid s. 78(1) is not to educate the police or deter them from making use of improper investigation methods in the future, but to protect the fairness and integrity of the judicial system (see Zander, The Police and Criminal Evidence Act 1984, supra, at p. 347; R. Stone, ‘Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles,’ [1995] 3 Web J.C.L 1).

It should be noted that according to the legal position in England, the English doctrine of inadmissibility is not conditional upon the evidence being obtained by means of an illegal violation of a protected constitutional right. It is sufficient to prove that, in view of all of the circumstances of the case, including the circumstances of obtaining the evidence, admitting it in the trial would prejudice the fairness of the proceedings. A study of English case law shows that most of the cases where evidence was declared inadmissible under the aforesaid s. 17(1) concerned evidence that was obtained by the police by means of a serious violation of the provisions of the PACE or of the Codes of Practice that were issued under the aforesaid law and have the status of secondary legislation. Notwithstanding, English case law has emphasized that evidence may be inadmissible also because of the use of unfair investigation methods, and it is not necessary to prove formal illegality in obtaining the evidence.

In concluding these remarks, we should point out that the European Convention on Human Rights is silent on the question of the admissibility of illegally obtained evidence, and this matter is regulated in the internal law of the states. Notwithstanding, the European Court of Human Rights has held that a violation of a protected right under the Convention when obtaining the evidence does not necessarily result in its inadmissibility. According to the court, the circumstances of each case should be considered on the merits to determine whether admitting the evidence will make the trial as a whole unfair under s. 6 of the Convention. Thereby the European Court of Human Rights approved the position of English law on this subject (see Zander, The Police and Criminal Evidence Act 1984, supra, at pp. 347-348; Archbold, Criminal Pleading, Evidence and Practice (London, P.J. Richardson ed., 2003), at p. 1477).

59. The South African constitution of 1996 also contains an express provision with regard to the inadmissibility of illegally obtained evidence, which states:

‘35. Arrested, detained and accused persons

…

(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.’

Like the doctrine of inadmissibility practised in England and Canada, s. 35(5) of the South African Constitution also provides a relative doctrine that leaves the court discretion in excluding the evidence. The theoretical model on which the inadmissibility doctrine is based is not the giving of relief for the initial violation of the constitutional right when the evidence was obtained, but the prevention of future harm to protected values — the fairness of the proceeding and the harm to the administration of justice system — as a result of admitting the evidence (‘the preventative model’).

 Adopting a case law doctrine of inadmissibility in our legal system — guiding principles

60. How should we formulate the case law doctrine of inadmissibility in Israel? What ought to be the nature of this doctrine and what are the general principles that should guide us in determining its framework? In view of the characteristics of our legal system and the basic outlooks that prevail in it, and against the background of the interpretive inspiration that may be derived from the experience of other countries, as has been set out above, I think that it is possible to reach the following conclusions:

Of the two theoretical models that we have discussed, I believe that the appropriate model for our legal system is the ‘preventative model’ according to which the inadmissibility of evidence will be a relief whose purpose is to prevent a future violation of a protected value when the evidence is admitted in a trial, and not remedial relief for the initial harm to the accused that was completed when the evidence was obtained. The rejection of the ‘remedial model’ is based on two reasons: first, the ‘remedial model’ which is practised in the United States bases the relief of inadmissibility on the existence of a violation of a constitutional right at the time of obtaining the evidence. At the current time, our legal system does not have a complete and comprehensive constitutional bill of human rights. As I said in para. 20 supra, the question of the constitutional status of the procedural rights of persons under interrogation, suspects and defendants in criminal proceedings has also not received a clear and comprehensive response. Different approaches are possible on the question of which procedural rights that are not listed expressly in the Basic Law should be included within the framework of the constitutional right to dignity and liberty. In view of this, it would seem that the adoption of the ‘remedial model’ may raise significant difficulties in our legal system. Second, from a theoretical point of view, it is doubtful whether excluding illegally obtained evidence really gives relief for a violation to a protected right of the defendant that was completed. The illegal violation of the right to privacy and property occurs at the time of the search. Whether evidence was discovered in that search or not is immaterial from the viewpoint of the violation of the right that has already taken place. Therefore, there is a basis to the argument that excluding the evidence does not constitute remedial relief for the violation of a protected right that has been completed. Third, there are some who argue that the ‘remedial model’ leads to an improper discrimination between persons under interrogation. This is because this model offers relief for the initial violation of the constitutional right only for persons under interrogation who are indicted and against whom the evidence is presented by the prosecution in their trial (see, in this regard, Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra, at p. 170). Fourth, it is possible to point to alternative reliefs — criminal, disciplinary, tortious and possibly even constitutional — for the initial violation of a protected right of the person under interrogation at the time that the evidence was obtained. In view of the existence of alternative reliefs as aforesaid and the social price involved in the exclusion of evidence that is capable of contributing to the discovery of the truth, it is doubtful whether there is a justification for adopting the ‘remedial model.’

The vast majority of the aforesaid difficulties do not arise with regard to the ‘preventative model,’ within which framework the exclusion serves as a defensive relief that is intended to prevent a future violation of a protected value when the evidence is admitted in a trial. And indeed, apart from the American legal system, all the other common law countries that we have discussed saw fit to adopt the ‘preventative model’ and to base the inadmissibility doctrines that they practise on this model.

61. With regard to the dominant purpose that should lie at the heart of the case law doctrine of inadmissibility that we should adopt, it appears that the educational-deterrent cannot be the main purpose of this doctrine. In view of the American experience, it is questionable whether the exclusion of illegally obtained evidence does indeed constitute an effective means of educating and deterring the investigation agencies from the use of improper investigation methods (see, in this regard, LaFave and Israel, Criminal Procedure, supra, at pp. 315-316; H.M. Caldwell and C.A. Chase, ‘The Unruly Exclusionary Rule: Heeding Justice Blackmun’s Call to Examine the Rule in Light of Changing Judicial Understanding about Its Effects Outside the Courtroom,’ 78 Marq. L. Rev. (1994) 45, at p. 55). It should be noted that even in the context under discussion there are some who argue that there are alternative legal measures for educating and deterring investigators who made use of illegal investigation methods, including the filing of disciplinary, criminal or civil proceedings against the investigators who have acted improperly. Filing such proceedings constitutes a direct sanction against those investigators, and therefore there are some persons who think that this is a more effective relief for the purposes of education and as a deterrent.

Taking all of the aforesaid into account, it would appear that the educational-deterrent purpose cannot serve as a strong basis for formulating a doctrine for excluding illegally obtained evidence in our legal system. In view of the commitment of this court since its inception to the protection of human rights and the inspiration of the Basic Laws concerning human rights, it would appear that the purpose of protecting the fairness and integrity of the criminal process is the main purpose that should assist in formulating the aforesaid doctrine. The educational-deterrent purpose may be a possible and even a desirable side-effect of the exclusion of the evidence within the framework of this doctrine.

62. With regard to the degree of flexibility of the case law doctrine of inadmissibility, counsel for the appellant, as well as the Israel Bar Association and the National Public Defender’s Office, expressed support for the adoption of a relative doctrine, which leaves the court discretion to exclude illegally obtained evidence after taking into account the circumstances of each case on its merits. Indeed, there are many reasons that support the adoption of such a relative doctrine. As we explained above, the question of the admissibility of illegally obtained evidence requires us to find a proper balance between the protection of the rights of the accused and safeguarding the fairness and integrity of the criminal process, on the one hand, and competing values and interests, including the value of discovering the truth, fighting increasing crime and protecting public safety and the rights of victims of crime, on the other. It has already been said in our case law, in another context, that ‘we should… find a proper balance between the need to protect the right of the individual to dignity, liberty, privacy and a fair trial, on the one hand, and the need to protect the rights of society and its individuals against crime, on the other. We should refrain from paying too dear a price, whether from a desire to win the war against crime or a desire in another direction, to overprotect the suspect and the accused’ (per Justice Strasberg-Cohen in Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [70], at p. 761). Consequently, the aforesaid balancing should be done with proper care and with a view to all of the circumstances of the case. As we shall explain below, a serious illegal act that was carried out intentionally by the investigation authorities cannot be compared to a negligible defect in the investigation process that was done in good faith and without any real ramifications on the rights of the person under interrogation. Because of the complexity of the matter and the many factors that should be taken into account, it is not desirable to adopt a strict rule of inadmissibility, but we should leave the court with discretion on the question of the admissibility of illegally obtained evidence, so that it can take into account the circumstances of each case on its merits. For these reasons, this court has in the past already expressed the opinion that there is no basis for adopting strict rules of inadmissibility like those that are practised in the American legal system, and that the relativity of the doctrine of inadmissibility is ‘… a basic condition for doing justice’ within its framework (per Justice Mazza in State of Israel v. Nahmias [60], at p. 339).

It should be noted that giving discretion to the court as aforesaid is consistent with the general theory of checks and balances that characterizes our legal system and it is consistent with the values of the State of Israel as a Jewish and democratic state (see, in this regard, Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ supra, at p. 82). Moreover, the adoption of a relative doctrine that gives the court discretion on the question of the admissibility of illegally obtained evidence is consistent with our duty to act moderately and carefully when changing a case law rule that has existed in the matter under discussion until now (see, on this point, para. 50 supra). It is supported by the relative arrangements that were adopted in other common law countries and the lessons learned from the criticism levelled at the sweeping exclusionary rules practised in the American legal system.

The case law doctrine of inadmissibility — its nature and scope

63. In view of all of the conclusions that we have reached in our deliberations up to this point, it is possible to formulate the case law doctrine of inadmissibility that we are adopting in our legal system as follows:

The premise for the question of the admissibility of evidence is the same that has always been applied in Israel, according to which evidence that is relevant is admissible in a trial. Notwithstanding, the court has discretion to exclude evidence in criminal cases if it finds that the evidence was obtained illegally and admitting it in the trial will result in serious harm to the right of the accused to a fair criminal trial that departs from the framework of the limitations clause.

Thus we see that according to the case law doctrine, the inadmissibility of evidence in criminal cases because of the manner of obtaining it depends upon satisfying two conditions simultaneously: first, that the evidence was obtained illegally, and second, that admitting the evidence in the trial will significantly harm the right of the accused to a fair trial contrary to the conditions of the limitations clause. It should be emphasized that according to the ‘preventative model,’ which we have discussed, the inadmissibility of evidence is intended to prevent an illegal violation of the right to a fair trial as a result of admitting the evidence in the trial — a violation that is distinct and separate from the initial violation of the accused’s rights that was completed when the evidence was obtained. Let us now consider in greater detail the nature of the aforesaid conditions.

(a) Illegally obtained evidence

64. The first condition for the application of the case law doctrine of inadmissibility is that the evidence was obtained illegally by the law enforcement authorities. The question of what is ‘illegally’ obtained evidence cannot be given a precise and comprehensive answer. As a rule, it can be said that we are speaking of evidence that was obtained by means of illegal investigation methods, namely, methods that are contrary to a provision contained in statute, regulations or binding practice, methods that are unfair or methods that illegally violate a protected basic right. Naturally the question of the illegality or the unfairness of the investigation methods should be examined in accordance with the circumstances of each case on its merits. It has already been said in our case law that:

‘It is not possible to define what will be considered unfair or immoral in an investigation; it is necessary to consider this matter in accordance with the circumstances of each case. Thus, for example, a method of investigation that is permitted vis-à-vis an adult may be forbidden vis-à-vis a minor, and what an investigator may be permitted to do in a murder investigation he may not be permitted to do in the investigation of a traffic offence’ (per President Y. Kahan, in Muadi v. State of Israel [36], at pp. 250-251; with regard to the general principles for reasonable rules of investigation, see also the remarks of President Barak in HCJ 5100/94 Public Committee Against Torture v. Government of Israel [26], at pp. 834-836 {589-592}).

In any case, in order to exclude evidence under the aforesaid doctrine, a connection is required between the use of the improper investigation methods and the obtaining of the evidence. The question of the nature and strength of the aforesaid connection can be left to be resolved in the future (on the aforesaid connection in Canadian law, see Hogg, Constitutional Law of Canada, supra, at pp. 913-914).

It should be emphasized that within the framework of the case law doctrine of inadmissibility, it is not essential to prove that the evidence was obtained by means of a violation of a right that has constitutional status. As stated, contrary to the legal position in the United States, Canada and South Africa, in Israel a complete and comprehensive charter of rights has not yet been formulated, and therefore the application of the case law doctrine of inadmissibility is not restricted to evidence that was obtained specifically by means of a violation of a constitutional right. Instead, the doctrine provides a condition similar to the one practised in England and Australia, according to which the court must be persuaded that the law enforcement authorities obtained the evidence illegally, unfairly or by means of a violation of a protected human right.

(b) Admitting the evidence in a trial will significantly violate the right of the accused to a fair trial, contrary to the terms of the limitations clause

65. The focus of the second condition for the application of the case law doctrine of inadmissibility is the right of the accused to a fair criminal trial. Thereby we realize the main purpose of the doctrine under discussion, namely the protection of the rights of the accused and the fairness and integrity of the criminal trial. Thus we are following a similar path to the one chosen in England, Canada and South Africa, where the protection of the fairness of the proceedings and public confidence in the administration of justice process are the centre of gravity of the inadmissibility doctrines practised in their legal systems. In this context, it should be stated that the draft Evidence Ordinance Amendment (Inadmissibility of Evidence) Law, 5765-2005, which was tabled in the Knesset on 21 February 2005 also proposed that the inadmissibility of evidence that was obtained by ‘improper methods’ should be based on the right of the accused to a fair trial.

66. Even though the right to a fair criminal proceeding has been recognized in our legal system as a basic right from its inception, it would appear that defining the content and internal scope of the aforesaid right is not a simple task. We are speaking of a multifaceted right that is open-ended, and its title and precise content vary from one legal system to another, even in the various international conventions. Thus, for example, in the American legal system the Fifth and Fourteenth Amendments of the Constitution speak of the right to ‘due process’; in South Africa the provisions of art. 35(3) of the Constitution of 1996 address the right to a ‘fair trial’; by contrast, the provisions of s. 11(d) of the Canadian Charter, as well as the provisions of art. 10 of the Universal Declaration of Human Rights, the provisions of s. 14(1) of the International Covenant on Civil and Political Rights and the provisions of s. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms refer to the right to a ‘fair hearing.’ The internal scope of the aforesaid rights is not identical in the various legal systems and even in the different sources of internal law. It is clear, therefore, that defining the boundaries of the right to a fair criminal trial is a difficult and complex task, and it must be done while taking into account all of the principles and characteristics of the relevant legal system (see, in this regard, D. Cheney, L. Dickson, J. Fitzpatrick and S. Uglow, Criminal Justice and the Human Rights Act 1998 (1999); see also the remarks of Justice Adiel in HCJ 3992/04 Maimon-Cohen v. Minister of Foreign Affairs [87], at pp. 67-68).

Against this background, it would appear that it is possible to point to several characteristics of the right to a fair criminal trial in our legal system: first, the purpose of the aforesaid right is to ensure a fair procedure and proper procedural safeguards for the fairness of the criminal trial vis-à-vis the accused. Procedural fairness is, therefore, what lies at the heart of the aforesaid right. Second, the right to a fair criminal proceeding applies to all stages of the criminal proceeding, ‘both in the investigation stage and in the trial stage’ (per Justice Barak in Kanir v. State of Israel [64], at p. 516). Indeed, the police investigation stage is a preliminary proceeding to the trial itself, such that defects that occurred in it may have ramifications on the fairness of the criminal proceeding as a whole. This was discussed by Justice H.H. Cohn, who said that ‘… the whole of the police investigation is merely preparatory to the trial, and crimes committed in the investigation can cast a dark shadow on the trial proceedings that come in its wake’ (Abu-Madijem v. State of Israel [35], at p. 381). Third, the protection of the right to a fair criminal trial is not confined to examining the potential effect of procedural defects specifically on the outcome of the trial; this context requires a broader perspective that is based on general considerations of fairness, justice and preventing a miscarriage of justice. Finally, we should point out that the right to a fair criminal trial is a multifaceted right, which may serve as a basis for deriving many procedural rights of the person under interrogation, the suspect and the accused in criminal proceedings. Without exhausting the issue, we should point out that in foreign legal systems that are similar to our own and even in international conventions, the right to a fair criminal trial includes the right of the accused to know why he was arrested and what are the charges against him, the right to be represented by a lawyer, the right to be present at the trial, the right to an open trial by an unbiased and neutral tribunal and the right to defend himself at the trial and to present relevant evidence. The aforesaid right also includes the presumption of innocence, the principle of legality and the prohibition of placing the accused in double jeopardy of a conviction for the same act (see Cheney et al., Criminal Justice and the Human Rights Act 1998, supra, at pp. 77-78). In many countries that have a legal tradition similar to ours and in the case law of the European Court of Human Rights, it has been held that the right to a fair criminal trial also includes the right to consult a lawyer and even the right to remain silent and the right not to incriminate oneself at the interrogation stage, even though this does not prevent adverse inferences being drawn from the silence of the accused in his interrogation (see, for example, the position of English case law on this issue, which has been approved by the European Court of Human rights: Cheney et al., ibid., at pp. 86-90; see also A. Ashworth, ‘Article 6 and the Fairness of Trials,’ [1999] Crim. L. R. 261, at pp. 265-267).

67. As stated, this court has recognized the right to a fair trial as a fundamental and basic right from its inception. The draft Basic Law: Trial Rights (Draft Laws 1994, 335), proposed expressly enshrining the right to a fair trial and to due process in a Basic Law, but until now this proposal has not been adopted.

Many authorities are of the opinion that when the Basic Law: Human Dignity and Liberty was enacted, the right to a fair criminal trial obtained a constitutional super-legislative status. This position makes much sense. An illegal violation of the right to a fair trial in criminal proceedings may violate the constitutional right of the accused to liberty under s. 5 of the Basic Law. It may also harm the accused’s self-image and give him a feeling of degradation and helplessness as if he is a plaything in the hands of others, to the extent of a violation of his constitutional right to dignity under ss. 2 and 4 of the Basic Law (on the constitutional status of the right to a fair criminal trial, see the remarks of Justice Dorner in RT 3032/99 Baranes v. State of Israel [88], at p. 375; the remarks of President Barak in RT 8483/00 Deri v. State of Israel [89], at p. 263; the remarks of Justice Türkel in CrimA 1741/99 Yosef v. State of Israel [90], at p. 767; the remarks of Justice Strasberg-Cohen in HCJ 6972/96 Association for Civil Rights in Israel v. Attorney-General [91], at p. 782; see also Barak, Constitutional Interpretation, supra, at p. 422; Barak, ‘Human Dignity as a Constitutional Right,’ supra, at p. 281). In the case before us, we do not need to decide the question whether the right to a fair criminal trial and the specific rights derived therefrom have acquired a constitutional status for their whole scope. We can rely merely on the ruling that was recently confirmed in the case law of this court with an expanded panel of eleven justices, according to which ‘… in appropriate circumstances, a substantial violation of the right to a fair trial will amount to a violation of the constitutional right to human dignity (see HCJ 1661/05 Gaza Coast Local Council v. Knesset [92], at para. 173; emphasis supplied).

Accordingly, the case law doctrine of inadmissibility provides that illegally obtained evidence shall be inadmissible, if admitting it in the trial will create a substantial violation of the right to a fair trial contrary to the terms of the limitations clause. In other words, in order to exclude illegally obtained evidence, admitting it in the trial must violate the fairness of the proceedings vis-à-vis the accused in a way that is substantial, for an improper purpose and to an extent that is excessive. In such circumstances, admitting the evidence in the trial will amount to an illegal violation of the constitutional right to dignity and liberty. In order to prevent this violation, the court should declare the evidence inadmissible. Excluding the evidence in the aforesaid circumstances is required by the purpose and compliance clauses provided in the Basic Law: Human Dignity and Liberty. It is derived from the obligation of the court not to violate the aforesaid constitutional right (status negativus) and also from its duty to protect it (status positivus) (see Barak, ‘Human Dignity as a Constitutional Right,’ supra, at p. 273). In view of all of these, it appears that apart from the general interpretive spirit of the Basic Law, its provisions also serve as a basis for the normative enshrining of the case law doctrine of inadmissibility that we are adopting.

68. The restriction of the doctrine under discussion to circumstances in which admitting evidence at the trial will lead to a substantial violation of the right to a fair trial contrary to the terms of the limitations clause gives expression to the relativity of the aforesaid right. Indeed, like all the rights that are recognized in our legal system, the right to a fair criminal trial is also not absolute. The scope of the protection given to it is derived from the need to balance it against the competing values, rights and interests that we have discussed, including the values of discovering the truth, fighting crime, protecting public safety and protecting the rights of potential and actual victims of crime. Justice D. Levin rightly said in this regard: ‘The public interest in protecting the integrity of the judicial process should not make us forget other important public interests, such as the public interest in conducting trials to their conclusion, discovering the truth and the private interest of the injured victim’ (Yefet v. State of Israel [77], at p. 369). ‘The fairness of the trial, to which we aspire, is not merely fairness vis-à-vis the accused, but also vis-à-vis anyone who seeks the help of society in drawing conclusions from his degradation and humiliation as a human being’ (per President Shamgar in CrimFH 3750/94 A v. State of Israel [93], at p. 630).

The fundamental balancing formula between all of the aforesaid interests and values is the one that we have discussed, according to which illegally obtained evidence will be inadmissible only if the court discovers that admitting it in the trial will lead to a substantial violation of the right to a fair criminal proceeding, which is not for a proper purpose and to an extent that is excessive. The aforesaid balancing formula will be applied at the discretion of the court, in view of the special circumstances of the case that comes before it. Below we shall discuss the basic criteria for exercising the aforesaid judicial discretion.

Criteria for exercising judicial discretion within the framework of the case law doctrine of inadmissibility

69. In order to decide the question whether evidence should be declared inadmissible within the framework of the case law doctrine of inadmissibility, the court should consider a variety of considerations in accordance with the circumstances of the case before it. As I shall explain below, it is possible to point to three main groups of relevant considerations with regard to the question of when admitting illegally obtained evidence in a trial will inflict a substantial violation on the right of the accused to a fair trial contrary to the terms of the limitations clause. It should be emphasized that we are not speaking of a strict and exhaustive list of considerations, but merely guidelines for the court in exercising its discretion within the framework of the fundamental balancing formula on which the case law doctrine of inadmissibility is based.

(a) The character and seriousness of the illegality that was involved in obtaining the evidence

70. As I said above, the first condition for the application of the case law doctrine of inadmissibility is that the evidence was obtained illegally, i.e., in an illegal or unfair manner or by means of a violation of a protected right of the person under investigation. According to this, the first relevant group of considerations for deciding the question of the admissibility of illegally obtained evidence focuses on the improper conduct of the investigation authorities. In this context, the court should consider the following issues:

First, what is the character and seriousness of the illegality or the unfairness that were involved in obtaining the evidence? Logic dictates that a technical, negligible or inconsequential violation of the rules of proper investigation is not the same as a serious breach of these rules involving a significant violation of one of the main basic rights of the person under investigation. In general, admitting evidence at a trial, even though it was obtained by means of technical and marginal defects, does not substantially violate the right of the accused to a fair trial, and therefore there will be no reason to exclude it. This result is desirable because ‘… the criminal trial should not adopt the form of a game of chess in which one wrong move determines the result of the game (per Justice Zamora in CrimA 1/48 Silvester v. Attorney-General [94], at pp. 18-19; see also my remarks in CrimFH 4603/97 Meshulam v. State of Israel [95], at p. 197). On the other hand, in cases where the evidence was obtained by means of a major violation of an express provision of statute that was intended to protect the rights of defendants in their interrogations, or in circumstances where obtaining the evidence involved a serious violation of one of the main basic rights of the person under investigation, the weight of the values that support the inadmissibility of the evidence will increase. Between these two extremes of the types of violations there is a wide range of possibilities. Not every departure from the investigation rules and not every method adopted in an investigation, even if they are unacceptable to the court, will result in the inadmissibility of the evidence. It should be stated that the seriousness of the violation of the rules of proper investigation constitutes a main consideration for excluding illegally obtained evidence in all the legal systems in which relative doctrines of inadmissibility are practised. It should also be emphasized that this approach is consistent with the doctrine of relative voidance that is practised in our legal system, according to which not every deviation from the law nor every impropriety will lead to a result of voidance.

Second, the court should examine whether the law enforcement authorities made use of the improper investigation methods intentionally and deliberately or in good faith. When the investigation authorities have intentionally violated the provisions of law that bind them or they have knowingly violated a protected right of the person under investigation, this is capable of increasing the seriousness of the violation of the rules of proper investigation and the possible violation of due process if the evidence is admitted in the trial. Conduct that involves an intentional violation on the part of the investigation authorities may, therefore, be a circumstance of considerable weight for declaring the evidence inadmissible even when the defect is not serious. Notwithstanding, it should be pointed out that the fact that the authority acted in good faith does not necessarily prevent the evidence being excluded when this is required in order to protect the right of the accused to a fair criminal trial. Thus, for example, in circumstances where the defect that occurred in the manner of obtaining the evidence was serious and involved a substantial violation of the protected rights of the person under investigation, then the mere fact that the authority acted in good faith will not prevent the evidence being excluded. It should be noted that this is also the case law rule practised in Canada and in England (with regard to the case law rule in Canada, see the leading decision in R. v. Collins [108]; with regard to the rule in England, see Archbold, Criminal Pleading, Evidence and Practice, supra, at p. 1480).

Third, the court should consider whether in the case before it there are ‘mitigating circumstances’ that are capable of reducing the seriousness of the illegality that was involved in obtaining the evidence. This is the case, for example, when the illegality committed by the investigation authorities was intended to prevent the disappearance or destruction of essential evidence by the accused, when the accused contributed to the illegality in conducting the investigation, by abusing his rights, or when the illegality was the result of an urgent need to protect public security (see and cf. Smirk v. State of Israel [18], at p. 546).

Fourth, the court should consider how easy it would have been to obtain the evidence lawfully. If obtaining the evidence in permitted ways was possible and easy, then the violation of the rules of proper investigation should be considered more serious, in such a way that it will support the conclusion that admitting the evidence in the trial will create a serious and disproportionate violation of the right of the accused to a fair trial.

Finally, the court may consider whether the evidence would have been discovered or obtained by the law enforcement authorities even without making use of the improper investigation methods. When the answer to this question is yes, this may reduce the strength of the violation of the right of the accused to a fair trial if the evidence is admitted in the trial (see and cf. Hasson v. State of Israel [57], at p. 283, where the court concluded that in view of all the circumstances of the case, the accused would have made his confession even had it not been for the illegal violation of his right to consult a lawyer. Therefore the court refrained from declaring the statement inadmissible in that case).

(b) The degree to which the improper investigation method influenced the evidence that was obtained

71. The second relevant group of considerations for the exercising of judicial discretion within the framework of the case law doctrine of inadmissibility concerns the degree to which the illegal or unfair investigation method affected the evidence that was obtained. In this context, the court should consider two interrelated questions: first, to what degree was the illegality that was involved in obtaining the evidence likely to affect the credibility and probative value of the evidence. In circumstances where there is a concern as to the credibility of the evidence, the tension between the value of discovering the truth and the protection of the fairness and integrity of the process is reduced, in such a way that may support the inadmissibility of the evidence. Second, the court should consider whether the existence of the evidence is independent and distinct from the illegality that was involved in obtaining it. In circumstances where the answer to this is yes, the improper investigation methods are not capable of affecting the content of the evidence, and this is likely to constitute a consideration in favour of admitting it in the trial.

With regard to the two aforesaid questions, there may be great importance in the character of the evidence (tangible, verbal, etc.) that is being considered. Tangible evidence, such as firearms, drugs or stolen property have an independent and distinct existence from the illegality that was involved in obtaining them, and as a rule the aforesaid illegality will not be sufficient to render this evidence inadmissible. Therefore, the weight of the considerations that support the admissibility of tangible evidence is usually great (see J.R. Spencer’s chapter on ‘Evidence’ in European Criminal Procedure (Cambridge Studies in International and Comparative Law, M. Delmas-Marty and J.R. Spencer eds., 2002), at p. 605). Notwithstanding, it should be emphasized that even in this context we are not speaking of a strict rule, and the matter depends on the circumstances of each case on its merits.

In closing these remarks, I think it right to point out that since the case law doctrine of inadmissibility that we are adopting is not mainly based on an educational-deterrent purpose, we should not adopt in our legal system the ‘fruit of the poisonous tree’ doctrine that prevails in the United States (see para. 56 supra on this doctrine). The question of the admissibility of evidence that was found as a result of other inadmissible evidence should be considered in accordance with the circumstances of each case on its merits, while taking into account the effect that admitting the aforesaid evidence would have on the right of the accused to a fair criminal trial. In this context, the court should examine all of the considerations that we discussed above, including the character and seriousness of the illegality that led to obtaining the original evidence, the nature of the derived evidence concerned and the connection between it and the illegality that was involved in conducting the investigation.

(c) The social damage, as compared with the social benefit, in excluding the evidence

72. The third group of considerations that may be relevant when deciding the question of the admissibility of illegally obtained evidence concerns the effect that excluding the evidence will have on the work of administering justice in its broad sense. The main question that arises in this context is whether the social price involved in excluding the evidence is higher than the potential benefit that will arise from admitting it. The main parameters in this regard are the importance of the evidence for proving guilt, the nature of the offence attributed to the accused and its degree of severity. When we are concerned with evidence that is important and decisive for the prosecution and when the offences attributed to the accused are very serious, the exclusion of the evidence may cause excessive harm to the public interests of fighting crime and protecting public safety and the victims of crime. In these circumstances, the exclusion of the evidence will lead to the fact that the person who is guilty of committing serious offences will not be held accountable for his deeds, a consequence that may in itself undermine the administration of justice and public confidence in the courts. For these reasons, the courts in England and Australia are accustomed to taking into account the degree to which the evidence is essential and the seriousness of the offence attributed to the accused, when they decide the question of the admissibility of illegally obtained evidence (see Spencer, ‘Evidence,’ supra, at p. 605; Bunning v. Cross [106]; s. 138(2) of the Uniform Evidence Acts 1995 in Australia.

73. Notwithstanding the aforesaid, I am not unaware that giving weight to the importance of the evidence and the seriousness of the offence attributed to the accused when deciding the question of the admissibility of illegally obtained evidence involves certain difficulties. Taking into account the aforesaid considerations may lead to a situation in which precisely in investigations of serious felonies in which the constitutional right of the accused to dignity and liberty deserves substantial protection, the compliance with the rules of conducting a fair and proper investigation will decrease. In this context we should point out that in R. v. Collins [108] the Supreme Court of Canada saw fit to include the seriousness of the offence among the relevant considerations for exercising judicial discretion within the framework of s. 24(2) of the Charter, but in practice the courts in Canada tend to give the aforesaid consideration very little weight, and they do not take it into account when they decide the question of the admissibility of evidence that was obtained in violation of the Charter (see Hogg, Constitutional Law of Canada, supra, at pp. 931-932; for criticism of this trend in Canadian case law, see Stribopoulos, ‘Lessons from the Pupil: A Canadian Solution to the American Exclusionary Rule Debate,’ supra, at footnote 229).

The question of the degree to which the courts in Israel should take into account the importance of the evidence and the seriousness of the offence attributed to the accused within the framework of exercising their discretion under the case law doctrine of inadmissibility does not require a decision in the appellant’s case and we can leave this too to be decided in the future.

74. As I have already said, the list of considerations enumerated above does not purport to be a closed and exhaustive list. It gives examples of the type of circumstances and facts that may influence the court when exercising its discretion within the framework of the case law doctrine of inadmissibility. These facts concern, on the one hand, the degree of the harm to the accused’s right to a fair trial if the evidence is admitted in court, and, on the other hand, the extent of the harm to the conflicting interests if the evidence is declared inadmissible. It is important to emphasize that none of the considerations that we have discussed have an exclusive or decisive status, and that the relative weight of the aforesaid considerations will be determined in the circumstances of each case on its merits. Thus, for example, if the violation of the rules of proper investigation is serious and without it the evidence would not have been obtained, and if the offence attributed to the accused is a less serious one, then the weight of the interests supporting the admissibility of the offence will be reduced. In such circumstances, the protection of the right of the accused to a fair trial is likely to lead to the exclusion of the evidence.

In view of the fundamental balancing formula that we have discussed, and in view of the guidelines that we have set out above, I think that the concerns that the prosecution expressed before us, with regard to the uncertainty that will be caused as a result of the adoption of a case law doctrine of inadmissibility in our legal system, are exaggerated. Since we are speaking of a flexible doctrine, often the result will be identical to the one under current case law. In certain cases, a change will be required in the outcome, but this change is unavoidable in view of the normative changes that have been brought about by the Basic Laws that address human rights. This change will find expression as case law develops, by means of careful progress from case to case and by specific applications of the balancing formula that we have discussed, according to the circumstances of each case on its merits. In time, the nature and scope of the case law doctrine of inadmissibility, for which we have laid the foundation in our judgment, will become clear. Baseless applications for the exclusion of evidence will become fewer, and the arguments will become more focused. The experience of other countries that have adopted relative doctrines for the inadmissibility of illegally obtained evidence — whether in case law or in statute — shows that it is indeed possible to overcome the concerns with regard to uncertainty and the flooding of the courts with baseless claims that illegally obtained evidence should be excluded. It can be assumed that when the initial transition period is over, the same will also be the case in Israel (see and cf. the remarks of President Barak in CrimApp 537/95 Ganimat v. State of Israel [45], at p. 420, and his remarks in Barki Feta Humphries (Israel) Ltd v. State of Israel [47], at pp. 787-788).

The application of the case law doctrine of inadmissibility to defendants’ confessions

75. The last issue that we shall address before we turn to consider the specific case of the appellant before us concerns the question of the relationship between the rule of inadmissibility provided in s. 12 of the Evidence Ordinance and the case law doctrine of inadmissibility that we are adopting into our legal system. The interpretive question that arises in this regard is whether the rule of inadmissibility provided in the aforesaid s. 12 constitutes a comprehensive arrangement for the purpose of the admissibility of confessions of the accused, as argued by the attorney-general in his summations before us and as thought by the one of the justices of the appeals court martial in the minority opinion, or whether the aforesaid s. 12 does not constitute a comprehensive arrangement as aforesaid, and therefore there is nothing to prevent the case law doctrine of inadmissibility applying also to a confession of an accused.

According to our interpretive approach as set out in para. 32 supra, in addition to the purpose concerning the protection of the credibility of defendants’ confessions, the rule of inadmissibility provided in s. 12 of the Evidence Ordinance is intended to protect the right of the person under interrogation to physical and emotional wellbeing and his right to the autonomy of free will. The inadmissibility of a confession under s. 12 therefore constitutes a relief for a substantial violation of one of the aforesaid rights of the accused when the confession was made. By contrast, the case law doctrine of inadmissibility is intended to prevent an illegal violation of the right to a fair criminal trial if the evidence is admitted in the trial. These purposes do not conflict with one another, but are complementary. Consequently, there is a purposive justification for having the case law doctrine of inadmissibility apply to the confessions of defendants in addition to the rule of inadmissibility provided in s. 12 of the Evidence Ordinance. Accordingly, a defendant’s confession may be found to be admissible under the provisions of s. 12 of the Evidence Ordinance but inadmissible within the framework of the case law doctrine of inadmissibility, and vice versa.

Support for this conclusion can be found in comparative law. The Supreme Court of Canada held that the ‘free will’ test that was originally adopted in its case law from English common law continues to exist alongside the doctrine of inadmissibility provided in s. 24(2) of the Charter. It was also held that the ‘free will’ test cannot prevent the application of the aforesaid doctrine to defendants’ confessions (see R. v. Oickle [107]). In addition, we should point out that the doctrines of inadmissibility adopted in England and Australia with regard to illegally obtained evidence have also been applied to all types of evidence, including defendants’ confessions, alongside special arrangements that were provided in legislation with regard to the admissibility of defendants’ confessions (with regard to the application of the doctrine of inadmissibility enshrined in s. 78 of the PACE in England to defendants’ confessions, see Archbold, Criminal Pleading, Evidence and Practice, supra, at p. 1476, and Tapper, Cross and Tapper on Evidence, at p. 193; with regard to the application of the Australia doctrine of inadmissibility, which is enshrined in s. 138 of the Uniform Evidence Acts, to defendants’ confessions, see Australian Law Reform Commission, Review of the Uniform Evidence Acts (2005), at para. 14.67).

In view of all of the aforesaid reasons, we are led to the conclusion that s. 12 of the Evidence Ordinance is not a comprehensive arrangement with regard to the admissibility of confessions made by an accused in his interrogation. Consequently there is nothing that prevents the case law doctrine of inadmissibility also applying, in accordance with its purpose, to evidence of this kind. In closing we should point out that a similar question may arise with regard to the relationship between the rules of inadmissibility provided in the Protection of Privacy Law and the Eavesdropping Law, on the one hand, and the case law doctrine of inadmissibility that we are adopting into our legal system, on the other. This question does not arise in the circumstances of the case before us. Therefore I see no need to decide this issue and it may be addressed at a later date.

Summary

76. A summary of the main points of the case law doctrine of inadmissibility, as set out above, is as follows:

The premise for the question of the admissibility of evidence is the one that has been established in Israel since its inception, that evidence which is relevant is admissible in a trial. Notwithstanding, according to the aforesaid doctrine, the court has jurisdiction to declare evidence inadmissible in criminal cases, if it discovers that the evidence was obtained illegally and admitting it in the trial will create a substantial violation of the right of the accused to a fair trial contrary to the terms of the limitations clause. We are speaking of a fundamental balancing formula that seeks to achieve a proper compromise between all of the rights and interests that are relevant to the question of the admissibility of illegally obtained evidence, including the discovery of the factual truth, the fight against crime and the protection of public safety and the rights of victims of the offence on the one hand, as opposed to the protection of the rights of the accused and the fairness and integrity of the criminal trial on the other.

The aforesaid balancing formula will be applied at the discretion of the court, while taking into account the circumstances of each case on its merits and in accordance with the guidelines that we have discussed. These guidelines concern the nature and seriousness of the illegality that was involved in obtaining the evidence, the degree to which the improper investigation method affected the evidence that was obtained and the question of the social damage as compared to the social benefit involved in excluding it. The aforesaid doctrine will be a general one and it will be applied to all types of evidence, including defendants’ confessions.

77. It should be noted that our judgment assumes an infrastructure for adopting a case law doctrine of the inadmissibility of illegally obtained evidence, but our remarks do not provide a complete solution to all of the questions involved in the adopting of such a doctrine. Thus, for example, our judgment does not address the question whether an application to exclude illegally obtained evidence is the privilege of the accused only, or whether the prosecution may also make such an application; or, for example, who has the burden of proving the evidence involved in an application for such an exclusion and what is the appropriate stage for making the application. These questions will certainly be addressed in the future, whether in legislation that is consistent with the provisions of the Basic Law, or in the case law of the court, by means of careful steps from one case to the next.

78. Naturally, since we had not yet adopted our case law doctrine, the parties refrained from addressing in their arguments the question of when the case law doctrine that illegally obtained evidence is inadmissible should be introduced. This doctrine belongs to the sphere of the rules of evidence in criminal proceedings and its purpose is to protect the right of defendants to a fair criminal trial. The adoption of the doctrine in our legal system is a required and expected development (see para. 49 supra), and its application does not harm a reliance interest worthy of protection. In view of all this, the ruling made by us shall apply to every defendant whose case is pending before the court, in so far as there are grounds for applying it in the circumstances of the case (see and cf. LCA 8925/04 Solel Boneh Building and Infrastructure Ltd v. Estate of Alhamid [96]; see also RT 8390/01 Axelrod v. State of Israel [97].

79. In conclusion and after reading the opinion of my colleague Justice Grunis, I would like to point out that contrary to what is implied by para. 6 of the opinion, my opinion does not address the ruling made in CrimA 242/85 Hazan v. State of Israel [98], and I see no reason to express any position on that issue. With regard to the other arguments that appear in the opinion of my colleague Justice Grunis, the response to them can be found in my remarks above, and I see no need to add anything further in this regard.

From general principles to the specific case — applying the doctrine of inadmissibility to the circumstances of the appellant’s case

80. As I explained at length at the beginning of our deliberations, in the course of admitting the appellant into Prison 6 for being absent from the army without leave, a small packet wrapped in paper fell from his underpants, and then the appellant said: ‘It is grass, I can explain.’ The next day, the appellant was interrogated in the prison by a military interrogator. When he began taking his statement, the interrogator warned the appellant of his right to remain silent, but he refrained from advising him of his right to consult a lawyer. In the course of taking the aforesaid statement, the appellant confessed to the military investigator that he had smoked a drug of the cannabis type on several occasions during the period that he was absent from the army without leave. It will be remembered that before he finished taking the statement, the military investigator left the interrogation room and spoke on the telephone with the military police commander who told him to arrest the appellant. At the end of the aforesaid telephone conversation, the investigator returned to the interrogation room and continued taking the appellant’s statement. Only a quarter of an hour after finishing taking the first statement did the military investigator notify the appellant that he was under arrest and that he had the right to consult a lawyer.

The prosecution did not dispute, either before the court martial or before us, that the military investigator acted illegally when he refrained from warning the appellant of his right to consult a lawyer before he began taking his statement. As we clarified above, the investigator acted in this matter in contravention of the arrangement that was provided at that time in the guidelines of the military police investigation department and that was later enshrined in s. 227A1 of the Military Jurisdiction Law, according to which a soldier should be informed of his right to consult a lawyer whenever there is an almost certain likelihood that he will be arrested. In view of the aforesaid omission of the military investigator, the appellant was unaware of the right to consult a lawyer before his first statement was taken. Therefore the appellant did not ask to consult a lawyer before he confessed that he had used a dangerous drug while he was a soldier. In these circumstances, the parties before us agree that not giving the appellant the notice about his right to consult a lawyer amounted to a violation of the actual right to consult a lawyer (see para. 19 supra).

We have come to the conclusion that notwithstanding the aforesaid violation of the right to consult a lawyer, there was no substantial violation of the appellant’s right to autonomy of will and freedom of choice when he made his confession. In view of this, we held that we should not intervene in the decision of both instances of the court martial, which did not declare the confession of the appellant inadmissible under the provisions of s. 12 of the Evidence Ordinance. But this conclusion is insufficient to end our deliberations. There is a separate question as to whether there is a basis for excluding the aforesaid confession of the appellant in accordance with the case law doctrine of inadmissibility that we are adopting into our legal system. It should be stated that the aforesaid doctrine applies in the appellant’s case in view of what is stated in s. 476 of the Military Jurisdiction Law, that: ‘The rules of evidence that are binding in criminal matters in the courts of the state are also binding in a court martial…, when there is no contrary provision in this law.’ It should also be noted that even though s. 9 of the Basic Law: Human Dignity and Liberty provides a special limitations clause for the security forces, as a rule this does not change the fundamental balancing formula on which the case law doctrine of inadmissibility is based or the guidelines for exercising judicial discretion within this framework. If and in so far as it is required, the nature and character of the military service will affect the application of the criteria that we have discussed, in view of the circumstances of each case on its merits (on the special limitations clause provided in s. 9 of the Basic Law, see the opinion of Justice Zamir in HCJ 6055/95 Tzemah v. Minister of Defence [99], at pp. 262-267 {657-663}).

81. In the circumstances of the case before us, the first condition for applying the case law doctrine of inadmissibility is satisfied, since there is no dispute before us that the military investigator acted illegally when he refrained from notifying the appellant before beginning to take his statement about his right to consult a lawyer. It remains, therefore, to examine whether admitting the appellant’s confession as evidence in the trial will create a significant violation of his right to a fair criminal trial contrary to the terms of limitations clause.

We discussed above the importance of the right to consult a lawyer and its contribution to protecting the fairness and propriety of the interrogation proceedings (see para. 14 et seq.). In view of this, we said that a substantial violation of the right to consult a lawyer in the interrogation proceedings may in certain circumstances harm the fairness of the criminal justice process as a whole. In the appellant’s case, the District Court Martial held, by a majority, that the military investigator acted — throughout all the stages of the interrogation — knowingly and intentionally in violation of the defendant’s [the appellant’s] right to consult a lawyer, and there was no basis for holding him to have acted in good faith in this respect’ (p. 38 of the verdict). The Appeals Court Martial did not see fit to intervene in the aforesaid factual finding, and we too will refrain from doing so in the proceeding before us. The fact that the military investigator refrained intentionally from informing the appellant of his right to consult a lawyer and deliberately violated this basic right increases the severity of the illegality that was involved in obtaining the appellant’s confession and constitutes a weighty reason for excluding it as evidence. To this we should add the considerable ease with which it was possible to obtain the appellant’s confession lawfully, and also the fact that the offences attributed to the appellant are not the most serious ones in the statute book. On the other hand, it should be noted that in his arguments before the court martial, counsel for the defence confirmed that the illegality under discussion did not undermine the credibility of the content of the confession given by the appellant in his interrogation. But the prima facie credibility of the confession, in itself, is incapable of being a sufficiently weighty reason when confronted with all the other considerations that we have discussed. Therefore, we are drawn to the conclusion that in the unique circumstances of the case before us, admitting the confession of the appellant in evidence will create a substantial and disproportionate violation of his right to a fair criminal trial and therefore we should declare it inadmissible.

In addition to the aforesaid, we should point out that counsel for the appellant argued in the notice of appeal that was filed in the court that the violation of the duty to give notice of the right to consult a lawyer was not an isolated event and that at the time the appellant was interrogated, the aforesaid violation was a common phenomenon in the investigations of the military police investigations department. The National Public Defender’s Office raised a similar argument with regard to police investigations. In their written summations, the National Public Defender’s Office gave details of the results of a field survey carried out at the end of 1999 and during 2003. The research was conducted on a group of 220 persons under arrest in the Tel-Aviv District. It is argued that the findings of the research show that a significant number of persons under arrest at police stations do not receive a statutory notice of their right to consult a defence lawyer. I would remark on this that I doubt whether the research method and the population group size that was examined by it allow reliable and comprehensive conclusions to be reached as was claimed before us. Indeed, the Public Defender’s Office confirmed in its arguments that there may be a margin of error in the findings of the research that was conducted. Nonetheless in the case before us the need to decide this does not arise: first, as we have clarified above, the case law doctrine of inadmissibility is not based mainly on an educational-deterrent purpose. Therefore there is no need to prove that the illegality that was involved in obtaining the evidence is a common phenomenon, even if such proof is likely to be a circumstance that the court would take into account within the framework of its considerations. Second, in view of all the reasons that were set out above, and especially in view of the finding of the court martial that the military investigator intentionally refrained from advising the appellant of the right to consult a lawyer, the confession that the appellant made in the interrogation should be declared inadmissible, whether the violation of the duty to give the notice is a common phenomenon as alleged by the appellant and the National Public Defender’s Office, or not.

82. Consequently, in view of all the reasons that I have discussed above, I have reached the conclusion that we should allow the appeal in the appellant’s case and declare his confession inadmissible in accordance with the conditions of the case law doctrine of inadmissibility. The appellant should therefore be acquitted of the three offences of using a dangerous drug, whereas his conviction on the offence of possessing a dangerous drug that he confessed should remain unaffected. In so far as the appellant’s sentence is concerned, for the reasons set out above, the court martial refrained from imposing an actual custodial sentence for his conviction of the offences of making use of a dangerous drug, and it thought it sufficient to impose a suspended sentence for these offences. The operational period of the suspended sentence has already ended, and to the best of our knowledge the suspended sentence was not implemented during it.

I therefore propose that the appeal should be allowed and that the appellant should be acquitted of the three offences of making use of a dangerous drug.

 

 

President A. Barak

I agree.

 

 

Justice E. Rivlin

I agree.

 

 

Justice A. Procaccia

I agree.

 

 

Justice E.E. Levy

I agree.

 

 

Justice M. Naor

I agree.

 

 

Justice S. Joubran

I agree with the illuminating and comprehensive opinion of my colleague, Justice Beinisch.

 

 

Vice-President Emeritus M. Cheshin

I have read the magnum opus of my colleague, Justice Beinisch, and I agree with her conclusions, both with regard to the interpretation and implementation of the provisions of s. 12 of the Evidence Ordinance and with regard to the validity and effect of illegally obtained evidence. If I wish therefore to add two or three footnotes, these are not intended to derogate in any way from the illuminating remarks of my colleague.

2.            With regard to the interpretation and scope of application of the provisions of s. 12 of the Evidence Ordinance, as my colleague said in her opinion, the core of the interpretation proposed by her was inherent in the provisions of s. 12 already before the enactment of the Basic Laws. All that has happened is that the Basic Laws and the ‘spirit of the times’ have germinated the seed that was previously dormant and hidden within the provisions of s. 12; now that the seed has been germinated, it has been nourished by the Basic Laws and the ‘spirit of the times,’ and thus it has succeeded in sprouting and growing until it has brought forth fruit, which is the fruit that we now have before us.

3.            The interpretation currently being proposed for the provisions of s. 12 has two tributaries. The source of the first tributary in the language of s. 12. The court should ascertain that a confession brought before it as evidence was ‘free and willing,’ nothing more. But now this tributary is seeking to increase by one level or several levels the degree of abstraction of the concepts ‘free and willing,’ by determining that the essence of the matter before us, and other matters, is the autonomy of the individual and the freedom of choice given to him to make — or not to make — a ‘free and willing’ confession. Only someone who has personal autonomy — or, to put it another way, someone whose personal autonomy has not been substantially violated — can confess freely and willingly, and only a confession made by someone in this state can have a presumption of truth. Making a ‘free and willing’ confession is merely one of the manifestations of personal autonomy, and instead of focusing on the manifestation (the external appearance), we should prefer to examine the source, the root of the manifestation. It need not be said that the autonomy of the individual inherently includes also his right to physical and emotional wellbeing. We must remember and safeguard all this, because the formulation of criteria is only the beginning of the work; the essence lies in the methods of implementing them and in erecting fences around them.

4.            The second tributary is the ‘spirit of the times,’ an inspiration that we have been fortunate to receive from the Basic Laws, from the general atmosphere, and no less importantly from the spirit of the age that reaches us mainly from countries with which we have a common way of legal thinking. It has been said in case law on more than one occasion that the interpretation of a statute of the Knesset is not like the interpretation of an old inscription found in an archaeological excavation. A statute of the Knesset is like a living and breathing fabric that is nourished by the spirit and substance of society as it prevails from time to time. The basic principles and doctrines that are a product of the age enter into the law and nourish its roots. We ourselves are the products of the ‘spirit of the times,’ and with our spirit — the ‘spirit of the times’ — we will establish and strengthen the law. See and cf. CFH 7325/95 Yediot Aharonot Ltd v. Kraus [100], at pp. 71 et seq.; LCA 6339/97 Roker v. Salomon [101], at pp. 265 et seq..

5.            ‘This person came to reside and he has acted as a judge’ was the angry complaint of the wicked people of Sodom against Lot (Genesis 19, 9 [111]). We too can say this — here in the positive sense of the expression — with regard to the doctrine called the doctrine of ‘relative voidance’ or ‘relative result.’ The doctrine came to us only recently, and it has taken control of spheres of law that our predecessors never imagined. And it is also true that we have always availed ourselves of this doctrine (in part), albeit not under this name. So we see that the doctrine proposed by my colleague, Justice Beinisch, with regard to the inadmissibility of evidence that was obtained by means of an illegal criminal proceeding — a doctrine of ‘relative inadmissibility’ — is merely a child of its parent, the doctrine of ‘relative result.’

6.            A final comment: we are discovering, not for the first time, that history repeats itself, albeit on higher levels of sophistication and abstraction than in the past. Thus we see that during the formative period of the common law, the courts fashioned raw materials into fundamental principles, doctrines and patterns of thinking. In the next stage, the more advanced stage, the courts, as well as the legislature, took steps to crystallize the rules of law, to pour the primeval material into more rigid utensils, which were supposed to make it easier for the courts to apply the law to sets of facts that came before them for a decision. The purpose of the crystallization was that instead of the courts being required to concern themselves, again and again, with tens or maybe hundreds of precedents, the courts and the legislature created relatively strict formulae to facilitate the work of the courts. And now we come to the present. The time has come to make strict frameworks flexible, to interpret concepts according to their purpose, to examine the origins of rules, to infuse into rules that have been established the ‘spirit of the times’ and the concepts of justice that are accepted by us at this time. This is what my colleague Justice Beinisch has done, and may she be blessed for it.

 

 

Justice A. Grunis

1.            My colleague Justice D. Beinisch discussed in her comprehensive and penetrating opinion a long list of legal issues in the field of the rules of criminal evidence. Because of various constraints, I cannot elaborate on the many questions that arise and I will state my position briefly and succinctly, from the difficult issues to the easier ones, or, to be more precise, from general principles to the specific case.

2.            The preliminary and first question that arises is whether it is desirable that the court should adopt, by means of ‘judicial legislation,’ a broad doctrine concerning the inadmissibility of illegally obtained evidence. Indeed, my colleague restricts and qualifies the scope of the doctrine, but still the question remains as to whether such a significant step ought not to be taken by the legislature, particularly in view of the fact that specific arrangements with regard to the admissibility of evidence that originated in illegal acts were enacted by the Knesset (s. 12 of the Evidence Ordinance [New Version], 5731-1971 (hereafter — the Evidence Ordinance); s. 13 of the Eavesdropping Law, 5739-1979 and s. 32 of the Protection of Privacy Law, 5741-1981), and at a time when draft laws on the issue have once again been tabled in the Knesset. Since the opinion of my colleagues supports the adoption of such a doctrine, I too shall address the merits of the matter.

3.            In my opinion, before we begin to examine the important question under discussion — the adoption of a doctrine concerning the inadmissibility of illegally obtained evidence — we should examine the values that we are interested in realizing, and in particular we are obliged to determine the importance of those values relative to one another. In my opinion, the highest value that should concern us is to restrict, in so far as possible, the fear of false convictions. The next most important value is the public interest in achieving the conviction of those persons who have committed crimes. The combination of these two values, even from the viewpoint of their relative status, is expressed in the statement ‘better ten guilty men go free than one innocent one be convicted,’ or, in the language of Maimonides: ‘It is better and more desirable to acquit a thousand offenders than to kill one innocent person at some time in the future’ (Maimonides, Sefer HaMitzvot, Prohibitions, 290 [112]). On the next level of importance, we arrive at the need to safeguard the fairness of the criminal trial in its procedural aspect, as distinct from its ultimate purpose, namely the determination of the accused’s guilt or innocence.

4.            Throughout the opinion of my colleague Justice Beinisch, she mentions the transition that has occurred in recent decades in the sphere of the rules of evidence, from admissibility to weight. Arrangements that determined in what conditions evidence would be admitted have been replaced by the rule that holds almost all evidence to be admissible, so that the court will consider it and will be required to determine its weight. Those who support this approach believe that it gives expression to the main purpose of the court, which is discovering the truth. The argument against admissibility barriers is that they may impede the ability of the court to discover the truth, since it will be obliged to ignore relevant evidence. There is no doubt that in certain cases the approach that bars admissibility will result in the truth not coming to light. We should remember that in the vast majority of cases such an approach within the framework of the criminal trial will work against the prosecution and not against the accused. The result is likely to be that the guilty person is acquitted in his trial because incriminating evidence was not admitted. By contrast, admitting the evidence and moving the scrutiny to the question of weight is likely to result in there being cases where the innocent man is found guilty. In my opinion, these opposites of the innocent and the guilty should not be treated equally. The transition from admissibility to weight is likely to create a symmetry between them. In this regard, I can merely cite the remarks of Justice S. Levin, in the minority opinion in State of Israel v. Tubul [67], at pp. 359-360:

‘In addition to theoretical questions of interpretation, from between the lines and from the very lines of the opinion of the majority justices there emerges an approach that if the courts remove the “technical barriers” of admissibility that confronted them in the past and still do today, the power of the court to do justice and to determine the facts as they really were will be increased; this approach gives decisive weight to what it regards as the unlimited power of the courts to discover the truth on the basis of their impression of the testimonies alone, and it seeks to remove from its path procedural and evidential rules that, in the opinion of the supporters of this approach, have become antiquated.

In my opinion, the approach of the majority judges is too simplistic; it emphasizes individual cases in which the court, because of evidence that was excluded, did not discover the truth (and such cases definitely do exist) but it ignores the existence of many other cases in which different judges may be impressed differently by particular evidence and therefore reach different factual findings from one another; not only is the discernment capacity of different judges dissimilar, but sometimes the period of time during which the evidence is heard and the short time during which a witness is on the witness stand do not allow the court to reach sufficiently definite conclusions, and in addition, the “truth” is determined only according to reality as it appears from the evidence, which may not reflect reality as it truly is. In such circumstances, providing so-called “formal” evidential barriers is capable of balancing the picture and changing the result, to some extent, in favour of standardization in determining factual findings, contributing to legal certainty and serving as a kind of constitutional safeguard against mistakes or arbitrariness; the existence of “formal” barriers as aforesaid is especially required in a legal system like ours, in which the determination of factual findings is usually solely the province of the trial court, and the court of appeal does not tend to intervene in these except in special and rare cases. It should be noted that I do not intend to say that every “formal” provision is desirable merely because it is such, but that in each case we should examine to what extent it serves a worthy purpose and is intended to balance risks that should be avoided…

There is no doubt that any legal system that prefers the existence of evidential or procedural safeguards to the unlimited discretion of the court, or that excludes them, pays a price as compared with the opposite system. Indeed, in every case where there is a conflict between the approaches, the legislator or the interpreter, as applicable, must create the appropriate balancing formula that will, in so far as possible, give the proper weight to the conflicting interests and considerations.’

It should be noted that the fear of false convictions is even greater when we are concerned with a confession, since the additional evidence required for a conviction on a confession is minimal.

5.            My colleague Justice D. Beinisch considered at length the interpretive development of s. 12 of the Evidence Ordinance. It is clear that originally the section applied only to cases in which there was at least a doubt as to the credibility of the confession. Case law extended the interpretation of the section so that in certain circumstances there was no further need to ascertain how the action of the person in authority affected the credibility of the confession. The broader approach is consistent with the approach that a violation of the autonomy of the person under interrogation (who later becomes the accused) or his freedom of choice is what lies at the heart of s. 12. I wonder whether today, when the doctrine of illegally obtained evidence is being adopted, there is no basis for returning to the original interpretation of s. 12. In other words, the question is why we do not leave outside the framework of s. 12 the problematic cases in which there is no difficulty with regard to the credibility of a confession, so that these will be subject to the same rules of the doctrine that apply with regard to the other types of evidence.

6.            Another point that should be considered concerns the distinction between a confession of an accused and a statement of a witness (or of another defendant in the same indictment). Consider a case in which the confession of an accused is also used as evidence against another defendant (in one indictment). Let us assume that because of various defects in the investigation, the court decides that the confession should not be admissible against the accused who confessed because of a doubt as to its credibility. Is it possible that the very same evidence will be admissible against another defendant in the indictment? (See A. Stein, ‘Section 10A of the Evidence Ordinance and its Interpretations: a Positive Development or Danger of a Miscarriage of Justice?’ 21 Hebrew Univ. L. Rev. (Mishpatim) 325 (1992), at p. 339, footnotes 15-16). I think that case law has not gone so far as to hold that it is possible to rely on the statement against the other defendant, even if it is inadmissible in evidence against the person who made it because of the issue of credibility (the problem arose in Hazan v. State of Israel [98]; see the opinion of Justice S. Levin, at p. 526). I fear that the adoption of the doctrine is likely to lead to a slippery slope that in the end will result in a confession that is inadmissible against one defendant because of the problem of credibility (under s. 12 of the Evidence Ordinance) serving as a basis for a conviction of another defendant (according to the tests of the general doctrine).

According to my colleague’s position, we should examine the seriousness of the offence within the framework of all the considerations that the court should take into account when it decides how to address illegally obtained evidence. In other words, the more serious the offence, the less justification there will be for excluding the illegally obtained evidence. I agree with this only when there is no problem of credibility for a reason that would exclude a confession under s. 12 of the Evidence Ordinance according to its original interpretation. It is difficult to accept that it is not possible to rely on certain evidence in a case where the offence is a minor one, whereas it will be possible to make use of the same evidence when the offence is a serious one. The consideration of the seriousness of the offence will be permitted if the reason for the argument of inadmissibility is unrelated to credibility. Naturally, certain steps or actions of investigation authorities may be considered to create an absolute presumption with regard to undermining credibility (see Muadi v. State of Israel [36]).

7.            I shall now turn to two points that concern the facts of the case. It will be remembered that the appellant was not told by the military policeman who interrogated him that he was entitled to consult a lawyer. The policeman said to the appellant that he had the right to remain silent. Should the confession made by the appellant be excluded in these circumstances? There is no dispute that the interrogator violated his duty to notify the appellant of his right to consult a lawyer. Notwithstanding, there is no claim in the present case that there is a question as to the credibility of the confession. My opinion is that since the appellant was aware of his right to remain silent, the violation of the duty to notify him of the right to consult a lawyer, in itself, does not justify the exclusion of the confession. Had the interrogator also refrained from telling the appellant that he had the right to remain silent, it is possible that the two omissions jointly would justify the exclusion of the confession.

8.            The last point concerns the question of whether, and to what extent, we should attach weight to the intention of the interrogator, who, it will be remembered, intentionally refrained from notifying the appellant of his right to consult a lawyer. According to the position of my colleague Justice D. Beinisch, the finding that this was an intentional omission is a circumstance of considerable weight for excluding it as evidence. I will make two remarks about this: first, I have difficulty in understanding, in view of the circumstances of the case, what connection there is between the intention of the interrogator and the determination of inadmissibility. It is possible that considerable weight should be attached had the main purpose of the rule of inadmissibility been an educational-deterrent one. But according to the approach of my colleague, this is not the dominant purpose. Second, when we are speaking of a policeman whose job it is to interrogate suspects or witnesses, can we accept that such an omission is ever unintentional?!

9.            Therefore, were my opinion accepted, we would deny the appeal.

 

 

Appeal allowed, by majority opinion (Justice Beinisch, President Barak, Vice-President Emeritus Cheshin and Justices Rivlin, Procaccia, Levy, Naor and Joubran), Justice Grunis dissenting.

3 Elul 5765.

7 September 2005.